Dworkin on the "appalling" Citizens United decision

Ronald Dworkin has a great essay about the Citizens United decision in the New York Review of Books. 

Here's a taste.

On the most generous understanding the decision displays the five justices’ instinctive favoritism of corporate interests. But some commentators, including The New York Times, have suggested a darker interpretation. The five justices may have assumed that allowing corporations to spend freely against candidates would favor Republicans; perhaps they overruled long-established laws and precedents out of partisan zeal. If so, their decision would stand beside the Court’s 2000 decision in Bush v. Gore as an unprincipled political act with terrible consequences for the nation.

We should notice not just the bad consequences of the decision, however, but the poor quality of the arguments Justice Kennedy offered to defend it. The conservative justices savaged canons of judicial restraint they themselves have long praised. Chief Justice Roberts takes every opportunity to repeat what he said, under oath, in his Senate nomination hearings: that the Supreme Court should avoid declaring any statute unconstitutional unless it cannot decide the case before it in any other way. Now consider how shamelessly he and the other Justices who voted with the majority ignored that constraint in their haste to declare the Act unconstitutional in time for the coming mid-term elections.

Read the rest here.

Comments

[Cass]

Obviously, some radical action was called for in order to prevent the rabble from interfering any further with the proper running of this country.

[Autumnal Harvest]

I'm not finding Dworkin's essay that "great." You'd think the essay would spend more time discussing the actual reasons Dworkin thinks the law is constitutional, but oddly, he only devotes a few short sentences to that, stating

The nerve of [Kennedy's] argument—that corporations must be treated like real people under the First Amendment—is in my view preposterous. Corporations are legal fictions. They have no opinions of their own to contribute and no rights to participate with equal voice or vote in politics.

Dworkin's argument is ridiculous. Corporations are indeed legal fictions, but the opinions they express are opinions of people in the corporation, and I'm not aware of any rational argument as to why people lose their constitutional rights simply because they choose to organize through a corporation. Until now I was unaware that so many on the left championed the view that since the ACLU is a legal fiction, the government is free to censor it, search its offices without warrant, and seize its assets at will. And if Dworkin sees the nerve of Kennedy's argument as the view that corporations have First Amendment rights, then Dworkin must find the dissent even more "preposterous," since it agreed with that "nerve," yet not the implications of it.

[parse]

Against the opposition of their four colleagues, five right-wing Supreme Court justices have now guaranteed that big corporations can spend unlimited funds on political advertising in any political election.

Interesting lede. Of course, the Supreme Court's ruling was about corporations not big corporations, and Dworkin later admits that Citizens United was a small nonprofit corporation almost entirely financed by individual contributions I'd like to ask Dworkin if he believes that NYREV, Inc the corporation that published his essay, has First Amendment rights the government is bound to respect.

Dworkin thinks the Constitutional issue here is unnecessary, but it's not unimportant. Dworkin denies that corporations enjoy First Amendment rights, but there are problems with that position he doesn't address. If only individuals have First Amendment protection, couldn't the government censor any publisher, broadcaster, or newspaper that was incorporated? Is the government required to allow Dworkin to have his say, but permitted to keep NYREV from posting it on the web on the grounds that the latter is a corporation?

[Lindsay Beyerstein]

If corporations are legal fictions, then they have the rights that the authors of that fiction ascribe to them. Contrast that with the assertion that all men are endowed by their creator with certain inalienable rights.

A corporation has the status of a person in some contexts but not others. We know that corporations don't have all the legal rights of persons, otherwise they'd be able to vote and get married and so on. Rights are assigned to a corporation a la carte. Corporate rights are not the inalienable package deal that human beings are supposed to get.

Prior to Citizens United, campaign finance law and the FEC said that corporations don't have the right to buy unlimited campaign advertising from their general treasury. The question is whether anything in the Constitution prohibits Congress or regulators empowered by law from saying that corporations have the right to buy this kind of ad and pay for it with that kind of money.

