Tuesday, February 9, 2010

Concerning Corporations Having the Rights of Persons and a Response to Libertarian Arguments

There are many folks, especially corporate oriented conservatives and those identifying themselves as libertarians, but also a few liberal free speech ideologues like the ACLU, trying to spin the negative reactions to the recent Supreme Court decision which gave additional speech rights to corporations. They spin the decision in narrow terms associated only with the additional rights corporations acquired from the decision, and to what they see as a right to unlimited speech by every entity, no matter how powerful, and no matter how much those rights diminish the rights of the majority of individual citizens. They do this while ignoring the historical context and views of the Founding Fathers, as well as those of previous Supreme Courts.

Before attempting to address the libertarian arguments, which boil down to free speech at any cost, and the logical consequence that people should be free to form corporations which can then drown out and monopolize speech at the expense of individual speech, here is but a small part of the context leading up to the McCain-Feingold law, presented by Senator Feingold himself:

Court decision opens floodgates for corporate money in campaigns
By SEN. RUSS FEINGOLD   Sunday, Jan. 31, 2010

In its ruling in the case of Citizens United v. FEC, the Supreme Court has undone protections against corporate power that stood for more than a century. This decision is a terrible mistake, which gives corporate money a breathtaking new role in federal campaigns.

To see corporations gaining this much power may feel like a new era in American politics, but in fact it’s an old one. The Supreme Court has taken us back to the beginning of the 20th century, when Teddy Roosevelt battled the trusts, including the railroads, steel companies and oil companies.

Wisconsin’s “Fighting Bob” La Follette refused to be intimidated by the trusts. In 1906, he urged the Senate to pass legislation reining in the power of the railroad monopolies, saying “At no time in the history of any nation has it been so difficult to withstand these forces as it is right here in America today. Their power is acknowledged in every community and manifest in every lawmaking body.”

A year after La Follette spoke those words, Congress passed the Tillman Act to keep corporate money from overwhelming our democratic system. Over the next 100 years, further reforms were enacted to curb corporate influence over elections and respond to scandals such as Watergate or the auctioning of the Lincoln Bedroom to the highest bidder—and the Supreme Court consistently upheld them.

The Supreme Court’s decision returns us to a legal framework that fostered a golden era of corporate influence. While the core of the McCain-Feingold law—the ban on unlimited “soft-money” contributions by corporations, unions and wealthy individuals directly to political parties—remains intact for now, the reasoning of the Supreme Court’s decision undermines the very foundation of a host of laws enacted to strengthen our democracy and curb corruption in government.

The court’s decision gives a green light to corporations to unleash their massive coffers on the political system. Oil companies, with virtually no harm to their balance sheets, can now try to “take out” members of Congress who don’t toe their company line on energy policy. Foreign-owned companies—even those owned and controlled by foreign governments—are free to underwrite the candidates of their choice.

This new reality strengthens the grip that corporations already have on our democratic institutions. Time and again, the American people have seen their concerns ignored in favor of wealthy interests: in the approval of trade agreements that sent their businesses and jobs overseas, and the undoing of common-sense safeguards on financial companies that contributed to the worst financial crisis since the Great Depression, among many other decisions.

I will be working with my colleagues to try to restore the voice of the average citizen in elections. We must not stand by as corporations threaten to dominate our democratic process.
[Threaten to dominate? Their lobbyists have already purchased the Congress, the presidency and many state legislatures, this decision just guarantees that it will stay that way. - Chris] In our democracy, it’s the power of the voters—not the power of corporate wealth—that should decide our elections.

[Emphasis Added - Chris]

Sen. Russ Feingold, D-Wis., can be reached at 506 Hart Building, Washington, D.C. 20510-4904; phone (202) 224-5323; e-mail russell_feingold@feingold.senate.gov.
Also worth noting is the following quote from Thomas Jefferson, the principle author of the Declaration of Independence:

I hope we shall... crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and to bid defiance to the laws of our country.”
~ Thomas Jefferson, letter to George Logan. November 12, 1816

And Jefferson was not alone. In a recent article published in CounterPunch, (Defending the Money Machines, Et Tu, ACLU? http://www.counterpunch.org/fitrakis01272010.html), Fitrakis and Wasserman remind us that "Nowhere in the Constitution do the Founders mention the word corporation. There were six of them at the time of ratification, all strictly limited by state charter to where and what kind of business they could do. They bear scant resemblance to the multi-national behemoths we confront today. Those who wrote and ratified the First Amendment would be horrified by their very existence."

