Tag Archives: free speech

Formalism: When a Lie Becomes Truth (really)

It was shocking when Sarah Palin accused the Democrats of being corporatists. Are Democratic politicians influenced to make decisions based on corporate lobbing and money? The pre-‘Citizens United’ answer was yes, as for Republican politicians as well. However, this is no longer true, post-‘Citizens United’. With the Citizens United, Supreme Court decision, corporations are people too. Don’t corporations have the right to influence politicians just as private individuals? This is the decision of the Supreme Court. Did the Supreme Court legalize corporatism? If you do not believe that they did with the Citizens United decision then why would you accuse the Democrats of corporatism? Democrats are participating in free speech. If corporations are people too, they have the right to free speech just like anyone else. Just because they can speak with more money than most individuals, you cannot hold that against them. We all know that politicians and the electorate are not influenced by money, right? The politician and the electorate are free market agents that can make their own choice regardless of money, right? Technically, corporatism as envisioned by its most ardent fascist founder is:

“Fascism should more properly be called corporatism because it is the merger of state and corporate power.” – Benito Mussolini.


“Fascism: a system of government that exercises a dictatorship of the extreme right, typically through the merging of state and business leadership, together with belligerent nationalism.” American Heritage Dictionary (Houghton Mifflin Company, 1983)

In a corporate merger there is always a controlling party, typically a parent company. In the common conception of modern corporatism, I suppose the controlling party would be the corporate side of the equation although in historical corporatism it was the fascist government. In any case, without a contract specifying explicitly that the corporation is the controlling corporate partner in corporatism, the Supreme Court has made the common thinking about corporatism obsolete. Now, the law of the land has deemed the common understanding of corporatism to be the right to ‘free speech’. It seems that the Supreme Court decision has been critical for helping us see the kinder, gentler side of corporate ‘speech’ as opposed to the fascist side of corporatism. Therefore, we should look at the actual decision (already referenced above).

First, some background:

The Supreme Court overruled a previous Supreme Court decision in Austin v. Michigan Chamber of Commerce which prohibited corporations from using treasury money to support or oppose candidates in elections. The previous decision ruled that this prohibition did not violate the First and Fourteenth Amendments. In Citizens United the Supreme Court overruled the previous decision. [NOTE 1]

In Federal Election Commission v. Wisconsin Right to Life, INC., a corporation, Wisconsin Right to Life, challenged a Federal Elections Commission injunction that made it a federal crime for a corporation to use its general treasury funds to pay for any “electioneering communication”. The court ruled that the “speech at issue is not the “functional equivalent” of express campaign speech” because it did not advocate for a specific candidate. It did not make an “appeal to vote for or against a specific candidate” only “that a group of Senators was filibustering to delay and block federal judicial nominees and telling voters to contact Wisconsin Senators Feingold and Kohl to urge them to oppose the filibuster”.

The Decision:

“In January 2008, appellant Citizens United, a nonprofit corporation, released a documentary (hereinafter Hillary ) critical of then-Senator Hillary Clinton, a candidate for her party’s Presidential nomination.” [Citizens United]

Here are the main components of the decision with my comments:

Austin was overruled. Expenditures by corporations on political speech could not be limited. The Bush administration law, Section 203 of the Bipartisan Campaign Reform Act of 2002, was ruled unconstitutional.

“The court ruled “the First Amendment provides that “Congress shall make no law … abridging the freedom of speech,”” and that “prohibition on corporate independent expenditures is an outright ban on speech”.

Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion.”

This invalidates any common, informal form of corporatism. According to our government, the Supreme Court, the line between corporate free speech and corporatism could be crossed with “compelling interest” that is “narrowly tailored to achieve that interest”. In other words, a breach would have to be an outright bribe (“quid pro quo corruption”) or a contract assigning control of the government to a corporation. Short of this, any other corporate activity in the political arena is now protected as free speech. Citizens United has effectively redefined corporatism to its most formal meaning.

In Section 2.c.1 of the ruling the court went on to suggest, “The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech” and this would be violated if government were “to ban political speech because the speaker is an association with a corporate form”. The government cannot discriminate on the basis of gender, religion and now, corporate affiliation. “Political speech is “indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation.””

Additionally, the First Amendment protections “do not depend on the speaker’s “financial ability to engage in public discussion””. Therefore, “Distinguishing wealthy individuals from corporations based on the latter’s special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech”. The wealthy cannot be discriminated against in free speech because they have money; neither can corporations. The “open marketplace” of ideas would not be open if advocates are discriminated against because they have money (or its corollary power). The court even went on to call restrictions on corporate involvement in politics “censorship”. [NOTE 2]


Speaking for you, the court determined:

“this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.”