The Constitution doesn't define a corporation, or spell out what rights a corporation has. Limited liability corporations weren't even envisioned when the constitution was written. That's why it's the height of hypocrisy for judges like Roberts, who claim to be strict passive interpreters of the Constitution, to extrapolate so widely about what the rights of a corporation must be under the First Amendment.

[Autumnal Harvest]

Lindsay, I'm not sure how your comment addresses what I or parse said. As I said above, the speech that the government is attempting to stop is the speech of individuals, channeled through a corporation. It's irrelevant that the Constitution doesn't define a corporation, because individuals don't lose their First Amendment rights by the method by which they organize. You are of course correct that corporations are not human beings with inalienable rights, but that simply argues against a straw man that appears nowhere in the majority opinion. The question isn't "are corporations really human beings?", it's "why do human beings lose their rights once they attempt to exercise them through a corporation?" If individual human beings organize in a corporation, their ability to marry is not hampered by the refusal of the government to allow the corporation to marry. If individal human beings attempt to express their opinion by pooling their money to make and show a film, each individual's ability to express their opinion is hampered by the refusal of the government to allow them to do this.

Why do you believe that 20 people who meet in a group, and choose to pool their money to organize a protest march, have constitutional rights if they put their money in a piggy bank, but not if they organize as a corporation? Do you really believe that corporations "have [only] the rights that the authors of that fiction ascribe to them"? If so, do have believe the government has the right to search the offices of the ACLU (a corporation) without warrants, or, as parse asks prevent NYREV from posting Dworkin's essay? These are the direct and immediate implications of your statements. And do you believe that the justices in dissent were also "extrapolat[ing] so widely" when they agreed that with the majority that a corporation has First Amendment right?

[Lindsay Beyerstein]

The question is whether Microsoft can buy $10 million worth of attack ads to sway an election. Even if Microsoft can't, the shareholders of Microsoft haven't lost their right to free speech. They can still sign a manifesto as individuals. More importantly, they can all give to the Microsoft PAC, which can buy ads. Nobody has lost any rights. The question is whether we want to bestow rights on the corporation as such.

Just because you can do something individually doesn't mean that you automatically have the right to use a particular kind of corporate structure to do that thing. For example, 501(c)3 non-profits aren't allowed to endorse political candidates. It's a sweet deal they get because society decided that it was a good idea to indirectly subsidize charities and other beneficent organizations, but not partisan political groups. The rights of 501(c)3 directors, staffers, and donors aren't violated because the 501(c)3 can't endorse candidates. They can still express their opinions as private citizens separately or together. They can also form a separate 501(c)4 which can participate more directly in politicking.

Limited liability corporations are socially subsidized, too. If a company goes bankrupt, creditors can't come after individual shareholders. So, when a company goes under, creditors eat that debt and investors walk away. Society decided that this was a price worth paying because limited liability corporations encourage people to invest businesses. That's a huge privilege, one that's not enjoyed by ordinary unincorporated individuals. In exchange for this extraordinary limitation on liability, society is entitled to put restrictions on how a company may operate.

[parse]

The question is whether Microsoft can buy $10 million worth of attack ads to sway an election.

Lindsay, that wasn't the question. The question was whether a small, not-for-profit corporation could produce a documentary critical of a candidate and then allow people to pay to view it via video on demand. Doesn't in trouble you at all that the government claims they could say "No, you can't do that, just because you are a corporation."

In arguments before the court, the government explained it would include a company that wanted to publish a book that would be on sale during an election period. Your reference to the ability for Microsoft to spend millions on campaign advertising, like Dworkin's claim that the case is about the rights of "big corporations" narrows the focus of the decision in ways the government explicitly argued it should ot be limited.

In two posts, you've declined to answer some direct questions which I consider pretty important in thinking about this issue. Does the ACLU forfeit protection from unreasonable search and seizure because it is a corporation? Can the government censor the New York Review of Books because it's published by a corporation?

[Lindsay Beyerstein]

I'm actually sympathetic to the idea that a non-profit like CU should have been allowed to distribute its Hillary movie. However, the judges in the majority deliberately, and on their own initiative, drastically widened the scope of the case to address the much larger question of whether companies could have the right to buy election ads.

