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Everybody seems to argue about this issue without ever referring to the text of the first amendment, which is what the majority of the Supreme Court based its d

Everybody seems to argue about this issue without ever referring to the text of the first amendment, which is what the majority of the Supreme Court based its decision on. The first amendment says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." To me, it seems pretty obvious that by passing McCain-Feingold, Congress had made a law "abridging the freedom of speech." It should not be surprising that it was ruled unconstitutional.

mbreese 17y ago
But the freedom of speech isn't absolute. It never has been and never will be. There are certain limits to it, and it's up to Congress to establish those limits. (It's also up to the SCOTUS to make sure Congress doesn't go too far). In the decision, the question wasn't "does this prohibit the freedom of speech", it was "does a corporation have the freedom of speech" in the first place. The argument could be reframed (based upon my limited reading of the decision) as "Does a person have the freedom to hear the speech of a corporation?". In this case, yes, they do. But they don't have to listen to it. And this is where I think there is still some play with McCain-Feingold in that perhaps it could be reworked to include a ban on corporations to use broadcast media w/in 30 days of an election. They could put up a website, print pamphlets, etc... but just not use a passive medium for their message.
- CWuestefeld 17y ago
  the question wasn't "does this prohibit the freedom of speech", it was "does a corporation have the freedom of speech" in the first place. No, that wasn't it. The question was, "when acting in concert as a corporate body, do people retain their freedom of speech". Nobody has shown a compelling reason why people acting together shouldn't have the same rights as each of us has individually.
  - crux_ 17y ago
    The limited liability granted to corporations is an excellent reason why they shouldn't have the same rights as a person. After all, they don't have the same responsibilities. But a more basic reason is that a corporation is not a person! It's not a group of people, either, or they would call it a collective, co-op, or a partnership -- it is its own thing and there is no inherent reason whatsoever why it should have any rights at all, including the right to exist except as explicitly allowed by law.
    - Semiapies 17y ago
      "It's not a group of people, either, or they would call it a collective, co-op, or a partnership" That seems circular.
      - crux_ 17y ago
        Rephrasing that point: if a corporation was really merely a group of individuals working collectively, why invent another word rather then reuse one of the many existing ones?
        Semiapies 17y ago
        You could ask the same question about the words "collective", "co-op", or "partnership".
  - abstractbill 17y ago
    Calling a corporation "people acting together", or just "a group of people" downplays the fact that corporations are indeed made up of many people but with only a very few of those people able to exert any real control over the whole entity.
    - cynicalkane 17y ago
      Most large assemblies of people are like that. Unions are like that. Political action groups are like that. Underground movements are like that. The impracticalities of having everyone agree on everything means that whenever you have a large assembly of people you must hand over control to decision-makers. Shareholders do have ultimate control over corporations, by the way. But shareholders, generally, would rather sell their stock--or fall asleep at the wheel--then exercise corporate governance. But that's besides the point. You are downplaying the fact that the Constitution clearly grants us right to assembly, in the same amendment that grants us free speech, and an assembly of people has the right to speech just as much as a person does. According to jurisprudence, the government may only curtail these rights with laws that meet a "strict scrutiny" standard: they must meet a compelling government interest, they must be narrowly tailored, and they must be close to minimally restrictive. McCain-Feingold does not meet the second and third standards, and 4 justices think it does not meet the first.
- jsyedidia 17y ago
  Yes, the four justices that dissented had arguments too, but I personally think one needs to stretch quite far to find McCain-Feingold constitutional. The text of the decision (including dissents) at http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf gives all the arguments, and is very informative. (But reading it in full would probably be a waste of time...)
CWuestefeld 17y ago
Exactly. Trying to conflate Freedom of Speech with eligibility for public office can't be anything other than intentional misdirection. US Constitution, Article 1 Section 2: No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. Does a corporation pass any of those tests? So why the heck do they make out like this is some kind of crisis?
- jackowayed 17y ago
  Well they aren't a person who shall be a Representative. They're a corporation that shall be a representative. The Constitution doesn't say that only people may run for Congress, only that if a person chooses, he has special restrictions. Now, the state election laws may make it impossible for them to get on the ballot, but the Constitution doesn't put any restrictions on a corporation that shall be a Representative.
  - pyre 17y ago
    But the point that sparked this thread was about corporate personhood (i.e. the law says that a corporate is a person). So arguing that a corporation isn't a person under these restrictions is kind of circular.