Santa Clara County v. Southern Pacific Railroad Company

Of equal importance is another interesting tid-bit concerning the alleged Supreme Court decision, a poster child for judicial activism, granting corporations the "same right of living persons" back in 1886. Apparently, the Supreme Court never even publicly argued the question. While I was aware of the idea that the high court ruled that corporations had the same rights as people, the facts of the case had not become a part of my consciousness. There are accounts of the case on Wikipedia and elsewhere that attest to the fact that it was never officially and publicly argued, but here is a concise account with links:

(rat haus reality--ratical branch http://www.ratical.org/corporations/SCvSPR1886.html):
This is the text (http://www.ratical.org/corporations/SCvSPR1886.html#118US394) of the 1886 Supreme Court decision granting corporations the same rights as living persons under the Fourteenth Amendment to the Constitution. Quoting from David Korten's "The Post-Corporate World, Life After Capitalism" (http://www.ratical.org/many_worlds/seeingPCW.html pp.185-6):

 In 1886, . . . in the case of Santa Clara County v. Southern Pacific Railroad Company, the U.S. Supreme Court decided that a private corporation is a person and entitled to the legal rights and protections the Constitutions affords to any person. Because the Constitution makes no mention of corporations, it is a fairly clear case of the Court's taking it upon itself to rewrite the Constitution.

Far more remarkable, however, is that the doctrine of corporate personhood, which subsequently became a cornerstone of corporate law, was introduced into this 1886 decision without argument. According to the official case record, Supreme Court Justice Morrison Remick Waite simply pronounced before the beginning of arguement in the case of Santa Clara County v. Southern Pacific Railroad Company that:

          "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does."

          The court reporter duly entered into the summary record of the Court's findings that:

          The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteen Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.

Thus it was that a two-sentence assertion by a single judge elevated corporations to the status of persons under the law, prepared the way for the rise of global corporate rule, and thereby changed the course of history.

 The doctrine of corporate personhood creates an interesting legal contradiction. The corporation is owned by its shareholders and is therefore their property. If it is also a legal person, then it is a person owned by others and thus exists in a condition of slavery -- a status explicitly forbidden by the Thirteenth Amendment to the Constitution. So is a corporation a person illegally held in servitude by its shareholders? Or is it a person who enjoys the rights of personhood that take precedence over the presumed ownership rights of its shareholders? So far as I have been able to determine, this contradiction has not been directly addressed by the courts.

More alternative information about corporations can be found at:
Ending Corporate Governance--Revoking Our Plutocracy

More historical context can be found in the defense of the "Fairness Doctrine" by the Supreme Court in 1969, and in the vetoes by former President Reagan, formerly a corporate TV ad spokesperson for General Electric, in the following 2005 article from Fairness & Accuracy In Reporting (FAIR). The article also supports the notion that the "Supreme Court" is little more than a political institution, which has been underlined by the recent decision of the Republican Roberts court. The "Fairness Doctrine" even back then attempted to address the huge power of corporations in controlling the informational and ideological content that flows from the "airwaves" i.e., frequencies/channels, which are owned by the American people, but controlled by corporate media. Think FOX "news," CBS, NBC, ABC & etc. Even FAIR's presentation can be interpreted as "soft" in its defense of the rights of Americans to control those frequencies, because it doesn't argue against lax standards, and corporate influence over the "airwaves" has only been expanded over the years through media consolidation, resulting in even fewer corporations controlling the information that Americans recieve.

Here is the FAIR article. (Read the article on the link provided for more useful links):
Extra! January/February 2005

The Fairness Doctrine
How we lost it, and why we need it back


By Steve Rendall

A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a...frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others.... It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.
— U.S. Supreme Court, upholding the constitutionality of the Fairness Doctrine in Red Lion Broadcasting Co. v. FCC, 1969.