The rights of corporations are spelled out in the law. They don't have any natural rights that you can extrapolate from the rights of people who own them, or work for them, or manage them.

Just because people who own a share in an entity have rights, it doesn't follow that that entity must be allowed to exercise free speech on its own behalf as if it were a person.

They are arbitrary legal fictions. They are what the law says they are. I don't know what the law says about searches and seizures and corporations.

[Peter K.]

parse:

"In two posts, you've declined to answer some direct questions which I consider pretty important in thinking about this issue. Does the ACLU forfeit protection from unreasonable search and seizure because it is a corporation? Can the government censor the New York Review of Books because it's published by a corporation?"

And you have answered none of the arguements against your position. It seems like you have no interest in an honest debate. This ruling by an activist Supreme Court will have dire consequenses, which we will soon see.

"Doesn't in trouble you at all that the government claims they could say "No, you can't do that, just because you are a corporation."

Nope. Individuals in that corporation can still go and do that. Their rights haven't been abrogated.

[parse]

Peter K, there's a difference in answering arguments and answering questions. I'm not assuming that Lindsay thinks NYREV has a first amendment right to publish political commentary and asking her to defend that position. I don't know whether she believes they do are not, and it seems to me the best way to find out is to ask her.

I am concerned about the effect of the ruling; I don't think special interests derive undue influence in public affairs through their financial participation in elections. But on the issue of the Constitution claim being made in the argument, I think it's better if the government is required to recognize the First Amendment rights of corporations and use alternative methods to deal with the corrupting effect of campaign donations and advertising.

[Autumnal Harvest]

Lindsay, I don't want to be a broken record, but I keep asking you about the implications of your position, and as far as I can tell, you've ignored those implications. Again, do you really believe that since the ACLU is a corporation, it has no First Amendment rights? Given what you've stated in your posts above, do you have any basis for a constitutional objection to a law that prevents the ACLU from sending out letters criticizing Obama's civil rights record? To replace some words in your comments, would you accept the following as a valid legal argument? :

The question is whether the ACLU corporation can spend millions of dollars to criticize Obama's civil rights record. Even if the ACLU corporation can't, the shareholders and donors of the ACLU haven't lost their right to free speech. They can still criticize Obama as individuals. . . Nobody has lost any rights.

Is the validity of your argument affected when I change the name of the corporation? You say that you're "actually sympathetic" to CU, but you don't say why. Of course, I can think of many reasons to be more sympathetic to CU than to Microsoft, but if your stance is that corporations have no First Amendment rights, then I can't think of any legal arguments that would distinguish those two corporations.

[JohnL]

Parse, the point is she did answer your question and you ignored it.

It doesn't trouble me that a group might not be able to do something because they're a corporation because they didn't have to incorporate. They incorporated knowing that doing so might lead to restrictions because it gave them benefits. If they didn't want those restrictions, they didn't have to incorporate. As Lindsay says, the government has allowed this new entity to exist and, as with any contract, has the right to put in restrictions on what that entity can do. Do you believe that a corporation should get the huge benefit of limited liability without any restrictions? Why?

The Supreme Court has said before this that a corporation has some of the rights of people, but that does not mean they have all the rights. In terms of magazines and newspapers, there's this little thing called freedom of the press. Which brings up another question: if the writers of the Constitution thought that any group of people automatically would have the rights of an individual, why did they put this in? It would come automatically from the freedom of speech given to individuals.

[parse]

In terms of magazines and newspapers, there's this little thing called freedom of the press.

I'm guessing from this, JohnL, that you don't know that freedom of the press is part of the First Amendment, so that if corporations don't have First Amendment rights, that means that magazines and newspapers that are published by corporations (you know, The New York Times, The Washington Post, Harper's, Newsweek et al) are not entitled to freedom of the press.

[JohnL]

AH, I have no problem stating that no corporation has all the rights of a person. Since the government allows the corporation to exist, it can also decide what rights to give it. If I'm signing a contract with you, I can try to put in any restriction I want (with certain exceptions) and then you decide if you will agree to them, Why can't the government do the same thing?