  - CWuestefeld 17y ago
    Perhaps you forgot to read my post to which your responded. Or else, can you describe in what way a Corporation is, in fact, a citizen of the United States?
    - jackowayed 17y ago
      My point is that, from a very literal standpoint, since they didn't say "you must be a person that ... to be a Representative", there's no actual restriction saying that only people may be Representatives. It just says that certain restrictions apply to people who wish to be representatives. If you're not a person, then " No Person shall be a Representative who ..." doesn't restrict you. It's splitting hairs to the max, and I'm sure a court would find some way around it if it ever got there.
tsally 17y ago
For your claim to be true money must in some way be related to the ability to exercise free speech. Consequently, an absolute interpretation of the 1st amendment means taxation is a violation of free speech. Time to abolish taxes, then? In practice freedom of speech is a sliding scale. See the public school system. There we have determined that education of our youth is more important than absolute free speech. Perhaps democracy is more important as well? We make these pragmatic decisions about the 1st amendment all the time. The suggestion that it is an absolute is completely untenable. Further, if you continue to adhere to a strict constructionist interpretation of the constitution, will you make a public statement against hostile takeovers by shareholders? The text of the thirteenth amendment reads: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." If we really are treating corporations as people protected under the constitution, you shouldn't be able to take over a company against the management's wishes. I hope I've made it clear that absolute interpretation of the constitution in this case is not a valid interpretation. Regardless of the constitutionality of McCain-Feingold, literally interpreting the 1st amendment is an invalid argument against the legislation.
- gojomo 17y ago
  McCain-Feingold wasn't just about expenditures. The government argued it could ban or confiscate books/movies based on who paid for them, or a tiny proportion of candidate/issue advocacy during election season. The first three paragraphs of this piece, by a major McCain-Feingold opponent, capture the overbroad reach of the FEC's claims: http://www.nationalaffairs.com/publications/detail/the-myth-of-campaign-finance-reform http://www.nationalaffairs.com/publications/detail/the-myth-...
  - tsally 17y ago
    You're right. I am not trying to argue that McCain-Feingold is constitutional. Rather, I'm trying to point out that a literal interpretation of the constitution in this case is invalid. It's a simplistic argument that sounds good at first but doesn't hold up under critical analysis. I just did some recent edits to better express my point of view.
jberryman 17y ago
> Everybody seems to argue about this issue without ever referring to the text of the first amendment, which is what the majority of the Supreme Court based its decision on. No it isn't. If the correct decision were obvious from the text then it would have never been heard by the Supreme Court.
mbreese 17y ago
Here is what I'm worrying about... will there be a purpose formed corporation whose sole goal is the election of an individual? They could accept money from investors to finance their operation. Then in the last 2 weeks of an election buy all available airtime nationwide (or just in swing states) and say just spout total lies about an opponent. Something like "XXX will force us into a fascist government". 24x7 before an election. Given enough money, they could buy all the airtime available, leaving no time for any opposition ads. They have the right to lie, and if they are sued for liable / defamation, etc... they are a corporation that can be disbanded. And because they are a corporation, there is limited liability to the owners.
- Semiapies 17y ago
  Have you never heard of PACs, MoveOn - or for that matter, political parties? These are organizations that exist for this sort of purpose. Why would some special-purpose single-election non-profit be any more "dangerous" than the sort of organizations that already exist?
- fleitz 17y ago
  Corporations are already formed for the sole purpose of electing an individual aka. The Committee to Elect Barack Obama. Also, buying all the airtime is basically impossible as it decreases supply while increasing demand. Once investors realized someone was trying to do that, they'd buy ad space just to sell to that company. It would be incredibly expensive to organize all the sub-companies needed to buy it all with out anyone noticing. If anyone notices the gig is up as investors will swoop in to take a cut of the action. Besides, if anyone actually managed to do that, it would be VERY easy for the other side to get articles written about how their viewpoints can't be expressed. It would generate so much free publicity for the other campaign that it would likely be counterproductive. I'd love to be the candidate opposing the guy who bought all the ad time. It's pretty much a guaranteed victory because of the public backlash that would result.
  - amalcon 17y ago
    It would be incredibly expensive to organize all the sub-companies needed to buy it all with out anyone noticing. Rockefeller did it. Both Senior and Junior, actually. On multiple occasions. Now, there's probably nobody alive today with that kind of capital and influence to burn on this (with possible exception of Bill Gates and the House of Saud, both of whom seem to have other plans for their money).

