Of Persons, Corporations, Money and Speech

These are the times that try men's souls. On the one hand we have the Supreme Court of the United States empowering corporations at a time when they already come far too close to owning our representatives, our government and our country. On the other, we have a populace that doesn't understand how our most fundamental principles tie to either this question or the trying of accused terrorists.

Someone MUST speak out about the nature of our Rights and our Constitution.

We seem to have forgotten the truths that our founding fathers took to be self-evident, the principles to which our nation was dedicated. Many on the left are decrying the recent Citizens United Supreme Court decision, while at the same time civil libertarians often thought to be on the left have spoken in defense of the decision. As it turns out the questions here are not simple, and to work them out requires really knowing both how the system works and what the underlying principles are. It's not easy stuff, and we seem unprepared for it.

Let me start by agreeing with those who fear undue influence and power is given to the corporations, domestic, foreign and multinational by this decision. This decision does, in fact, remove important safeguards against the super-rich corporations overwhelming our electoral process with huge amounts of money. Not only that, but it opens our government to the influence of foreign money and foreign-owned corporations. It's easy to sneer at that last accusation (one Supreme Court Justice did just that), claiming that the decision only applies to US corporations, but that ignores the fact that being incorporated in one of the United States is very different from being owned exclusively or mostly by US citizens. Citgo, for instance is incorporated in the US, but it is owned by Petróleos de Venezuela. It is a "US corporation", ye, but it is also an entirely "foreign owned corporation". If Citgo has a right of free speech that allows it to finance political campaigns in the US, then Hugo Chavez who runs the government of Venezuela, who owns PDV, who owns Citgo, has that right. Many people think that this is not a good thing.

But let me also say that people like Glenn Greenwald and Jonathan Turley also have a very real and valid point that the decision in Citizens United, which empowers Citgo, and PDV and Venezuela and Chavez is based on long standing principles of Constitutional law, law that has both important practical justifications and a basis in our most sacred principles. Greenwald has written on the topic at "What the Supreme Court got right" and "Follow-up on the Citizens United case". I recommend reading both, though I do not agree with everything that he wrote. Turley wrote a lengthy commentary in his blog and spoke about the topic on a segment of Countdown.

Greenwald makes the point that none of the nine Justices agree with those of us who argue that it is a problem that the law holds that corporations are people and that money is speech. On the latter he lays out a rather specific challenge. He says that if we are to claim that speech isn't money then we have to explain what will protect us from laws like the following (he gives several hypothetical examples, I'm using one for brevity):

"It shall be illegal for anyone to spend money to criticize laws enacted by the Congress; all citizens shall still be free to express their views on such laws, provided no money is spent;"

My own response is that this is absolutist rhetorical flummery, that if money is speech, you get into problems just as deep:

If money is speech, then the First Amendment must give me the right to pay my Congressman to take an action I wish him to, because I have the right to tell him what I want him to do.

Clearly I have a right to tell my representative what I want him to do. If I cannot, I have lost not only the right of free speech, but also the right to representation, which is definitionally inherent in a Republic. But that doesn't give me the right to put my money where my mouth is and pay him to vote my way. That's bribery and corruption.

In the end, I do not believe that either absolute extreme, that money is speech or that money has nothing to do with freedom of speech is tenable, but, and it is a big "but", but Constitutionally protected rights, natural rights tend to be absolutist. That is one of their strengths. "Congress shall make no law..." like "Thou shall commit no murder" (I hope you'll forgive my slightly non-traditional, but I believe accurate translation of the Commandment) is strong because it is a prohibition. once you get into qualifying them you start allowing loop holes and we all know where that gets you.

I think we need to recognize that Constitutionally protected rights are not an artifact of law, are not granted by the government, judges or the Founders, but are rather natural rights, with which we are endowed by our Creator, whatever you consider said Creator to be. Corporations, are NOT natural, though. They ARE social constructs, the product of law, goverment and the consensus of society. When we constitute them, when we incorporate them as entities within our legal system, I think we have to say that they have rights, but that those rights are not inherent, that they derive from the rights of the people they comprise, and who create the corporations. We endow the corporations with rights and we can limit them.

