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« The color of money | Main | All you need to know »

Jan 26, 2010


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Even without the Court decision a foreigner could buy airtime in the U.S., so this is much ado about nothing. Sabre rattling by liberals who are upset that corporations (mainly non-profits) have the same rights as labor unions and other liberal interest groups to exercise First Amendment rights.

The First Amendment is pretty clear to me with no exceptions applicable here. The last time I checked, even foreigners visiting in the U.S. enjoy the rights under that Amendment. If you don't like it, amend the Constitution.


So interesting that rights are being awarded to entities that did not even exist when the Constitution was being written. I think it is a given that the freedom that is most important to corporations is the freedom to conduct business as they please, as opposed to the freedoms to individual citizens protected by the bill of rights.
Corporations are powerful institutions that already enjoy political favor far beyond the average citizen or group. Why the individual Supreme Court Justices ruled as they did is a mystery but in my opinion their ruling reveals more about their personal bias than it does their love of the Constitution or the future of our Republic.


"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"

What part of that says "this shall not apply to corporations or any other interest group"? How about a law that says "No company shall advertise its services in print, television, or any other media. Any such publication shall be punishable by a fine or imprisonment of any person acting on behalf of said company." The First Amendment either applies, or it does not. I see no exceptions to its application based on the entity making the statement.

Andrew Brod

Of course Spag is wrong. There are numerous restrictions on speech that have long been understood to be within Constitutional parameters. The most well-known example is crying "fire!" in a crowded theater. Anyone who knows anything about this can think of others.


Of course Andrew is wrong and doesn't really know what he is talking about. Can you show me the law in North Carolina that makes it illegal to shout "fire!" in a theater? It's not the speech that is regulated in that often misused analogy, it's the conduct. See Brandenburg v. Ohio.

Perhaps Andrew can offer a Constitutional basis for restricting the free speech of corporations. The correct legal standard would be "compelling state interest". The minute you apply that to the political speech of one entity, you then have to apply it to others or you have an equal protection violation.

Let's say Michael Moore goes on television and tells us what big jerks General Motors are. He even makes a movie about it. Is General Motors prohibited from using their money to respond? Suppose Michael Moore pays for ads that argue for candidate A who promises to shift policy in the direction of wind energy. Should Exxon be prohibited from using their money to argue for candidate B who thinks that oil is the way to go?

Our Supreme Court determined that the First Amendment applied to all interests. There was nothing radical about this at all. All one had to do was look at the First Amendment itself. Had the framers intended to restrict the speech of corporations or other organizations with common goals, they would have done so.

I also never said there were no restrictions either. I did say there were no exceptions based on the status of the entity/declarant. I do know something about this, Andrew. Certainly more than you. Further, the ACLU- where you serve on the Board of Directors- supported this decision of the Court for the same reasons I mentioned. Maybe you should find out why and then come back and tell me how much I don't know about the law and the Constitution.

Steve Harrison

Sam, what's the basis for your "mainly non-profits" clarification? Is that a legal observation, that this ruling applies (mainly) to non-profits, or are you saying that Liberals are more worried about non-profits than (for) profit corporations?

Andrew Brod

Actually I don't serve on the ACLU board. I used to serve on the board of the NC ACLU. State affiliates often differ from the national on key issues. And in any case, I don't necessarily agree with organizations I support on everything. So that "discovery" of Spag's is neither here nor there.

Whether one agrees with the recent decision or not, the one thing that's certain about it is its radicalism. Clearly, judicial activism is bad only when liberals do it.

Andrew Brod

Oh, and while I concede nothing in this vein, does "knowing more" than others about a topic actually end the debate? If so, then I'm glad Spag will stop commenting on economics, because I'm pretty sure I know more about it than he does.


That's fine Andrew, but next time it might not be a good idea to label those whom you disagree with as "wrong" so definitively and "know nothings" especially regarding their chosen field. I concede your expertise in economics and have never said that you didn't know what you were talking about. But like this topic, there is much disagreement in that area, particularly regarding macroeconomics and policy. YOU aren't the only one discussing economics nor do I automatically disagree with you on economic issues, nor have I ever said that you don't know what you are talking about. I'm not an expert, but I took enough economics courses in college and have studied it independently to know something about it.