mbreese 17y ago

But the freedom of speech isn't absolute. It never has been and never will be. There are certain limits to it, and it's up to Congress to establish those limits. (It's also up to the SCOTUS to make sure Congress doesn't go too far). In the decision, the question wasn't "does this prohibit the freedom of speech", it was "does a corporation have the freedom of speech" in the first place. The argument could be reframed (based upon my limited reading of the decision) as "Does a person have the freedom to hear the speech of a corporation?". In this case, yes, they do. But they don't have to listen to it. And this is where I think there is still some play with McCain-Feingold in that perhaps it could be reworked to include a ban on corporations to use broadcast media w/in 30 days of an election. They could put up a website, print pamphlets, etc... but just not use a passive medium for their message.

CWuestefeld 17y ago
the question wasn't "does this prohibit the freedom of speech", it was "does a corporation have the freedom of speech" in the first place. No, that wasn't it. The question was, "when acting in concert as a corporate body, do people retain their freedom of speech". Nobody has shown a compelling reason why people acting together shouldn't have the same rights as each of us has individually.
- crux_ 17y ago
  The limited liability granted to corporations is an excellent reason why they shouldn't have the same rights as a person. After all, they don't have the same responsibilities. But a more basic reason is that a corporation is not a person! It's not a group of people, either, or they would call it a collective, co-op, or a partnership -- it is its own thing and there is no inherent reason whatsoever why it should have any rights at all, including the right to exist except as explicitly allowed by law.
  - Semiapies 17y ago
    "It's not a group of people, either, or they would call it a collective, co-op, or a partnership" That seems circular.
    - crux_ 17y ago
      Rephrasing that point: if a corporation was really merely a group of individuals working collectively, why invent another word rather then reuse one of the many existing ones?
      - Semiapies 17y ago
        You could ask the same question about the words "collective", "co-op", or "partnership".
- abstractbill 17y ago
  Calling a corporation "people acting together", or just "a group of people" downplays the fact that corporations are indeed made up of many people but with only a very few of those people able to exert any real control over the whole entity.
  - cynicalkane 17y ago
    Most large assemblies of people are like that. Unions are like that. Political action groups are like that. Underground movements are like that. The impracticalities of having everyone agree on everything means that whenever you have a large assembly of people you must hand over control to decision-makers. Shareholders do have ultimate control over corporations, by the way. But shareholders, generally, would rather sell their stock--or fall asleep at the wheel--then exercise corporate governance. But that's besides the point. You are downplaying the fact that the Constitution clearly grants us right to assembly, in the same amendment that grants us free speech, and an assembly of people has the right to speech just as much as a person does. According to jurisprudence, the government may only curtail these rights with laws that meet a "strict scrutiny" standard: they must meet a compelling government interest, they must be narrowly tailored, and they must be close to minimally restrictive. McCain-Feingold does not meet the second and third standards, and 4 justices think it does not meet the first.
jsyedidia 17y ago
Yes, the four justices that dissented had arguments too, but I personally think one needs to stretch quite far to find McCain-Feingold constitutional. The text of the decision (including dissents) at http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf gives all the arguments, and is very informative. (But reading it in full would probably be a waste of time...)

CWuestefeld 17y ago

Exactly. Trying to conflate Freedom of Speech with eligibility for public office can't be anything other than intentional misdirection. US Constitution, Article 1 Section 2: No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. Does a corporation pass any of those tests? So why the heck do they make out like this is some kind of crisis?

jackowayed 17y ago
Well they aren't a person who shall be a Representative. They're a corporation that shall be a representative. The Constitution doesn't say that only people may run for Congress, only that if a person chooses, he has special restrictions. Now, the state election laws may make it impossible for them to get on the ballot, but the Constitution doesn't put any restrictions on a corporation that shall be a Representative.
- pyre 17y ago
  But the point that sparked this thread was about corporate personhood (i.e. the law says that a corporate is a person). So arguing that a corporation isn't a person under these restrictions is kind of circular.
- CWuestefeld 17y ago
  Perhaps you forgot to read my post to which your responded. Or else, can you describe in what way a Corporation is, in fact, a citizen of the United States?
  - jackowayed 17y ago
    My point is that, from a very literal standpoint, since they didn't say "you must be a person that ... to be a Representative", there's no actual restriction saying that only people may be Representatives. It just says that certain restrictions apply to people who wish to be representatives. If you're not a person, then " No Person shall be a Representative who ..." doesn't restrict you. It's splitting hairs to the max, and I'm sure a court would find some way around it if it ever got there.

