Last week I argued here that the best way to react to Citizens United was to enact a
constitutional amendment assuring that business corporations
have no free speech rights, and dismissing any position
claiming that regulating the speech of business corporations interferes with
the rights of their potential listeners. On this analysis, if a business
corporation engages in free press activity, it would be protected. If a
non-profit corporation engaged in free speech activities, it would ordinarily
be protected under the First Amendment except to the extent that it accepted
financing from business corporations.
Two of the most significant
grassroots organizations responding to Citizens
United, Move to Amend and Free Speech for People, take a different
approach. As a preliminary matter, both organizations agree, as do I, that the
Supreme Court in Buckley v. Valeo wrongly
interpreted the First Amendment to protect wealthy individuals spending
unlimited sums to influence the outcome of election campaigns so long as the
content of their ads did not specifically advocate the election or defeat of a
candidate. Move to Amend would include a Buckley
reversal in the same amendment as a Citizens
United reversal; Free Speech for People supports separate amendments.
That aside, Move to Amend would
deny any rights to corporations of any kind except that it would preserve
freedom of press. Free Speech for People would also deny any rights to corporations
of any kind, but would specify that nothing contained in its amendment “shall
be construed to limit the people’s right to freedom of speech, freedom of
press, free exercise of religion, and such other rights of the people, which
are inalienable. “
It seems to me that the Move to
Amend proposal goes too far. Surely it would be a mistake to deny free exercise
of religion to religious corporations and even if it were not, any such
position would make the amendment a political impossibility. Less serious, but
quite difficult to defend would be the denial of right to counsel to
corporations, the right to a fair trial, the right to be protected against
unreasonable searches and seizures, and the right not to have property taken
without just compensation. From a political perspective, I do not see how it
helps to include the divestment of these rights in reaction to a decision which
undermined our democracy. People do not like Citizens United. Do they have similar views on these other issues?
Free Speech for People is less
vulnerable to these criticisms. Unlike Move to Amend, its proposal specifically
states that it is not intended to interfere with rights of the people. (By
mentioning press rights, Move to Amend might be read not to include religious
rights). I do not see, however, how it helps Free Speech for People to claim that rights
are inalienable. Many constitutional rights can be waived in certain
circumstances including First Amendment rights. Perhaps the idea is that those
rights cannot be waived or taken away altogether though I think of voting as a
right and that right can be taken away altogether in some circumstances. I
leave that aside because I doubt that rights would be restricted because of the
Free Speech for People argues
that natural persons can invoke their religious rights or free speech rights or
fourth amendment rights. If natural persons were left alone to invoke their
rights, freedom would be restricted because natural persons might not want to
incur the financial and personal costs of litigation. But Free Speech for
People (and perhaps Move to Amend would also – which would greatly strengthen
their position) argues that corporations can assert the rights of others if they
meet legal standing requirements. So, the NAACP had standing to assert the
rights of its members in preventing disclosure of their names. If standing
rules are capacious, the rights of natural persons (think of priests,
journalists, professors, workers in incorporated unions , etc.) would be
unaffected by the amendment.
I wonder though about the
rights of religious corporations to raise objections to some Establishment
Clause violations. The Establishment Clause appears to be a structural
amendment, not easily characterized as protecting the rights of specific
natural persons except in associational cases. I also wonder about corporate
ability to challenge state and local violations of the commerce clause. I do
not think such violations involve the rights of natural persons. Perhaps the
argument is that the amendment has no effect on the latter cases because they
did not involve corporate rights in the first place.
What about protections like the
right to counsel? I assume corporations can raise the rights of their
shareholders. If corporations have standing to raise the rights of their
shareholders or their employees, why would they not have the right to raise the
rights of their potential listeners and claim that their potential listeners
have a right to hear their commercial and political speech?
Of course, it would be perverse
in light of the Citizens United impetus
for passing the Free Speech for People Amendment to interpret it to protect corporate
free speech on behalf of listeners. Cynical as I may be, I would not expect
courts to so interpret the amendment in such a way, but I do worry about the
limitations that might be placed on corporate standing to protect other rights.