‘Influence’ is not corruption. Here again, corruption has lapsed into a more formal definition which obviously excludes influence (or influence peddling). The court even found that “Political speech is so ingrained in this country’s culture that speakers find ways around campaign finance laws.” so why have them? Murderers find ways around the law against murder so why have the law (but I digress)? Even more, there is no possibility for corruption with mere ‘influence’ no matter how strong the influence but the least little notion that a corporate contributor could suffer reprisal is enough for the court to sanction the right to not disclose where the ‘speech’ is coming from. The court found that contributors would not have to be disclosed “if a group could show a ” ‘reasonable probability’ ” that disclosing its contributors’ names would ” ‘subject them to threats, harassment, or reprisals from either Government officials or private parties”. In effect, the court has ruled that corporations can ‘speak’ and we do not have to know who is speaking.

In the Citizens United decision the natural antipathy previous generations, including Democrats and Republicans, had about corporatism and enacted into law was overruled. The court favored a much more formal definition of corporatism that made it the law of the land to evacuate any fuzzy notions of corporatism in favor of a very narrow and formal definition; everything else is fair game. Effectively the court has told us there is no corporatism in the United States because we have redefined corporatism. It is no consequence that every dictator redefines democracy to apply to their regime. Hitler did not exterminate ‘people’ (‘National Socialism’ was ‘socialism’ that only applied to real people). The real free market can solve all social ills.

Historically, anything can be justified by redefinition, appealing to the formal case. Academics have found this to be a very resourceful technique over the years. If corporatism can be redefined from the common understanding to a purely formal definition of a fascist form of government (which we are not by law), the previously understood common manifestations of corporatism can now be deemed ‘free speech’. Our government, the Supreme Court, has for all intents and purposes made the law of the land deny corporatism in the United States. It is ironic that the conservative decision would be ignored by folks like Sarah Palin (when it comes to Democrats at least) who insist there is corporatism in this country. You can’t have it both ways: Either we have corporatism in the United States or we have ‘free speech’. To play both sides is disingenuous.




[NOTE 1] It is interesting to note that public agencies are prohibited from taking political stands and contributing to political campaigns. Corporations are ‘subsidized’ by the public with a lower tax rate than most individuals who pay taxes. If corporations are now people too and protected under the individual’s right to free speech, shouldn’t they start paying individual income tax rates?

[NOTE 2] Free market fundamentalists should have no problem with the Citizens United decision. As the wealthy should not be penalized by the government for doing well, corporations should not be penalized for ‘speaking freely’. Influence and power have nothing to do with the government right?


Money is Free Speech? (update 1/19/12)

The Supreme Court’s decision that makes money speech and therefore protected as free speech under the Constitution is problematic in two areas that I would like to address:

1. How can money be speech?
2. If money is speech how does it differ from speaking?

First, the most obvious observation is that money is not speech. You can place as many dollar bills on the counter that you want and it will never talk to you unless you have a serious mental illness. I assume the Supreme Court members do not have serious mental illnesses so how could they have arrived at this decision? Well, money buys television time and provides a huge megaphone for those that can afford it. However, buying television time is itself not yet speech. Literally, speech occurs in the commercial. Consider this, if a guy talks about robbing a bank he has not broken any law. However, if he actually robs the bank he is guilty of a crime. This is typical of many laws but not all as I will discuss later. Likewise, if Super PACs buy commercial time it is not the same as the speech that occurs in the commercial. It seems that, on the surface, suggesting that money is speech is a huge false equivocation. It would be like saying a tree is a house. Sure, you could cut a lot of trees up into boards and make a house with them but what is meant by ‘tree’ and ‘house’ are two distinct things. If the Supreme Court is using ‘money’ as a metaphor for ‘speech’ they are getting on very slippery legal grounds as metaphors can and do contain similarities between two referents but they also can and do contain dissimilarities between two referents. This tension is actually what makes a metaphor a metaphor otherwise the use of a metaphor would be unwarranted as a tree is a tree. A poet might suggest a tree is like a house providing shelter but a tree is not a house. If legal language opens to door to metaphor it is doomed. So, on the surface, it is very difficult to understand how money could be thought as speech. However, if we can get past that what if money is speech?

If money is free speech as the Supreme Court maintains then what about those without money? Sure, they have free speech – they are free to talk to themselves all they want. However, if speech means communication with others, don’t we have to look at how the speech of money differs from the speech of individuals? Money carries a big stick when it comes to ‘free speech’. It is not the power of dialectic persuasion, the logic of a better argument or the free market of ideas – it is the tried and true manipulative ability of marketing. When speech is rigged for pure manipulation the word we have for that is a ‘con’.

A con man manipulates others for their gain. This type of speech can result in illegal activity but the Supreme Court would support the view that the speech in itself is not illegal but only if the speech results in a crime. In this case, the crime is illegal but not whatever led up to it. While this is perfectly understandable, doesn’t it set up the stage for those with money to get others to do their dirty work while they get off scot free? In law there is a notion of conspiracy. If others conspire to commit a murder they can be held just as responsible as the actual murderer. Yes, the conspirators only committed a speech act but there is precedence for people to be held guilty of criminality for speech acts. However, conspiracy to commit the crime of murder has only relatively recently been deemed a crime. The gangsters of the roaring twenties would not have existed had it been a crime. So, law can and does change over time.