When the Sinclair Broadcast Group retreated from pre-election plans to force its 62 television stations to preempt prime-time programming in favor of airing the blatantly anti–John Kerry documentary Stolen Honor: Wounds that Never Heal, the reversal wasn’t triggered by a concern for fairness: Sinclair back-pedaled because its stock was tanking. The staunchly conservative broadcaster’s plan had provoked calls for sponsor boycotts, and Wall Street saw a company that was putting politics ahead of profits. Sinclair’s stock declined by nearly 17 percent before the company announced it would air a somewhat more balanced news program in place of the documentary (Baltimore Sun, 10/24/04).

But if fairness mattered little to Sinclair, the news that a corporation that controlled more TV licenses than any other could put the publicly owned airwaves to partisan use sparked discussion of fairness across the board, from media democracy activists to television industry executives.

Variety (10/25/04) underlined industry concerns in a report suggesting that Sinclair’s partisanship was making other broadcasters nervous by fueling “anti-consolidation forces” and efforts to bring back the FCC’s defunct Fairness Doctrine:

Sinclair could even put the Fairness Doctrine back in play, a rule established in 1949 to require that the networks—all three of them—air all sides of issues. The doctrine was abandoned in the 1980s with the proliferation of cable, leaving citizens with little recourse over broadcasters that misuse the public airwaves, except to oppose the renewal of licenses.

The Sinclair controversy brought discussion of the Fairness Doctrine back to news columns (Baltimore Sun, 10/24/04; L.A. Times, 10/24/04) and opinion pages (Portland Press Herald, 10/24/04; Fort Worth Star-Telegram, 10/22/04) across the country. Legal Times (11/15/04) weighed in with an in-depth essay headlined: “A Question of Fair Air Play: Can Current Remedies for Media Bias Handle Threats Like Sinclair’s Aborted Anti-Kerry Program?”

Sinclair’s history of one-sided editorializing and right-wing water-carrying, which long preceded its Stolen Honor ploy (Extra!, 11–12/04), puts it in the company of political talk radio, where right-wing opinion is the rule, locally and nationally. Together, they are part of a growing trend that sees movement conservatives and Republican partisans using the publicly owned airwaves as a political megaphone—one that goes largely unanswered by any regular opposing perspective. It’s an imbalance that begs for a remedy.

A short history of fairness

The necessity for the Fairness Doctrine, according to proponents, arises from the fact that there are many fewer broadcast licenses than people who would like to have them. Unlike publishing, where the tools of the trade are in more or less endless supply, broadcasting licenses are limited by the finite number of available frequencies. Thus, as trustees of a scarce public resource, licensees accept certain public interest obligations in exchange for the exclusive use of limited public airwaves. One such obligation was the Fairness Doctrine, which was meant to ensure that a variety of views, beyond those of the licensees and those they favored, were heard on the airwaves. (Since cable’s infrastructure is privately owned and cable channels can, in theory, be endlessly multiplied, the FCC does not put public interest requirements on that medium.)

The Fairness Doctrine had two basic elements: It required broadcasters to devote some of their airtime to discussing controversial matters of public interest, and to air contrasting views regarding those matters. Stations were given wide latitude as to how to provide contrasting views: It could be done through news segments, public affairs shows or editorials.

Formally adopted as an FCC rule in 1949 and repealed in 1987 by Ronald Reagan’s pro-broadcaster FCC, the doctrine can be traced back to the early days of broadcast regulation.

Early on, legislators wrestled over competing visions of the future of radio: Should it be commercial or non-commercial? There was even a proposal by the U.S. Navy to control the new technology. The debate included early arguments about how to address the public interest, as well as fears about the awesome power conferred on a handful of licensees.

American thought and American politics will be largely at the mercy of those who operate these stations, for publicity is the most powerful weapon that can be wielded in a republic. And when such a weapon is placed in the hands of one person, or a single selfish group is permitted to either tacitly or otherwise acquire ownership or dominate these broadcasting stations throughout the country, then woe be to those who dare to differ with them. It will be impossible to compete with them in reaching the ears of the American people.
— Rep. Luther Johnson (D.-Texas), in the debate that preceded the Radio Act of 1927 (KPFA, 1/16/03)

In the Radio Act of 1927, Congress mandated the FCC’s forerunner, the Federal Radio Commission (FRC), to grant broadcasting licenses in such a manner as to ensure that licensees served the “public convenience, interest or necessity.”