Up until this decision the government (including the Supreme Court) has decided that a corporation has some but not all the rights of a person (and this decision still doesn't give them all the rights--the Scotus blog wonders whether some corporations might now try to vote). I have no problem with that.

[Alon Levy]

Parse, freedom of the press and freedom of speech are two separate clauses of the First Amendment, and freedom of political contribution is not a clause of anything.

Since freedom of speech does not mean unlimited contributions to political campaigns, there may be individual campaign contribution laws: foreigners are not allowed to contribute at all, even though they have full freedom of speech; Americans are limited to $2,400 per election. The restrictions about soft money, 527s, and campaign ads are a way to make this rule more enforceable. The US government has decided that I'm not allowed to give money to political campaigns, and that US citizens are limited to $2,400, so to enforce this law it's logical that entities that are allowed to accept unlimited amounts of money should not be able to engage in political contributions or fund speech that's deemed to be tantamount to campaigning. The line between ordinary political speech and campaigning can be fine, which is why there's case law about it, saying what is and is not legal.

All this is compatible with freedom of speech, and countries with good freedom of speech have enacted far more onerous restrictions than the US. Conversely, I'm not aware of a country with freedom of speech where corporations can make unlimited political contributions.

[Autumnal Harvest]

JohnL, I also have no problem stating that no corporation has exactly the same rights of a person. I'm not aware that that's been at issue anywhere in this discussions. The claim I'm hearing is

(1) Because a corporation is not a person, it has no constitutional rights.

That's a fairly extraordinary and unprecedented claim (and one found nowhere in the dissent) and while people here seem to be willing to go to great lengths to explain why (1) is correct, I'm a little baffled why no none of the supporters of (1) seem willing to state whether they agree with statements that are immediately and trivially deducible from (1). For example:

(2) The ACLU is a corporation
(3) The protection against unreasonable search and seizure is a constitutional right
(1) + (2) + (3) = (4) The ACLU has no protection against unreasonable search and seizure

Or

(2') Fox News is a corporation
(3') Freedom of the press is a constitutional right
(1) + (2') + (3') = (4') Fox News has no freedom of press rights.

How is it possible to argue for (1), but not for (4) and (4')?

If I'm signing a contract with you, I can try to put in any restriction I want (with certain exceptions) and then you decide if you will agree to them, Why can't the government do the same thing?

Interesting analogy. And for corporations formed before the passage of McCain-Feingold, I suppose the relevant analogy is the right of one party to unilaterally renegotiate contracts without the consent of the other party? However, even assuming that every corporation in America was formed last year, the short answer would be that we don't generally allow the government to use its negotiating power to convince people to negotiate away their constitutional rights. For example, a law that individuals can get tax refunds if they refrain from criticizing the government is describable as a consensual contract between the government and individual citizens, but is certainly unconstitutional.

[parse]

Parse, freedom of the press and freedom of speech are two separate clauses of the First Amendment, and freedom of political contribution is not a clause of anything.

AH, Lindsay and I all specifically referenced the First Amendment, rather than "freedom of speech" in the discussion, so I'm not sure how your first point is relevant. And as the ruling, as far as I can determine, did not award corporations an unlimited "freedom of political contribution," I don't see how the latter point is relevant, either.

it's logical that entities that are allowed to accept unlimited amounts of money should not be able to engage in political contributions or fund speech that's deemed to be tantamount to campaigning.

It may be logical, but given that it's the government that claims the right to determine which speech is "tantamount to campaigning," the issue of government regulation of political speech is the logical result of ceding such power to the government. Given the enormous advantage enjoyed by incumbents in political campaigns, I find it hard to understand why you are (justifiably) concerned about allowing greater influence of corporate money in elections but apparently unconcerned about letting the government decide what speech to allow and what speech to forbid during campaign periods.

Conversely, I'm not aware of a country with freedom of speech where corporations can make unlimited political contributions.