Similarly, money is a social construct and while there are certainly moral aspects to money and to its use, it is not, in and of itself, speech. It can be used to enable or discourage speech and can be used to violate the rights of others, or with deference to their rights or to empower people, ourselves or others with regard to their rights. "Money is speech, speech is protected, money is thus protected" is a nice syllogism. It is simple and understandable, it is easy to derive conclusions from it. But it is oversimplified.

Einstein was right. "Make everything as simple as possible. And no Simpler."

Where does that analysis get us? Certainly NOT to a Constitutional amendment. But, given that corporations are created by legislation, Why can't legislation explicitly limit and define the rights and obligations they have? And since corporations are primarily commercial in nature, why can't regulating them be a federal function? The state laws define and control corporations and the methods of incorporation, but in the name of regulating interstate commerce, cannot the federal government set certain limits on corporations and the laws that control them?

This ties in to a number of issues before us today:

1. The empowering of corporations on the grounds of free speech.
2. Regarding money as speech and thus giving the extremely rich a greater practical right to "speak".
3. The influence of foreign money through the free speech of US incorporated, foreign owned corporations.
4. The right of all US citizens and anyone in the US to habeas corpus and trial by jury.
5. "Getting FISA right" and the potential abuse of the USA PATRIOT Act.
6. A system which allows the government to try accused terrorists in whichever court they know they can convict them in.

For all of these, it is important to understand the nature of rights in US Constitutional principles. We need to ground these discussions not only in what makes us safe from terrorists or corporations or corruption, but in terms of the natural rights that all men are endowed with and which we the people do not allow our government to violate. Our fundamental, natural rights are not granted by the government, the King, or the Constitution, and understanding that, and the principles our whole system is based on is both important and sadly lacking in the discussion of a lot of these and other critical issues.

Protecting the Republic

The Democrats are failing us, as the recent FISA Court vote clearly demonstrates. They are not protecting our Civil Liberties, they are cowering before the political threats of a "politically weak" president and worst of all they are allowing him to arrogate more and more power into the Presidency. We need to make them understand that we want political leaders who will stand up for the People, our Liberties and the Republic.

Glenn Greenwald has written (here, here, here, here, here, and here) and spoken (here and here) extensively recently about how the Democrat-led Congress meekly deferred to the President and hastily revised the FISA laws, greatly expanding the government's power to secretly and without judicial or Congressional review tap any telephone or email communications that can be "reasonably believed" to be outside the US. Many others have taken up the cry and all of the Democratic Presidential hopefuls have distanced themselves from the action.

Most of the writing on this topic has spoken about the great harm done to our Civil Liberties, but as John Dean pointed out, in many ways, that is not the most important and dangerous aspect of the incident. Dean wrote in FindLaw's on-line journal, The Writ, an article entitled "The So-Called Protect America Act: Why Its Sweeping Amendments to the Foreign Intelligence Surveillance Act Pose Not Only a Civil Liberties Threat, But a Greater Danger As Well". In it he wrote,

The most stunning aspect of the Democrats' capitulation is their abandoning of their institutional responsibility to hold the president accountable. The Protect America Act utterly fails to maintain any real check on the president's power to undertake electronic surveillance of literally millions of Americans. This is an invitation to abuse, especially for a president like the current incumbent.

Greenwald and numerous others have written of the FISA fiasco, that congress capitulated to the "weakest President" in recent history. Witness:

It is staggering, and truly disgusting, that even in August, 2007 -- almost six years removed from the 9/11 attacks and with the Bush presidency cemented as one of the weakest and most despised in American history -- that George W. Bush can "demand" that the Congress jump and re-write legislation at his will, vesting in him still greater surveillance power, by warning them, based solely on his say-so, that if they fail to comply with his demands, the next Terrorist attack will be their fault. And they jump and scamper and comply.