As former FCC commissioner Nicholas Johnson pointed out (California Lawyer, 8/88), it was in that spirit that the FRC, in 1928, first gave words to a policy formulation that would become known as the Fairness Doctrine, calling for broadcasters to show “due regard for the opinions of others.” In 1949, the FCC adopted the doctrine as a formal rule (FCC, Report on Editorializing by Broadcast Licensees, 1949).

In 1959 Congress amended the Communications Act of 1934 to enshrine the Fairness Doctrine into law, rewriting Chapter 315(a) to read: “A broadcast licensee shall afford reasonable opportunity for discussion of conflicting views on matters of public importance.”

It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the government itself or a private licensee. It is the right of the public to receive suitable access to social, political, aesthetic, moral and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.
— U.S. Supreme Court, Red Lion Broadcasting Co. v. FCC, 1969.

A decade later the United States Supreme Court upheld the doctrine’s constitutionality in Red Lion Broadcasting Co. v. FCC (1969), foreshadowing a decade in which the FCC would view the Fairness Doctrine as a guiding principle, calling it “the single most important requirement of operation in the public interest—the sine qua non for grant of a renewal of license” (FCC Fairness Report, 1974).

How it worked

There are many misconceptions about the Fairness Doctrine. For instance, it did not require that each program be internally balanced, nor did it mandate equal time for opposing points of view. And it didn’t require that the balance of a station’s program lineup be anything like 50/50. [Even though it should have at least suggested that goal. - Chris]

Nor, as Rush Limbaugh [drug use hypocrite who was addicted to the prescription drugs oxycodone and hydrocodone (http://en.wikipedia.org/wiki/Rush_Limbaugh#Prescription_drug_addiction) - Chris] has repeatedly claimed, was the Fairness Doctrine all that stood between conservative talkshow hosts and the dominance they would attain after the doctrine’s repeal. In fact, not one Fairness Doctrine decision issued by the FCC had ever concerned itself with talkshows. Indeed, the talkshow format was born and flourished while the doctrine was in operation. Before the doctrine was repealed, right-wing hosts frequently dominated talkshow schedules, even in liberal cities, but none was ever muzzled (The Way Things Aren’t, Rendall et al., 1995). The Fairness Doctrine simply prohibited stations from broadcasting from a single perspective, day after day, without presenting opposing views.

In answer to charges, put forward in the Red Lion case, that the doctrine violated broadcasters’ First Amendment free speech rights because the government was exerting editorial control, Supreme Court Justice Byron White wrote: “There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all.” In a Washington Post column (1/31/94), the Media Access Project (MAP), a telecommunications law firm that supports the Fairness Doctrine, addressed the First Amendment issue: “The Supreme Court unanimously found [the Fairness Doctrine] advances First Amendment values. It safeguards the public’s right to be informed on issues affecting our democracy, while also balancing broadcasters’ rights to the broadest possible editorial discretion.”

Indeed, when it was in place, citizen groups used the Fairness Doctrine as a tool to expand speech and debate. For instance, it prevented stations from allowing only one side to be heard on ballot measures. Over the years, it had been supported by grassroots groups across the political spectrum, including the ACLU, National Rifle Association and the right-wing Accuracy In Media.

Typically, when an individual or citizens group complained to a station about imbalance, the station would set aside time for an on-air response for the omitted perspective: “Reasonable opportunity for presentation of opposing points of view,” was the relevant phrase. If a station disagreed with the complaint, feeling that an adequate range of views had already been presented, the decision would be appealed to the FCC for a judgment.

According to Andrew Jay Schwartzman, president of MAP, scheduling response time was based on time of day, frequency and duration of the original perspective. “If one view received a lot of coverage in primetime,” Schwartzman told Extra!, “then at least some response time would have to be in primetime. Likewise if one side received many short spots or really long spots.” But the remedy did not amount to equal time; the ratio of airtime between the original perspective and the response “could be as much as five to one,” said Schwartzman.