Again, I'm confused about the relevance here. Since, as you point out, individuals are not allowed to make unlimited political contributions, what makes you believe that the Supreme Court decision, in recognizing First Amendment protection of corporations, will allow corporations to make unlimited political contributions?

Finally, can any of you who agree with Dworkin's analysis of this "appalling" decision address the the implications that AH and I see in Dworkin's position. Is it that you think those conclusions don't follow from the premise that corporations are not entitled to First Amendment protection or other Constitutional rights? Or do you agree that AH's analysis of the implications are correct but you aren't concerned about ceding the ACLU's protection from unreasonable search and seizure or Fox News' right to freedom of the press?

[Peter K.]

Autumn Harvest:

"(1) Because a corporation is not a person, it has no constitutional rights.

That's a fairly extraordinary and unprecedented claim"

Are corporations in the US Constitution? Why all this concern for corporations' rights? Why are you such a suck-up/brownnose/synchophant for these extremely powerful multinational institutions? Why no concern for the corruption that's coming now that the floodgates have been open by an activist US Supreme Court, overturning a 100 years of precedent?

Money doesn't talk, it swears. To you pro-corporate types, might makes right, huh?

Individuals' rights have not been curtailed just b/c the corporation where their mutual funds are invested has limits on its "free speech."

[Manju]

"I'm actually sympathetic to the idea that a non-profit like CU should have been allowed to distribute its Hillary movie. However, the judges in the majority deliberately, and on their own initiative, drastically widened the scope of the case to address the much larger question of whether companies could have the right to buy election ads."

Not just the majority but also the minority. Its very telling that the 4 liberal judges didn't concur narrowly--ie vindicate CU while simutaneosly dissenting on the alledged expansive nature of the ruling. Instead they chose to use the power of the state to suppress CU, an orginzation to which even you are sympathetic.

This indicates a narrow ruling was impossible and Robert's was therefore being consistent with avoiding "declaring any statute unconstitutional unless it cannot decide the case before it in any other way."

In conmtrast to the 4 liberals, Justice Thomas joined the opinion but dissented on the disclosure issue (he thinks requiring disclosure is also unconstitutional).

[Manju]

"Parse, freedom of the press and freedom of speech are two separate clauses of the First Amendment, and freedom of political contribution is not a clause of anything."

The justices upheld restrictions on political contributions. What they said is an individual's corporate affiliation is not enough to deny them free speech. After all, the NYTimes is a corporation. If they were prevented from editorializing 30 days b/f an election, their 1st amendment rights would be violated. Ergo, CU has the same rights.

[JohnL]

AH and parse, you are acting troll-like. I have twice said (and Lindsay has said) that a corporation does not automatically get all the rights of a person. Here, I'll say it so clearly you might actually acknowledge it, I do not think the ACLU automatically has all the rights of a person under the constitution.

The government, if it wishes, can give them some of those rights and the Supreme Court might (and has) decide that some rights are automatic (such as the right to make contracts or own property). The Supreme Court might also (and has) decide that some rights are not automatic. In fact, one of the points of outrage is that previous Supreme Court rulings have said that a corporation does not have all the first amendment rights of a person and this decision overturns those rulings. What exactly has changed in the last 10 years to change the cout's mind (do you think corporations are opressed)?

My guess is that a corporation formed as a news organization would be more likely to get some rights automatically since there is a specific clause in the constitution talking about free press. I would also guess that the Supreme Court would be more likely to judge that a group formed for a political purpose (the ACLU or NRA for example) would have more political rights than one formed for other reasons (if I give money to or work for the NRA it's pretty obvious that I probably agree with their views on the Second amendment, but if I buy gas or work at Exxon that doesn't mean I agree with them when it comes to cap and trade).

As a history note, the idea that a corporation, or artificial person, should have the same rights as a natural person was thought ridiculous until about 1870 (in fact when the Supreme Court ruled that the corporation of Dartmouth College could not be altered by the state of NH because it was a contract there was a huge outcry). The idea of corporate personhood was 'established' by a court reporter as he wrote up a case (Santa Clara vs. Southern Pacific--the idea did not appear in the case itself). Its basis was the 14th amendment which was specifically written to give freed slaves rights (at about the same time, the court decided that it didn't really apply to freed slaves). It is one of the largest cases of judicial activism in our history.