-- Glenn Greenwald in Salon.com

Once again, the weakest president in the history of this country walks away a WINNER!!! Winning BIG TIME!

-- PinkytheBrain in a comment in Crooks and Liars

I do not understand how "Total Capitulation", jumping at the demand of the politcally weakest President in history, and craven betrayal of principle makes the Democrats "appear stronger".

-- LJean a comment in Balkinization

But if 41 Democrats lack the courage to stand up to the weakest president in decades at a time when every indicator they trust—polls, focus groups, pundits—is saying no to this man, when will they find the strength to stand?

-- Arlene Goldbard

By "weakest", of course, they mean that the President has extremely little support among the People, and after all the People are the source of power in our country and under our constitution. And so, lacking popular support the President should be weak, but in two very great senses, he is not. And therein lies the rub.

First of all, as they point out, the Democrats routinely, repeatably and predictably capitulate and give him pretty much anything he asks for. And secondly, what he has asked for is Power, and they have given it to him. They heap it on him and when they don't he just takes it and they stand by.

This President, this "weak" President has the authority to federalize the National Guard and deploy the US military within the borders of the US when, and I quote the new text of the insurrection act "as a result of ..., or other condition ... the President determines that ... domestic violence has occurred .. and such violence ... obstructs the execution of the laws ... or impedes the course of justice". It used to be that he could do so only to put down violent rebellion and insurgency, or to repel invasion. Now, natural disaster, terrorism or the unspecified "other condition" is sufficient. He used to be able to order insurgents to disperse, now he can issue a proclamation ordering "insurgents or those obstructing the enforcement of the laws to disperse". If he thinks peaceful protesters "obstruct enforcement", he can use the military to disperse them, once he has invoked this act. No other President has had this power.

With the FISA rewrite, it is not the Court but Attorney General Alberto Gonzales who oversees warrantless wiretaps. The same Alberto Gonzales who could not answer an opinion question asked of him in Congressional hearings without taking it back to "his principal"; who believes that the President as the sole supervisor of the "unitary executive" makes all decisions.

No, in terms of legal power, granted him and abdicated to him by the Congress, and his reconstituted Supreme Court, the current President has more pure executive and governmental power than any previous President. God help us if he were politically powerful as well.

So what are we to do about it? Well, we can turn out any Congressman who doesn't stand up to him. We can replace them with people who understand that their mandate is to protect our liberties, our constitutional government and the Republic. But what if there aren't enough. California has no Senator who voted against FISA. Only one did in Massachusetts. These are the supposed extreme liberal states. What if there aren't any Democrats with backbone in a senatorial or congressional primary? Well, I suppose you could vote for the John Bircher, or the Libertarian. But still, what if there aren't enough?

Well, at least, wrote people last weekend, none of the Democratic Presidential candidates voted for the FISA amendment. Perhaps the answer is to vote for a strong Democratic President who will whip Congress into shape and... wait a minute... Isn't that proposing that we turn to a Strong Presidential candidate to protect the Republic by weakening the Presidency? Is there, perhaps, just perhaps, a teeny little issue hiding in there?

This, boys and girls, ladies and gentlemen, is not going to be easy. The reason that power corrupts is that good people are tempted to use it--just for now--when it falls into their hands, for good purposes, and there are always good purposes that need power. And so power is seldom surrendered. The time to stop this isn't in the next election, it is now!

The FISA bill was only a temporary stopgap, with a 6-month sunset clause. Speaker Pelosi has sent a letter saying that when Congress returns next month, they'll need to reexamine it. But President Bush has also said that it needs to be revisited. It is, he feels only a first step, and the whole change needs to be made. Congress has to grant him and the executive branch, which as the sole supervisor of the unitary executive, means him, more power, more immunity from oversight, more protection from prosecution for him and those who go along with him, inside or outside the law.

The time to act is now. Make sure your voice, your free voice for so long as it remains so, is heard. Demand that your congressmen stand up for the Republic and against the concentration of ever more power into the President's hands.

Vox Libertas
A Free Voice, that cries Freedom!