“Supreme Court opinion notwithstanding, corporations are not defined as people under the Constitution, and free speech can hardly be called free when only the rich are heard.”
— Warren Rudman, late former U.S. Senator (R)
from New Hampshire (1980-1993)
After Illinois became the 14th state to pass a resolution calling on Congress to amend the Constitution to overturn the Citizens United decision, David Applegate wrote a post in the Hartland Institute’s policy and commentary blog entitled “10 Reasons Why Opponents of Citizens United are Wrong.” The following is a deconstruction of his “reasons,” but first it is worth noting that the mission statement of the Hartland Institute, based, ironically, in the coastal state of VA, states in part: “Hartland is founded on the principles of the Word of God, and follows the blueprint given in the Bible for Christian education and a solid, healthful Christian lifestyle. The education we offer is a balanced blend of academics and training in practical skills.“
Got it: Mr. Applegate is writing for an institution with Christian values. Interesting, then, that his list of “reasons” begins by insulting the people of IL as “low-information voters.” Ad hominem much?
Before he begins his list, he makes his first false assertion. Quoting Public Citizen’s Aquene Freechild stating that “people of all political stripes are deeply concerned about corporations having too much influence over our democratic process,” Applegate calls “poppycock,” which is as quaintly antuquated as it is wrong. Freechild is correct, no matter what the reactionary “Christians” at the Hartland Institute claim. Free Speech for People released a report this week listing 111 Republican officials who have “called for an amendment to overturn Citizens United.”
Now, addressing Applegate’s 10 “reasons” why large majorities of Americans are “wrong:”
1. Illinois is in effect a one-party state dominated by low-information voters and the City of Chicago. As heroic Chicago Tribune columnist John Kass has characterized it for many years, a “combine” of entrenched political interests runs the state of Illinois for its own benefit, not that of the state’s citizens. Like its aberrant gun control laws — the strictest and yet least effective in the nation — what Illinois does or favors in the realm of restricting the First Amendment should serve as a warning bell, not a model, for the rest of the nation.
The only 1st Amendment rights that people want restricted are those that the Supreme Court granted to pieces of paper, i.e., corporations, in 1976. Applegate is taking the side of corporations and plutocrats. To quote Carl Gibson: “If we’re going to fight a binary struggle, it should be populist vs. corporatist. That’s the only real division in this country right now. Are you on the people’s side, or on big money’s side?” Applegate’s side is crystal clear.
2. The biggest threat to entrenched power anywhere is the power of independent spending. As every politician and newspaper publisher knows, getting your message out requires money. Incumbent politicians typically favor limiting outside spending precisely because it can knock them out of positions of power. That’s reason enough to favor more political speech and spending, not to restrict it.
Applegate has it wrong; the biggest threat to populist politicians is corporate spending. Corporate incumbents towing the corporate line are safe from corporate “speech.” Yes, electioneering communications costs money, but that does not mean that money is speech as the SCOTUS deemed the case in 1976. Alternative strategies are possible such as compelling the networks to offer candidates equal, free access to public airwaves as a public service by the companies that lease the frequencies in use. The idea of reversing Buckley v Valeo is not to get all money of out politics, but to allow Congress to make elections fair and to empower average Americans by limiting the amount any one person can contribute to candidates. More spending is disenfranchising Americans of average means, precisely what anti-democrats like Applegate intend.
3. “Nude dancing” not withstanding, political speech is at the core of the First Amendment. The current administration in Washington may disparage those who “cling to their guns and religion,” but if the First Amendment means anything it means that the government may not silence, inhibit, or even “chill” political speech. As the Supreme Court majority rightly recognized in Citizens United v. Federal Election Commission, curbing spending means curbing speech.
Nude dancing? No one wants to chill political speech that comes from candidates. Curbing corporate spending means curbing deceitful and misleading corporate propaganda. Elections should be for the people, i.e., politicians and voters. Citizens United allowed corporations to decide who will receive their largess. Citizens United, to use Lawrence Lessig’s idea, made certain that elections are contests among candidates that a minority (corporate and other plutocrats) have already pre-approved by funding those campaigns.
4. It is no more defensible (nor constitutional) to limit political spending by corporations than it is for the government to restrict the page count of a newspaper or the word count of a blog. (Twitter, being private, can do whatever it wants, but a 140-character “tweet” does not exactly lend itself to profound political discourse.) A corporation is simply a legal form of organization that enables the proprietors to limit their liability to trade creditors to the assets of the corporation if the entity should fail
A corporation is a piece of paper. No where in the Constitution are they mentioned, and no where in the Constitution are rights granted to associations of any sort. Applegate is correct, based upon the corrupt case law that corrupt judges have handed down; but he is ethically flawed and historically inaccurate. Newspaper reporters are protected by the 1st Amendment; corporate spending is not, at least not until the corrupt Citizens United case. Also, Applegate acknowledges that corporations are “legal forms of organization,” meaning that they are collectivist instruments of state power. An anti-government ideologue advocating “statism” is like a rabbi advocating pork.
5. The “corporation” at issue in Citizens United was not General Motors, RJR Reynolds, or even Koch Industries. Instead, much like the “Public Citizen” on behalf of which Ms. Freechild writes — which bills itself as a “national, nonprofit consumer advocacy organization founded in 1971 to represent consumer interests in Congress, the executive branch and the courts” — Citizens United was a not-for-profit entity that in 2008 produced a political documentary about then-United States Senator and presidential candidate Hillary Clinton.
See “What is Citizens United?” Applegate would have been more honest to call “Hillary, the movie” a political hit-piece.