Steve, a corporation is a corporation whether non-profit or not for purposes of free speech. The point about non-profits is that they are the ones who are actually more likely to take advantage of this ruling and make use of it. That Microsoft or Wal-Mart would actually get involved in political advertising is very unlikely.


Yeah, that freedom of speech thing is something to be afraid of!


"Yeah, that freedom of speech thing is something to be afraid of!"

That explains the prime reason for the push back from Dem/Lefty/"Progressive" elements and their local Usual Suspect chapter.

It's in character with Cherished Agenda goals, and has noticeably affected implementation of such these last 12 months.

Account Deleted

It seems to me that some individuals and corporations connected to NC Democratic leaders don't even bother to worry about campaign finance and ethics laws.


P.S., this was not an "activist decision" as there was nothing read into the Constitution that wasn't already plainly there. If the Court had created an exception to the Constitution or to the existing statute (which is what the liberal justices wanted to do) that would be activist because it would be legislating.

It's a nice spin designed to make the conservative justices look like hypocrites, but it is a deliberate obfuscation of what the term "judicial activism" really means.


I've heard all about judicial activism. It seems to be a term used whenever any change in previous law is made by a court decision, unless it's an opinion supported by conservatives and then the term somehow doesn't apply.

Money elects politicians, not "we the people." That problem will be even worse now.


"It seems to be a term used whenever any change in previous law is made by a court decision". Not quite. It actually refers to court decisions that rewrite statutes or add provisions to the Constitution. These are activist because they are the province of the legislature, not the Court. Reversing a prior Court decision is not activism unless it does one of those two things.

In this case, the Court said that a statute was unconstitutional. It did not rewrite the statute nor did the Court add anything to the Constitution that wasn't there before.


Corporations are people too? That was plainly in the constitution?

Steve Harrison

Sam, it was an "activist" decision, because the case itself was moot and shouldn't have even been accepted for the SCOTUS docket. Their decision to hear the case wasn't about determining and rectifying injury, it was about modifying election law. And the method used to modify the law established precedent for further erosions of stare decis. There's more than just Constitutional analysis at work here, and I'm sure you know that.

As far as profit vs non-profit in this equation, you have to look at the actual fund sources to see the issue. Non-profits who (like you say) are more likely to purchase attack ads still have basically the same fund sources to work with. But now for-profit corporations can use funds from their general treasury (business proceeds) to engage in political advertising. How they will go about it remains to be seen. Direct attack ads targeting a specific candidate may very well hurt their business, but ads supporting a specific candidate may be both effective and safe. We'll have to wait and see just what they decide to do, but speculating they won't tap into those funds goes against everything we know about corporate behavior in elections.


The case was not "moot", Steve. Even the minority justices agreed that the case could not be decided on the narrow grounds before the Court. The minority just didn't want to reach the Constitutional issue. Instead, they advocated for carving out an exception to the statute- i.e., rewriting the law.

I would love to get all special interests out of political campaigns, and I am greatly disturbed by the way corporations seem to own politicians in both parties. However, the remedy to that is through a Constitutional amendment. You can't simply ignore the Constitution because it has some undesirable consequences, nor should the Court write exceptions into existing statutes in order to render them Constitutional. That is the province of the legislature.

Steve Harrison

"That is the province of the legislature."

Indeed. And BCRA was the result of legislative efforts. Justice Stevens:

The legislativeand judicial proceedings relating to BCRA generated a substantial body of evidence suggesting that, as corporations grew more and more adept at crafting “issue ads” tohelp or harm a particular candidate, these nominally independent expenditures began to corrupt the political process in a very direct sense. The sponsors of these ads were routinely granted special access after the campaign was over; “candidates and officials knew who their friends were,” McConnell, 540 U. S., at 129. Many corporate independent expenditures, it seemed, had become essentially interchangeable with direct contributions in their capacity to generate quid pro quo arrangements. In an age in which money and television ads are the coin of the campaign realm, it is hardly surprising that corporations deployed these ads to curry favor with, and to gain influence over, public officials. The majority appears to think it decisive that the BCRArecord does not contain “direct examples of votes being exchanged for . . . expenditures.” Ante, at 45 (internalquotation marks omitted). It would have been quite remarkable if Congress had created a record detailing suchbehavior by its own Members. Proving that a specific votewas exchanged for a specific expenditure has always beennext to impossible: Elected officials have diverse motivations, and no one will acknowledge that he sold a vote. Yet, even if “[i]ngratiation and access . . . are not corruption” themselves, ibid., they are necessary prerequisites toit; they can create both the opportunity for, and the appearance of, quid pro quo arrangements. The influx of unlimited corporate money into the electoral realm also creates new opportunities for the mirror image of quid pro quo deals: threats, both explicit and implicit. Startingtoday, corporations with large war chests to deploy onelectioneering may find democratically elected bodies becoming much more attuned to their interests.