As a guarantor of balance and inclusion, the Fairness Doctrine was no panacea. It was somewhat vague, and depended on the vigilance of listeners and viewers to notice imbalance. But its value, beyond the occasional remedies it provided, was in its codification of the principle that broadcasters had a responsibility to present a range of views on controversial issues.

The doctrine’s Demise

From the 1920s through the ’70s, the history of the Fairness Doctrine paints a picture of public servants wrestling with how to maintain some public interest standards in the operation of publicly owned—but corporate-dominated—airwaves. Things were about to change.

The 1980s brought the Reagan Revolution, with its army of anti-regulatory extremists; not least among these was Reagan’s new FCC chair, Mark S. Fowler. Formerly a broadcast industry lawyer, Fowler earned his reputation as “the James Watt of the FCC” by sneering at the notion that broadcasters had a unique role or bore special responsibilities to ensure democratic discourse (California Lawyer, 8/88). It was all nonsense, said Fowler (L.A. Times, 5/1/03): “The perception of broadcasters as community trustees should be replaced by a view of broadcasters as marketplace participants.” To Fowler, television was “just another appliance—it’s a toaster with pictures,” and he seemed to endorse total deregulation (Washington Post, 2/6/83): “We’ve got to look beyond the conventional wisdom that we must somehow regulate this box.”

Of course, Fowler and associates didn’t favor total deregulation: Without licensing, the airwaves would descend into chaos as many broadcasters competed for the same frequencies, a situation that would mean ruin for the traditional corporate broadcasters they were so close to. But regulation for the public good rather than corporate convenience was deemed suspect.

Fowler vowed to see the Fairness Doctrine repealed, and though he would depart the commission a few months before the goal was realized, he worked assiduously at setting the stage for the doctrine’s demise.

He and his like-minded commissioners, a majority of whom had been appointed by President Ronald Reagan, argued that the doctrine violated broadcasters’ First Amendment free speech rights [Sound Familiar?] by giving government a measure of editorial control over stations. Moreover, rather than increase debate and discussion of controversial issues, they argued, the doctrine actually chilled debate, because stations feared demands for response time and possible challenges to broadcast licenses (though only one license was ever revoked in a dispute involving the Fairness Doctrine—California Lawyer, 8/88).

The FCC stopped enforcing the doctrine in the mid-’80s, well before it formally revoked it. As much as the commission majority wanted to repeal the doctrine outright, there was one hurdle that stood between them and their goal: Congress’ 1959 amendment to the Communications Act had made the doctrine law.

Help would come in the form of a controversial 1986 legal decision by Judge Robert Bork and then-Judge Antonin Scalia [now supreme Court Justice], both Reagan appointees on the D.C. Circuit of the U.S. Court of Appeals. Their 2–1 opinion avoided the constitutional issue altogether, and simply declared that Congress had not actually made the doctrine into a law. Wrote Bork: “We do not believe that language adopted in 1959 made the Fairness Doctrine a binding statutory obligation,” because, he said, the doctrine was imposed “under,” not “by” the Communications Act of 1934 (California Lawyer, 8/88). Bork held that the 1959 amendment established that the FCC could apply the doctrine, but was not obliged to do so—that keeping the rule or scuttling it was simply a matter of FCC discretion.

“The decision contravened 25 years of FCC holdings that the doctrine had been put into law in 1959,” according to MAP. But it signaled the end of the Fairness Doctrine, which was repealed in 1987 by the FCC under new chair Dennis R. Patrick, a lawyer and Reagan White House aide.

A year after the doctrine’s repeal, writing in California Lawyer(8/88), former FCC commissioner Johnson summed up the fight to bring back the Fairness Doctrine as “a struggle for nothing less than possession of the First Amendment: Who gets to have and express opinions in America.” Though a bill before Congress to reinstate the doctrine passed overwhelmingly later that year, it failed to override Reagan’s veto. Another attempt to resurrect the doctrine in 1991 ran out of steam when President George H.W. Bush threatened another veto.