Having said all this, I do
think the Free Speech for People Amendment is worth supporting. Even if it were
interpreted to deny corporate protections against takings or right to counsel,
I do not believe any level of government would actually deny such rights to
corporations. Although I think the amendment raises many unnecessary issues, it,
together with a Buckley reversal
amendment, may be our best hope to revitalize our democracy.
One would reasonably infer from the following article in today’s Los Angeles Times that the findings of the study are novel or unusual, yet as Michael Marmot writes, “British statistics have shown, for as long as one has cared to look, that health follows a social gradient: the higher the social position, the better the health. I became aware of this gradient only when I started to analyze data from the first Whitehall study of British civil servants [Marmot, M.G., G. Rose, M. Shipley, and P.J.S. Hamilton, ‘Employment grade and coronary heart disease in British civil servants,’ Journal of Epidemiology and Community Health (1978) 32: 244-249].” See: Michael Marmot and Richard G. Wilkinson, eds., Social Determinants of Health (New York: Oxford University Press, 2nd ed., 2006). For a brief introduction to the Whitehall study and further discussion, please see Gopal Sreenivasan’s entry, “Justice, Inequality, and Health,” in the Stanford Encyclopedia of Philosophy. In short: “The empirical literature’s most significant and powerful reported finding can actually be replicated with any of the listed candidate social determinants of health (income, education, occupational rank, social class): This is the existence, within a given society, of a social gradient in health.”
“Stressful at the Top? Not Really, Study Finds”
Harvard researchers find leaders in business, politics, and the military report lower anxiety levels than others. The key to their serenity is control.
By Melissa Healy (September 25, 2012)
“Management consultants say 60% of senior executives experience high stress and anxiety on a regular basis, and a thriving industry of motivational speakers teaches business leaders how to manage their corrosive burden of stress. But just how uneasy lies the head that wears the crown? Not so uneasy, it turns out.
A new study reveals that those who sit atop the nation’s political, military, business and nonprofit organizations are actually pretty chill. Compared with people of similar age, gender and ethnicity who haven’t made it to the top, leaders pronounced themselves less stressed and anxious. And their levels of cortisol, a hormone that circulates at high levels in the chronically stressed, told the same story. The source of the leaders' relative serenity was pretty simple: control.
Compared with workers who toil in lower echelons of the American economy, the leaders studied by a group of Harvard University researchers enjoyed control over their schedules, their daily living circumstances, their financial security, their enterprises and their lives.
‘Leaders possess a particular psychological resource — a sense of control — that may buffer against stress,’ the research team reported Monday in Proceedings of the National Academies of Sciences. [….]
‘It’s clear that having a sense of control is protective against stress,’ said Nichole Lighthall, who researches stress and its effects at Duke University and was not involved in the new study. ‘People in a company at all levels may be affected by the market and its unpredictability,’ she said. But while rank-and-file employees may worry about being laid off, chief executives can pretty much rest assured that ‘they’ll keep their position in society, their superiority, their lifestyle and their income’ even if the organization over which they preside suffers, she said.
To gather leaders for study, the Harvard team took advantage of the university’s array of programs for mid-career and senior professionals. Such students — some at Harvard for just a week, others for as long as a year or two — are generally rising stars being groomed for promotion within their organizations. Members of Harvard’s Decision Science Laboratory invited them to take part in their studies.
Social psychologist Gary Sherman and his colleagues recruited 148 people who managed others in military, government, business and nonprofit organizations. Each participant was asked to complete an inventory of psychological traits and a questionnairethat captures the extent to which a person feels a sense of power in general and in his relationships with others. Participants also were asked to describe their jobs and count the workers below them in the hierarchy. Finally, the study members provided a sample of their saliva so the researchers could measure their level of cortisol.
For comparison, the study drew 65 people from the general community who did not exercise management control over others. Researcher had these participants complete the same inventories and measured their cortisol. They ensured that both groups — leaders and non-leaders — were identical in terms of their age, gender and ethnic composition. The results showed that compared to non-leaders, leaders’ sense of control and propensity toward anxiety were lower. So were their cortisol levels, providing physiological proof that they were less stressed. When the researchers focused on differences within a group of 75 leaders, they found that the larger the pool of workers an individual managed, the lower he or she scored on measures of stress and anxiety.