6. Citizens United planned to release its documentary as a pay-per-view video-on-demand during the 2008 primary campaign, and incorporated as a not-for-profit in part to limit its members’ potential financial liability if the movie should flop. Citizens United was wise to do so, for the federal government sought to silence the film entirely for political reasons, outrageously arguing orally before the U.S. Supreme Court that the Federal Election Commission could even ban the sale of a book during election season if the book said “vote for (or against) candidate X.”
The book argument was a distraction and distortion of the law offered during the first round of arguments by then Deputy Solicitor General Malcolm Stewart. When the case was re-argued after Solicitor General Elana Kagan was appointed, the state had changed its answer. Justice Ginsburg did S.G. Kagan the favor of allowing her to undo some of the damage from Stewart’s argument in March. “May I ask you one question that was highlighted in the prior argument, and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies?” Ginsburg said. “Last time, the answer was yes, Congress could, but it didn’t. Is that still the government’s answer?”
“The government’s answer has changed, Justice Ginsburg,” Kagan replied, and the well-informed audience in the courtroom laughed. “We took the Court’s own reaction to some of those other hypotheticals very seriously. We went back, we considered the matter carefully.” Kagan said that Congress could not ban a book, but the damage had been done. Applegate’s citing of this answer by Stewart is evidence of that damage.
Ads for the film were not banned “for political reasons.” The ads violated the Bipartisan Campaign Finance Reform Act of 2002.
7. Citizens United’s fallout rains on the just and the unjust alike. It is no more just nor moral to ban “corporations” or not-for-profits from spending on political campaigns than it would be to ban Hollywood from producing the recently-rumored (and presumably favorable) movie about the young Hillary Clinton, Rob Reiner from having produced his 1995 love letter to Bill Clinton, “The American President,” or Steven Spielberg from having released 2012’s “Lincoln,” a clear (and favorable) allegory for President Barack Obama. Neither Congress nor the Supreme Court nor the states nor the Constitution should be able to ban speech — or spending on speech — because they don’t favor the political message being espoused.
One has to wonder where Applegate learned his morals from. There certainly is a moral difference between what Hollywood produces for entertainment purposes and shows in theaters and what a political corporation of any ideological bent produces as propaganda to sway voters in elections. “Lincoln” is an “allegory for President Barack Obama?” Maybe Applegate forgets but there really was an American president called “Lincoln,” once upon a time. Strange, but there is no evidence that Obama is pushing hard, or at all, for a constitutional amendment. Citizens United fallout is a purposeful shove in American elections toward the will of the for-profit corporations, just as the Roberts 5 intended and the right-wing media outlets pushing their deceitful propaganda. Limits on political spending are not based on content but on volume, a point Applegate and his allies studiously ignore at every turn.
8. “Taxation without representation” was one of the early grievances that led to the American Revolution and one of the first signs of tyranny anywhere. As long as government chooses to tax corporate entities separately from their owners, employees, and customers, then corporations have a right to speak — and to speak out — particularly for political purposes and especially regarding taxation.
Corporations have rights because corporate oriented justices gave them rights. Applegate has no constitutional justification for that assertion. This argument actually undermines the case for Citizens United, an un-taxed, not-for-profit corporation. If they do not pay taxes, why should they, or any other un-taxed artificial person, be allowed to speak out during campaigns for office? And this also assumes that the owners, employees, shareholders and beneficiaries have no individual voices or votes of their own. The owners and shareholders can still speak and vote as they see fit. The corporation they own, their collective, should not be allowed an additional voice or vote on top of the ones the owners already have.
9. Like gun control, national health insurance, and the recently-revealed politically-motivated investigations by the IRS, a proposed amendment to ban or to limit political spending by corporations is ultimately about controlling people, their lives, and their ideas and not about providing essential government services, which are the only legitimate objects of government spending.
The “recently-revealed politically-motivated investigations by the IRS” were not politically-motivated. These audits of 501 (c) 4 corporations were initiated by the manager of the office in Cincinnati, and he describes himself as a “conservative Republican.” Applegate has his facts wrong, and describes the movement to amend the Constitution in precisely upside-down terminology. An amendment to abolish corporate rights is about liberating the American people from corporate influence in elections and domination of the law-making in Washington, DC and in state capitols. Institutions are creations of the people and the people must have final authority over their utility, whether the institution is public or private.
10. In a forest of bad ideas that seem to take root in Illinois, this is among the all-time worst. Perhaps the Illinois legislature should turn its attention to more pressing matters instead, like reining in the uncontrolled legacy pension costs that are rapidly bankrupting the state.
Applegate’s political bias is exposed here. Attacking the pensions of workers, who were promised them, conveys his pro-corporate, anti-worker political values. Why not call for funding those pensions? As the Citizens United decision shoves the United States further and further toward a corporate, fascistic state, little is more pressing than efforts to reverse this direction.
Why would Applegate have such a strong desire to defend corporate speech? He appears to follow the plutocrat’s golden rule: those with the most gold, rule. This, too, makes perfect sense. His mini-bio, shown at the end of his hit piece, reads in part:
Mr. Applegate is an honors graduate of Yale College and received his law degree from The University of Chicago, where he chaired the Hinton Moot Court Committee and won the Lewis F. Powell Award for Excellence in Advocacy as a member of the school’s award-winning national moot court team.
That makes perfect sense. Lewis F. Powell was the author of “Attack on the American Free Enterprise System” submitted to the U.S. Chamber of Commerce two months before then President Nixon nominated him to the Supreme Court. Judge Powell was largely responsible for the advancement of corporate influence in the United States. As the U.S. drifts, thanks to the likes of Lewis Powell, Anthony Kennedy and John Roberts, toward a fascist state, corporate propagandists like David Applegate will do what they can to deceitfully undermine the movement building to reverse this drift. Be certain of one prediction: the corporate propaganda in support of plutocracy has only just begun its attack on this movement.