Where Things Stand

What has changed since the repeal of the Fairness Doctrine? Is there more coverage of controversial issues of public importance? “Since the demise of the Fairness Doctrine we have had much less coverage of issues,” says MAP’s Schwartzman, adding that television news and public affairs programming has decreased locally and nationally. According to a study conducted by MAP and the Benton Foundation, 25 percent of broadcast stations no longer offer any local news or public affairs programming at all (Federal Communications Law Journal, 5/03).

The most extreme change has been in the immense volume of unanswered conservative opinion heard on the airwaves, especially on talk radio. Nationally, virtually all of the leading political talkshow hosts are right-wingers: Rush Limbaugh, Sean Hannity, Michael Savage, Oliver North, G. Gordon Liddy, Bill O’Reilly and Michael Reagan, to name just a few. The same goes for local talkshows. One product of the post-Fairness era is the conservative “Hot Talk” format, featuring one right-wing host after another and little else. Disney-owned KSFO in liberal San Francisco is one such station (Extra!, 3–4/95). Some towns have two.

When Edward Monks, a lawyer in Eugene, Oregon, studied the two commercial talk stations in his town (Eugene Register-Guard, 6/30/02), he found “80 hours per week, more than 4,000 hours per year, programmed for Republican and conservative talk shows, without a single second programmed for a Democratic or liberal perspective.” Observing that Eugene (a generally progressive town) was “fairly representative,” Monks concluded: “Political opinions expressed on talk radio are approaching the level of uniformity that would normally be achieved only in a totalitarian society. There is nothing fair, balanced or democratic about it.”

Bringing Back Fairness?

For citizens who value media democracy and the public interest, broadcast regulation of our publicly owned airwaves has reached a low-water mark. In his new book, Crimes Against Nature, Robert F. Kennedy Jr. probes the failure of broadcasters to cover the environment, writing, “The FCC’s pro-industry, anti-regulatory philosophy has effectively ended the right of access to broadcast television by any but the moneyed interests.”

According to TV Week(11/30/04), a coalition of broadcast giants is currently pondering a legal assault on the Supreme Court’s Red Lion decision. “Media General and a coalition of major TV network owners—NBC Universal, News Corp. and Viacom—made clear that they are seriously considering an attack on Red Lion as part of an industry challenge to an appellate court decision scrapping FCC media ownership deregulation earlier this year.”

Considering the many looming problems facing media democracy advocates, Extra! asked MAP’s Schwartzman why activists should still be concerned about the Fairness Doctrine.

What has not changed since 1987 is that over-the-air broadcasting remains the most powerful force affecting public opinion, especially on local issues; as public trustees, broadcasters ought to be insuring that they inform the public, not inflame them. That’s why we need a Fairness Doctrine. It’s not a universal solution. It’s not a substitute for reform or for diversity of ownership. It’s simply a mechanism to address the most extreme kinds of broadcast abuse.

See FAIR's Archives for more on: 
Narrow Range of Debate
 & Telecom Policy

A Libertarian Viewpoint:

(which ignores the larger context of control by corporations of most of the media easily accessible to most Americans, including newspapers. All we have left are voices on the internet, which except for the power of search engines, are like needles in a haystack.)

On last Friday's Bill Moyers Journal on PBS (http://www.pbs.org/moyers/journal/index-flash.html), Moyer's gave airtime to a libertarian, Nick Gillespie ("Editor-in-Chief of Reason.TV and the website Reason.com,"), as he should. In the segment, he aired a portion of a video incapsulating Gillespie's opinions, which are similar to some I have heard from a libertarian here in Baker City. The quote is below, and my response is interspersed:

NICK GILLESPIE: Whoa, what's got this trio of patriots so riled up about the end of free speech in America? Ironically it's a Supreme Court ruling about a political film that was actually censored by the federal government. To call the apocalyptic rhetoric about the Citizens United overheated is a massive understatement for at least three reasons.
[I'm beginning to think Gillespie is auditioning for a right-wing radio talk show!--Chris]

[Of course McCain Feingold limited when the corporate ad could be shown but did not censor the ad itself. McCain Feingold was in part an attempt to limit the influence of corporations by not allowing them to use their vast sums to buy up all the available time on the airwaves to fill them with nonsense and distortions in the last days of political campaigns. They could air their views ad-nauseum in the corporate controlled media prior to those last days, as they do every single day of your life. - Chris]

Gillespie's Reasons:

1) Twenty-six states already allow corporate donations in this context. Do you think places like Utah, Missouri and Virginia [and Oregon & California] are more corrupt than states that don't allow corporations to voice opinions on political matters?