Samuel Barondes, director of UC San Francisco’s Center for Neurobiology and Psychiatry, said the study didn’t reveal whether leaders became less stressed as they climbed toward the top or whether they were less prone to stress in the first place, facilitating their ascent. He suspects it’s a combination of both, but either way, ‘once you’ve made it and are not at the whim of capricious meanies above you in the hierarchy, you are less stressed,’ said Barondes, author of Making Sense of People: Decoding the Mysteries of Personality.” [….]
So we await another study reaffirming what we already know with regard to the converse case: those at the bottom of the occupational hierarchy (leaving aside the unemployed) suffer more stress (and the cumulative deleterious health effects linked to same) than those above them in occupational rank (or in any of the other social determinants: education, income, and social class, for example).
Neither candidate has called for arresting and prosecuting
high ranking people on Wall Street for the subprime mortgage catastrophe.
Neither candidate is interested in holding anyone in the
Bush administration accountable for the torture committed by US personnel
against prisoners in Guantanamo or in Iraq or Afghanistan.
Neither candidate is interested in stopping the use of
drones to assassinate people in Afghanistan, Pakistan, Yemen or Somalia.
Neither candidate is against warrantless surveillance,
indefinite detention, or racial profiling in fighting “terrorism.”
Neither candidate is interested in fighting for a living
wage. In fact neither are really
committed beyond lip service to raising the minimum wage of $7.25 an hour – which, if it kept pace with inflation since
the 1960s should be about $10 an hour.
Neither candidate was interested in arresting Osama bin
Laden and having him tried in court.
Neither candidate will declare they refuse to bomb Iran.
Neither candidate is refusing to take huge campaign contributions
from people and organizations.
Neither candidate proposes any significant specific steps to
reverse global warming.
Neither candidate is talking about the over 2 million people
in jails and prisons in the US.
Neither candidate proposes to create public jobs so everyone
who wants to work can.
Neither candidate opposes the nuclear power industry. In fact both support expansion.
famously maintained that corporations could spend unlimited amounts of money to
influence the outcome of election campaigns. 82% of the American people rightly
reject this decision. Grassroots organizations like Free Speech for People and
Move to Amend are pressing for the adoption of different variations of a
constitutional amendment recognizing that human beings, not corporations
deserve constitutional rights.
I oppose the Citizens
United opinion; I believe that artificial corporations are
institutionalized collections of contracts, not human beings, and I believe
that the constitutional amendments proposed by these organizations are worth
supporting, but I do not believe that these amendments are the best response to
In my view, the best response to Citizens United is to amend the Constitution to assure that business corporations have no free speech rights, nor should the Constitution
respect any claim that regulating the speech of business corporations interferes
with the rights of their potential listeners. I do not believe, however, that it
follows from the fact that corporations are not human beings that corporations
should have no rights. Yes, the artificial character of corporations means, for
example, that they should have no rights against self-incrimination. But it
strikes me as obvious that even business corporations should have a right to
Business corporations should have no free speech rights, but
business corporations should have free
press rights. So if the New York Times Company editorializes in favor of a
candidate in its newspaper, the editorial should be protected under the press
clause, but, if it or any other business corporation buys time in another newspaper
or media outlet to influence the outcome of an election or to advertise a
non-media product, the speech should not be protected.
Similarly, a proper response to the broad sweep of the Citizens United opinion should not
punish non-profit corporations for the “sins” of business corporations.
Business corporations enter the market and election campaigns not as citizens,
but as institutions in pursuit of profit. When business corporations advertise
cigarettes, they do so without regard to the health of their potential
customers; when they promote candidates, they do so exclusively because they
think it will help their bottom line using money acquired without regard to the
corporation’s ideology. Contrast a business corporation with a non-profit
corporation like Wisconsin Right to Life or
Move On (if it were organized in a
corporate form). Organizations such as these spend money not for profit, but as
an association of citizens. They are markedly different from business
corporations and deserve free speech protection. Of course, this opens a
potential loophole. What if a business corporation gives money to a non-profit
corporation that then spends money on advertisements? The legal answer has been
that if a non-profit accepts money from a business corporation, it becomes a
business corporation for purposes of election law.