Sam, think about it. Getting BCRA passed was a huge challenge. It damned near got buried in Committee. And not because of Constitutional concerns or questions; it almost died because of political pragmatism. After tossing this aside, you expect Congress to summon the willpower to amend the Constitution to forward campaign finance reform?

All legal arguments aside, that is not a rational solution.


Steve, you are misunderstanding the role of the Court here. Of course the rule was written by the legislature. That doesn't mean it is Constitutional. It is the role of the Court to make that determination, not to take the legislation and change it to make it Constitutional. That is what Stevens and the others in the dissent advocated.

Are you actually arguing that we can effectively amend the Constitution with legislation? If that is the case, then the Constitution is meaningless.

Steve Harrison

No, I'm saying the same body who struggled with campaign finance reform (Congress) would have to initiate the Constitutional Amendment process you say is the only remedy for corporate ownership of our politicians. I know states would have to ratify said amendment, but they'll never get the chance.

You apparently want some of the same things I do, but you fail to see how the Majority's incorrect application of the 1st Amendment in this case actually threatens the Constitution instead of protecting it.


You are right, Steve that the process is improbable. However, if the Majority incorrectly applied the First Amendment, please explain how.


" The last time I checked, even foreigners visiting in the U.S. enjoy the rights under that Amendment."

Something particular about that Amendment that extends to foreigners or does that apply to all Amendments, including the Fourth?

Steve Harrison

It's pretty simple, Sam. Previous findings by the Court preserved the right of individuals to speak via donations to a PAC that would help them pool their resources and speak with a louder voice. If that PAC deviates from what the individual wanted to say, they can stop donating and speak elsewhere.

By allowing corporations to use their general treasuries for political purposes, the Court has set up a system where monies that were collected under different auspices (commerce, labor) can be directed towards political speech, without the express or even implied authorization of those who contributed those funds. The result is: Their (individual) free speech is smothered by the misuse of monies they and others spent for non-political purposes. That's not using a collective voice, it's being collectively used; a "subversion of intent", as it were, which is a much clearer violation of the 1st Amendment than Congress placing limits on corporate campaign spending.


Might not be so bad. Brawndo Corporation's influence worked out well.


Using your logic Steve, if I contribute money I earned to a campaign, I would first have to get permission from the person who paid me.

Andrew Brod

No, that's not Steve's logic. Try again.


"the Court has set up a system where monies that were collected under different auspices (commerce, labor) can be directed towards political speech, without the express or even implied authorization of those who contributed those funds. The result is: Their (individual) free speech is smothered by the misuse of monies they and others spent for non-political purposes."

No, I think I got it about right, Andrew.


Sam, the Fourth too, or no?


Do your own research, Roch, and make your own arguments.

Andrew Brod

Hey, Roch's not the one who claimed that a particular amendment applies "even [to] foreigners visiting in the U.S." It's a reasonable question whether you think it's just the First Amendment or all amendments. If it's all amendments, then what does the Spag Doctrine imply regarding extraordinary rendition, Gitmo, etc.? If it only applies to the First Amendment, then what is it that differentiates that amendment from the others?

Steve Harrison

"Using your logic Steve, if I contribute money I earned to a campaign, I would first have to get permission from the person who paid me."

Sam, you're comparing apples and apple...flavored...chewing gum? Nix that, my analogy machine is broken again.

I don't know how your business is set up, but you likely pay yourself a personal salary out of the larger (Spagnola Law Firm) business account. This larger account covers all of the firm's expenses, from paralegals to rent to investigators to filing fees, etc., etc.