[26 is barely more than half of of our 50 states. Does that prove anything at all? Where is a study showing that the 26 states allowing corporate contributions in the last days of an election are less corrupt than the other 24 who don't? The fact that bankrupt California and struggling Oregon are included in the 26 holds no water with me. Without such studies I will trust common sense. Additionally, it ignores the reason why I believe most people think that corporate influence is excessive, which goes beyond the decision in question. I do think that most people would agree that corporate influence has affected laws concerning health care and automobile Insurance, including government requirements for a single individual to insure every owned automobile, no matter how much it is driven, with insurance costing the same as if it were driven every day (not to mention an auto insurer's ability to total a perfectly useful car without paying the price for repairs), are influenced by corporate money and influence on policy makers. Just today, an acquaintance told me an insurance company denied his request for insurance unless he could prove he has been driving with insurance, the ultimate catch-22. Readers will likely come up with many more examples.--Chris]

[Gillespie continues]

2)For decades many corporations have been intricately enmeshed within the political process, even going so far as to publicly support specific candidates and specific pieces of legislation. You know them better by names like "The New York Times," "The Wall Street Journal," "The Washington Post," "USA Today," "The Los Angeles Times" and basically every major newspaper in the country. If we can withstand "The New York Times" telling us who to vote for, we can probably withstand Exxon Mobil trying to tell us to vote for Sarah Palin, or against Joe Biden.

[Here, Gillespie ignores the whole reason for limiting corporate control of information by stating an example of corporate control--the corporate newspaper industry. I and many others who feel that corporate speech has gone way to far cite corporate control of the press and the publishing industry as a primary example of how corporations have monopolized speech in those sectors. Sure, you can write a very short letter to the editor, but the papers can write long editorials and continuously print the most obnoxious Op-Eds, editorial cartoons, and book reviews of their choosing. Writers with seriously alternative views, those that challenge the prevailing ideology and power, are forced to go to obscure publishing houses (or blogs) to get their views or books in print, and the mainstream, primarily corporate controlled media, will rarely, if ever, mention their existence or print an objective review.]

3) More speech is never a bad thing, whether it's funded by Citizens United, or by Microsoft, or by the Teamsters Union. And it's especially not a bad thing right before an election when politics matters most. If you want to get exercised over something, don't get bent out of shape over a court ruling that actually increases free speech. Instead turn your ire on a government that is vast and growing and helps or hinders corporations based on political lobbying rather than marketplace forces.

[Here, Gillespie knowingly obscures the obvious difference in money and power between individuals and corporations. The fact that by comparison to real "persons," corporations have enormous sums of money to buy up the available airtime is completely ignored. (This is the same blindspot that allows libertarians to think that poor people exist on a "level playing field" with the rich when seeking economic and social opportunity.) "More speech," when it drowns out the voices of individuals, the people, is obviously a bad thing.

Additionally, most reasonable people, and a Supreme Court decision, accepts that a "person" cannot shout fire in a crowded theater when it would "create a clear and present danger that they will bring about . . . substantive evils." In this case, the "clear and present danger" is that monopolization of speech by corporations, will, and does, undermine democracy (Schenck v. United States in 1919, http://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater)). While this decision was modified by "Brandenburg v. Ohio," which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action" (http://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater), that doesn't negate the soundness of Oliver Wendell Holmes, Jr.'s view (even though he applied it poorly to anti-war protesters), or the reasoning in support of the "Fairness Doctrine."]

See also:

Restoring Trust in Our Democracy: Larry Lessig's Presentation for the Fair Elections Now Act

As we've watched presidents in both parties fail to pass their agendas, it's become increasingly clear that elections are no longer where decisions are made in this country. That weakening of our democracy should frighten everyone equally, whether or not you support the people currently in power.

Our goal is to restore public trust in our government by passing a hybrid of small-dollar donations and public financing of elections.



Moyers Journal 2/5/10