tsally 17y ago

For your claim to be true money must in some way be related to the ability to exercise free speech. Consequently, an absolute interpretation of the 1st amendment means taxation is a violation of free speech. Time to abolish taxes, then? In practice freedom of speech is a sliding scale. See the public school system. There we have determined that education of our youth is more important than absolute free speech. Perhaps democracy is more important as well? We make these pragmatic decisions about the 1st amendment all the time. The suggestion that it is an absolute is completely untenable. Further, if you continue to adhere to a strict constructionist interpretation of the constitution, will you make a public statement against hostile takeovers by shareholders? The text of the thirteenth amendment reads: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." If we really are treating corporations as people protected under the constitution, you shouldn't be able to take over a company against the management's wishes. I hope I've made it clear that absolute interpretation of the constitution in this case is not a valid interpretation. Regardless of the constitutionality of McCain-Feingold, literally interpreting the 1st amendment is an invalid argument against the legislation.

gojomo 17y ago
McCain-Feingold wasn't just about expenditures. The government argued it could ban or confiscate books/movies based on who paid for them, or a tiny proportion of candidate/issue advocacy during election season. The first three paragraphs of this piece, by a major McCain-Feingold opponent, capture the overbroad reach of the FEC's claims: http://www.nationalaffairs.com/publications/detail/the-myth-of-campaign-finance-reform http://www.nationalaffairs.com/publications/detail/the-myth-...
- tsally 17y ago
  You're right. I am not trying to argue that McCain-Feingold is constitutional. Rather, I'm trying to point out that a literal interpretation of the constitution in this case is invalid. It's a simplistic argument that sounds good at first but doesn't hold up under critical analysis. I just did some recent edits to better express my point of view.

jberryman 17y ago

> Everybody seems to argue about this issue without ever referring to the text of the first amendment, which is what the majority of the Supreme Court based its decision on. No it isn't. If the correct decision were obvious from the text then it would have never been heard by the Supreme Court.

mbreese 17y ago

Here is what I'm worrying about... will there be a purpose formed corporation whose sole goal is the election of an individual? They could accept money from investors to finance their operation. Then in the last 2 weeks of an election buy all available airtime nationwide (or just in swing states) and say just spout total lies about an opponent. Something like "XXX will force us into a fascist government". 24x7 before an election. Given enough money, they could buy all the airtime available, leaving no time for any opposition ads. They have the right to lie, and if they are sued for liable / defamation, etc... they are a corporation that can be disbanded. And because they are a corporation, there is limited liability to the owners.

Semiapies 17y ago
Have you never heard of PACs, MoveOn - or for that matter, political parties? These are organizations that exist for this sort of purpose. Why would some special-purpose single-election non-profit be any more "dangerous" than the sort of organizations that already exist?
fleitz 17y ago
Corporations are already formed for the sole purpose of electing an individual aka. The Committee to Elect Barack Obama. Also, buying all the airtime is basically impossible as it decreases supply while increasing demand. Once investors realized someone was trying to do that, they'd buy ad space just to sell to that company. It would be incredibly expensive to organize all the sub-companies needed to buy it all with out anyone noticing. If anyone notices the gig is up as investors will swoop in to take a cut of the action. Besides, if anyone actually managed to do that, it would be VERY easy for the other side to get articles written about how their viewpoints can't be expressed. It would generate so much free publicity for the other campaign that it would likely be counterproductive. I'd love to be the candidate opposing the guy who bought all the ad time. It's pretty much a guaranteed victory because of the public backlash that would result.
- amalcon 17y ago
  It would be incredibly expensive to organize all the sub-companies needed to buy it all with out anyone noticing. Rockefeller did it. Both Senior and Junior, actually. On multiple occasions. Now, there's probably nobody alive today with that kind of capital and influence to burn on this (with possible exception of Bill Gates and the House of Saud, both of whom seem to have other plans for their money).