[parse]

JohnL, I understand your position that corporations do not automatically get the same rights as persons. I'm asking why you are so sanguine about the implications of that position. According to you, the ACLU may or may not be protected from unreasonable search and seizure depending on whether the government decides to grant them that right. They have no inherent right to be secure in their papers or effects. If the Congress votes to require any incorporated entity, including not-for-profit organizations, to share all their records with the government, there's no Constitutional prohibition to keep them from doing so.

I think your notion that allowing some protections for the press and explicitly political organizations would be sufficient to safeguard liberty is naive. What about a corporation like Google, whose relationship with consumers is like that you attribute to Exxon in your example. Are you comfortable with a government order that Google share all the information it has gathered from its users?

[JohnL]

Well, first the Supreme Court has said that corporations have the same property rights as individuals (in fact this as well as the right to enter into contracts was one of the first rights recognized by the Supreme Court--way back in 1810 or so), so I think the whole search and seizure thing is a red herring--this is one of the rights the court recognizes that a corporation has. This

You're asking all these questions but you're not really answering any. The big change here is that now corporations can spend unlimited amounts of money from their general funds and are now more closely have the rights of a person. Are you ok with Exxon spending $50 million (or how about $10 billion--even if the shareholders aren't asked?) to advocate against cap and trade (and pass the costs along to us)? It also could mean that corporations can lie in ads (to the same extent that an individual can)--are you ok with this? Do you think a corporation should be able to vote? And as you're answering these questions, remember that any individual in the corporation can spend as much as they want and the corporation could already form a corporate PAC to do this type of stuff.

[Autumnal Harvest]

AH and parse, you are acting troll-like. I have twice said (and Lindsay has said) that a corporation does not automatically get all the rights of a person. Here, I'll say it so clearly you might actually acknowledge it, I do not think the ACLU automatically has all the rights of a person under the constitution.

Well, calling me a troll is certainly a very convincing logical argument. However, your claim about what you've stated "clearly" is disingenuous. I'm not asking whether corporations automatically have all the rights of a person under the constitution. I've not made that claim, nor did the majority opinion of the court. I'm pointing out that the argument that Dworkin (and Lindsay) make is that a corporation has zero rights under the constitution-other than the rights the government choosees to gives it-and that the immediate logical implication of that is that the ACLU has no rights under the constitution. If you honestly think that saying "the ACLU [doesn't] automatically have all the rights of a person under the constitution" is a clear answer to the question of whether the ACLU has no rights under the constitution, then this conversation is pointless. You correctly state that Supreme Court decisions take a position somewhere between "all rights" and "no rights," so I'm not sure why you seem unwilling or unable to recognize that here.

It's certainly possible to criticize this Supreme Court decision. However, criticizing it by saying "Corporations are not persons, and thus no constitutional protections apply" is so overbroad that it clearly leads to immediate absurdities.

Why are you such a suck-up/brownnose/synchophant for these extremely powerful multinational institutions?

You've caught me Peter, I am in fact a suck-up sychophant for powerful corporations. Now, can someone explain to this suck-up sycophnant whether the following logical deduction is valid or not?

(1) Because a corporation is not a person, it has no constitutional rights.
(2) The ACLU is a corporation
(3) The protection against unreasonable search and seizure is a constitutional right
(1) + (2) + (3) = (4) The ACLU has no protection against unreasonable search and seizure. (Note for clarity: "no" does not mean "different from that of a person" or "some")

I had thought this was a fairly trivial and straightforward deduction, but perhaps the rules of logic I learned from my corporate masters are overly syncophantic and you have some alternate rules of logic I'm unfamiliar with.

[parse]

JohnL, in case it's not clear from my previous posts, I'm not OK with Exxon spending $10 billion to advocate against cap and trade and passing the costs along to us, I'm not OK with allowing corporations to lie in advertising, and I don't think corporations should have the right to vote.