I’m sure this is a simplistic analysis and I’m missing something, but the decision today seems to be almost the definition of an activist court decision*:
The court found a right to free speech for corporations and labor unions, where no such right seems to exist in the constitution to
override the will of the people as expressed by the legislative and executive branch while
abandoning Supreme Court precedent for similar restrictions in the past all while
there seems to be a compelling government interest to restrict such speech by these entities to avoid corrupting the democratic process.
Can someone (I’m hoping one of the lawyers on the board) please show me where I went wrong? I haven’t read the opinions, just summaries in the media, but maybe someone can also help me figure out how the originalist and textualists in the majority danced around some of the issues.
RS
No, not the definition that says that an activist court is one that does something that I don’t like.
That part of the First Amendment makes no mention of natural persons, as distinct from artificial persons such as corporations. So exactly why should it be limited to natural persons?
I guess I’d like a cite that the founders in any way considered a corporation to be a “person”, even an artificial one, especially one that would get protection under the Bill of Rights. Under that reading, don’t anti-trust laws run afoul of freedom of association rights? Why can’t the American Airlines person get together with other airlines people and decide what to charge for fares?
So, again, unless Scalia or Thomas can find that specifically in the text or in contemporaneous writings, it would seem to be a non-textualist and non-originalist ruling.
Well, first of all, it wouldn’t be the writings of the founders you’d have to look at. The idea of corporate personhood comes from the 14th amendment, so if you wanted to make an originalist argument, you’d have to look at what the drafters of the 14th amendment thought about the status of corporations.
Secondly, it wouldn’t be this court that was being activist, even if you were to make the argument. The first case where corporate personhood was established was Santa Clara v Southern Pacific, in 1886. Then, later, in Buckley v Valeo (1976), the court said that political donations were speech.
So it’s not really abandoning precedent. It’s in line with Supreme Court precedent.
I don’t think anyone thinks a corporation or labor union is a person in the context of having free speech rights, but it represents people (shareholders or members, as the case may be) who have such rights.
Can you expand on the 14th Amendment comment. I think I’ve seen that elsewhere, but I’m not sure I follow it.
I’m also pretty sure that the Court has allowed other restrictions on political speech by corporations, but I don’t have that at my fingertips. I’ll see what I can dig up and get back.
It still seems pretty activist to me in this case – they specifically asked for a re-argument of this case. Then, they went for a broad ruling, when they generally try to go for narrow rulings. In this case, they could have ruled that the point was moot, since the election was over, or that the statute wasn’t meant to cover 90 minute movies, just short television or radio spots, or that the specific entity bringing the case wasn’t meant to be covered. Instead, they reached far in order to overrule a law passed by congress and signed by the president.
The difference, at least in my mind, is that labor unions are, by their very nature, political, in that they exist to defend and promote the well-being of their members, but also for labor in general (hence, the tradition of one union’s members refusing to cross anothers picket lines.) They stand for the working class against the depredations of the running dog jackals of the ruling class. Or, at least, in theory. But like a political party, their very reason for existence is political.
By contrast, the shareholder is concerned with a business, his interest is fiscal, not political. A corporation can choose to pursue political power, but is not compelled to, a union has no such option.
Given the devotion with which some Americans serve Mammon, you might approach the queston on the grounds of religious freedom.
Not people. Profit. Corporations “represent” desire to make money. What’s good for the country barely enters the equation. Their participation in political campaigns will be mountains of bullshit that will all boil down to “our corporation can make more money if people vote ___”. It’s bad enough as is. Do we really need to magnify the effect? Real people still have free speech.
I’d say that labor unions are, by their very nature, economic. They exist so that workers can negotiate collectively with their employers for more pay and better working conditions. Their political work came out of that, when they realized that they could successfully lobby the government to pass laws mandating better treatment for workers. But I don’t see that as any different than Exxon, for instance, lobbying the government to pass laws allowing easier drilling. In both cases, the political work is auxiliary to and exists to promote their economic interest.
The court cases that established that corporations had rights protected by the constitution found those rights protected by the 14th amendment provision that no state shall “deprive any person of life, liberty, or property, without due process of law”.
See, there are two questions here:
Can entities like corporations be “persons” under the law? That’s to say, do they have an independent legal identity independent of their members; can they be sued and sue, can they hold property, etc?
If corporations are persons, do they have the rights guaranteed to persons under the Constitution?
The first question has been established since the middle ages. It’s what incorporation is all about, and is an established part of English common law. Corporations were rare until the industrial revolution, because the only way they could be established was by specific chartering legislation, but they existed.
The second was what the court decided in the 1880s…that the Constitution, thanks to the 14th amendment guaranteed corporate persons rights that human persons had.
Unions have very little money and power compared to corporations. As a bonus a lot of corporations have strong foreign ownership. They will be able to push a different counties agenda in American politics. This ruling was wrong in so many ways.
The court did not make any such ruling. The chief justice at that time made it plain the case was not about personhood. But the court recorder who was a railroad executive before ,added it in. The decision was signed. Back then the whole court system was quite different than it is now. Their ruling did not hit the public within hours. Few even knew what happened.
The constitution ,the Bill of Rights and the amendments do not specifically mention corporations.
Interesting claim. It would mean that a key ruling enshrined into law was basically slipped in by someone illegitimately. What’s your source for this? Has anyone tried to strike it down on that basis? What were the results, and why?
Santa Clara County v. Southern Pacific Railroad Co. - Wikipedia Here is a Wiki article. I read it years ago. It is a joke to declare corporations people. They don’t die. They are like the Terminator. They just keep on fighting for more power and control decade after decade.
The Santa Clara Blues: Corporate Personhood versus Democracy by William Meyers Here is another one . The Santa Clara decision was not meant to do what it did. It should have been reversed on that alone. But it seems to have provided precedent to other decisions which continue to stray farther and farther from the country controlling corporations to the reverse.
In that case, I turn to legal dopers: could that aspect of the Santa Clara decision be overturned on the basis of the incident described in the above links? Why or why not?
I’m way out of my league here, but people have the right to peaceably assemble, and people have the right to free speech. This, to me, indicates that the Bill of Rights protects the speech of groups of people. Groups like corporations and unions. And professional societies. And churches. And knitting circles and book discussion groups and militias and cults. And political parties.
The only question is whether money counts as speech, and I agree with the court that it does, at least when it comes to campaign financing. Campaigning = speech. Sure, funneling money to Al Qaida shouldn’t be protected as speech, but airing TV ads sympathetic to terrorists should be. There really shouldn’t be anything stopping Bill Gates from pumping non-stop ads into living rooms saying “Vote for Ike. He’s my man”. If you don’t like it, turn off the TV.
Because it was obiter, and so not binding, the origin is unimportant. What is important is that later courts decided it was a good idea and endorsed it, making it a binding ratio. Sure if it was made up whole cloth, that’s unfortunate, but it no way changes the status of a precedent that has since been superseded by unequivocal modern judgments.