Many people find it ludicrous that the Wall Street investors that broke the country not only were rewarded well for doing it but none broke any laws. Yes, as President Bush admitted, we started the Iraq war by mistake and killed hundreds of thousands of people but no laws were broken. In a democracy laws are suppose to be of the people and for the people. When laws lose touch with their fidelity to this purpose we have the kangaroo court and the banana republic. When laws are circumvented by the state of exception (i.e., laws do not apply to such and such an exceptional condition, laws help this class of people but not this class) there is no systemic way to draw the line at what are the exceptional conditions and what are the applicable conditions. The more this occurs the more people lose faith in the system. Our demise as a country is dependent on the breakdown in faith in law. When law is lawless criminals are kings.

The identity of speech and money is covertly an identity of speech and power. Isn’t this the Orwellian dilemma of 1984? While money may be speech it is certainly power over the individual. This implicitly equates power to speech. Is power a crime? Well, perhaps not in an absolute, abstract sense but what about the propaganda of Hitler? Was his propaganda a crime? Well, according the ideal set by the Supreme Court, no. It was what people did with his rhetoric that was a crime. Doesn’t this notion of speech and money (viz. power) let Hitler of the hook scot free? As far as I know he never personally pulled the trigger himself so given a strict interpretation of power and speech, I guess we could not convict him in the United States. The other side of this question is the slippery slope argument. Where do you draw the line if some speech is not legal? Well, we already have drawn the line in the case of conspirators and murder and Hitler would certainly be guilty in this sense. The difference one might contest is that the speech of Hitler resulted in murder, a crime. The speech of political money does not directly result in a criminal act. Well, this is true. There is no crime in rigging the free market to throw folks out of their house (http://mixermuse.com/blog/2012/01/11/the-great-recession-how-the-free-market-got-rigged/). There is no crime letting people without health insurance die in the over-crowded emergency room. There is no crime letting kids go hungry without school lunches. There was no crime in letting older Americans die on the side of the road at the start of the Great Depression. There is no crime in 1 out of 2 Americans living at or near poverty. There is no crime in the haves and the have nots – it is capitalism – even if it results in misery and death. Well, this is actually correct – there is no crime. Laws are not equipped to handle this kind of disparity. This is the realm of morality in our country.

Morality is a type of law that is neither jurisprudence or optional. While we are certainly not obligated to have any concern for other people’s misery and suffering, no one gets put in jail for not caring. However, don’t we lose something that most people value by disregarding everyone else but ourselves? Don’t we set up a system in so doing that could just as easily target the a-moralist as the moralist? Is Darwinian fight for individual survival at everyone else’s expense the way to sustain a country? Isn’t there a least a need for a pretense to morality to hold the fabric of a community together? When the individual is held up over and against the need of an individual for their community isn’t anarchy the order of the day. Machiavelli called this the war of all against all; it is the world of Mad Max. Have we fundamentally misunderstood law if law is only an excuse for injustice? Has morality become the window dressing for oppression when it no longer motivates our laws? When these questions come to the fore it can truly be said that the fabric of our society is threatened. The system cannot be sustained under this duress. If it tears us apart we will be Afghanistan. We will be factions of tribes that cannot help but kill each other. We will have devolved. The insistence that money is speech opens the door for these thoughtful considerations.

Unfortunately, extremism has been pedaled recently that pits the fight for survival with the insistence of morality. Republicans are fond of telling us the sky is falling and national collapse is imminent unless we vote for a Republican. For the electorate, morality will lose in every case if survival is pitted against morality. Additionally, morality itself is more often than not historically speaking not very ‘moral’. The Germans thought of themselves as morally irreproachable while slaughtering millions in concentration camps. Our country allowed and condoned slavery in some cases based on ‘moral’ arguments. It may be that morality itself is a lie we tell ourselves but in any case it has a certain historical force of conviction. Even if it is denied altogether, the question of morality appears every time we face a person suffering and turn away. The fact is that those that pedal survival against moral responsibility have a self-defeating philosophy. Survival is not possible in the war of all against all. Sooner or later the tides turn on the strongest and their elitist bellowing turns to anguish; what goes around comes around. Morality is not optional even if survival is at stake. Even if morality itself is fraught with contradictions and difficulties we only deny its compulsion at our own expense. We have no choice but to find a way to authentically respond to the suffering of the other without losing our way in our efforts – trash talk about our survival may serve certain political goals but will not address the underlying problems.

Update 1-19-12

The case is actually concerning the restrictions previosuly set on corporations for political involvment. The court ruled that corporations are ‘people too’ and therefore entitled to free speech as individuals are…have to think about this some more…