How you spend your personal salary doesn't impact your employees (or associates, if you have them), and it has limited impact on your clients. I guess if you (personally) donated to a candidate that was running against a client, there might be an ethical pothole. But, what you do with the firm's account could impact employees, and (I believe) would also expose you to a wider range of legal complications.

That's not so much a "legal" argument as it is an effort to demonstrate the difference between personal funds and corporate funds. And it may not be a good demonstration either, but you're smart enough to iron out the wrinkles and apply it to yourself, if you're willing.


There is no "Spag Doctrine". I'm not sure where that false assertion came from. If anyone can cite a case that says foreigners in the United States have no First Amendment protections, please let me know. You may also want to let the universities know so they can tell their exchange students. Illegal immigrants might want to know that too in case they get sent to jail for expressing support for a candidate in the next election.

What the Fourth Amendment and Gitmo have to do with this case escapes me, but if someone thinks they are relevant to the discussion then by all means present your arguments.

Andrew Brod

Roch, I think Spag's answered you. He doesn't see it.


You're right. I don't. I've read the case several times, and there is no mention of Gitmo or the Fourth Amendment. I also am unaware of any case that says that foreigners in the U.S. have no First Amendment protections, but I will offer the opportunity for a third time to prove me wrong. Either that, or just shut up about things you obviously don't understand.

Andrew Brod

"Shut up"? So much for rational discourse. Tell us more, Spag.


Of course, if you want to discuss restrictions on foreign corporations- this case did nothing to change the provision of federal law (2 U.S.C. 441e) that bans foreign corporations from contributing to political campaigns. So like I said in my first comment- much ado about nothing.

Steve Harrison

That's apparently not as "airtight" as you think it is, Sam:

"The U.S. subsidiaries of foreign-owned companies have begun lobbying against Democratic proposals that would limit their spending on political campaigns.

The court decision didn't change current restrictions against foreign companies and foreign individuals funneling campaign money through U.S. subsidiaries. But companies are allowed to spend profits from U.S. subsidiaries on election campaigns, and some firms fear Democrats may try to add further restrictions.

"Talking about restricting foreign influence in elections may sound like good politics, but when you peel back the layers, it could have a wide spectrum of unintended consequences," said Nancy McLernon, who heads the Organization for International Investment, a lobbying group that represents U.S. subsidiaries of foreign corporations. "There is no reason to distinguish a Nestle from a Hershey's," especially because both have U.S. employees, she said.

Ms. McLernon declined to name the companies that are involved in the lobbying effort. About 160 major corporations are in the group, including the domestic subsidiaries of brands such as Belgium's Anheuser Busch InBev NV, Netherlands-based Royal Dutch Shell PLC and Sony Corp. of Japan. Representatives of those companies didn't return calls seeking comment.

You gotta love that Globalization.


"Do your own research, Roch, and make your own arguments." -- Sam

Okee dokie. my research shows it. You are adamant the the First Amendment applies to foreigners here. You "see no exceptions to its application" based on the entity asserting that right.

Yet, you argued the exact opposite for another amendment that also has no exception to its application based on the entity asserting its protections: The Fourth, which you argue is dependent on the entity asserting it.

So I've done my research and my argument is that you are a hypocrite.


Actually Roch, all you've demonstrated is that there is a reason you have to go to law school for three years because you obviously have little or no understanding of Constitutional law, standards of review, etc. Elon has a law school here in town, maybe you should apply there. There's a reason I have not engaged you on this discussion because there really is no way to do it without looking like a jerk, but the fact remains that I cannot and will not teach you principles of Constitutional law in a blog post that must be understood to intelligently have this discussion.

Also, nowhere in that link you provided is the Fourth Amendment even discussed. I can provide you a shitload of court cases that have exceptions to the Fourth Amendment when there is a compelling state interest. I cannot find any that state that a foreigner has no First Amendment protection in the United States. Further, that discussion actually relates to the Fifth Amendment due process rights, not the Fourth Amendment.

Once again your continuing efforts to discredit those who disagree with you politically makes you out to be an angry, naive fool.


Thanks for all them words, Sam. I think we both find them satisfying, you in that you can vent your anger with a personal attack and me in seeing that they do not refute your self-contradictions.


Okay Roch. I'm sure CNN will be calling on you the next time they need a legal analyst.

A simple "you were right Sam" would have sufficed, but I know that would be excruciatingly painful for you.

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