There is an irony to this line of analysis. In my view,
Citizens United should have won its case, but not for the reasons the Supreme
Court brazenly reached out to give. Citizens United produced a documentary
about Hilary Clinton. It was odious, but worthy of constitutional protection as
an exercise of the free press right. Citizens United advertised its
documentary. Such advertisements have long been considered part of the press
function. The record of campaign finance abuses has referred to the corruption
arising from the blizzard of political advertisements for and behalf of
candidates, not to documentaries or advertisements on behalf of them.
Whatever the outcome of Citizens
United the opinion stands for a corpocracy instead of a democracy.
Nonetheless, I think it an overreaction to strip all corporations of all
rights. In fairness, neither Move to Amend nor Free Speech for People quite does
this, but I think their proposals go too far in this direction and are not ideal. In my next post, I will
explain why I think that, but I will also explain why their proposals are
worthy of support.
There was a lot of God talk at the Democratic convention and it is hard not to notice the difference between the social gospel religion of the Democratic Party and the evangelical thrust of the Republican Party. I think the Democrats are right to avoid identity with liberal Catholicism as such (this gives to much of an opening for the conservative hierarchy to speak out), but this op ed in the New York Times is well worth reading. See here.
Last Tuesday, Mike Dorf argued (here)
against the claim put forward by Paul Krugman (here)
and many others that the Republicans deliberately undermined Obama’s efforts to
salvage the economy in order to help their own reelection chances. Dorf contends
that some Republicans might fall into this category, but most of them actually
believed (albeit wrongly) that their actions were in the public interest. Dorf
argues that it is entirely conceivable that Republicans think that Keynesian
stimuli are not part of a long term solution and that Hayek has a better
perspective on what is best for the economy overall. Dorf’s best argument is
that many in Europe believe that austerity programs are the best way to react
to economic distress and they are not motivated by anti-Obama politics, nor is
there much evidence to believe they are not sincere in embracing their
In support of Dorf’s view, it is a lot easier to believe
that putting money in the hands of the wealthy as opposed to the poor or middle
class creates more jobs or that hiring more police, firefighters, and teachers
is not in the public interest if your political future demands that you act as
if these beliefs are true. The salient political fact is this: if the Republicans
had not exercised power in the Congress, well over a million more Americans
would be employed today.
Why haven’t the Democrats made more of this? Krugman says it
would sound like whining. I believe that one of the weaknesses of the very
strong Democratic convention was that it did not emphasize enough the
importance of bringing as much Democratic strength to the Congress as possible.
As I listened to one of the speakers at the Republican National Convention state that Republicans stand for the Constitution, I immediately thought of the Court's undermining of Fourth and Fifth Amendment rights. There are many horror tales, but still one of the worst is contained in Schneckloth v. Bustamonte (1973). There the Court ruled that police did not have to tell a citizen that he or she had a right not to be searched before securing consent to a search. Astonishingly, the Court said that if officers had to tell a citizen of the right to refuse consent, serious doubt would be created "whether consent searches could continue to be conducted." In other words, if citizens knew their rights to refuse consent, they would do so. Better to hide this right from the citizens, let law enforcement conduct searches that were really the product of coercion, and then pretend that they were voluntary all along.
According to the Kamisar casebook, students often wonder why suspects carrying drugs readily consent to searches. There are many possible answers: (1) The suspect did not know of a right to refuse; (2) The story that the suspect consented is invented; (3) The suspect is a moron. I would not guess that criminal suspects as a group are the brightest group in the population, but I would think that explanations 1 and 2 overwhelmingly outnumber explanation 3, and the Court knows it. So what we have is a police state substituting for the Fourth Amendment and a Court that is supposed to enforce the Fourth Amendment deciding that it would be too costly if citizens knew their rights.
Meanwhile, I am told by Tracey Maclin that New Jersey requires police to obtain written permission before launching consent searches. Somehow, against all odds, the Garden State is still standing.
Here is a terrific assembly of comments (from the awkward to the moronic) from Mitt Romney many of them sidesplitting. Be sure to scroll down to number 1. The link to Salon appears on Martha Fineman's Facebook page.