# 9 Class--Corporate Political Activity as Protected Speech--3-19-12

3-19-12

Lecture # 9: Law & Social Policy: Corporate Political Activity: Social policy, public policy or legal policy?

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JUDITH: When gold talks all other tongues are silent. –Anonymous

MOLLY: Money is the world’s best deodorant—Dorothy Parker

JOSH PORTER: Money doesn’t stink--Vespasian, the Roman emperor to his son who objected to the vulgarity of his father’s proposal to tax the use of urinals in Rome.

LAUREN: Money is like manure. If you spread it around it does a lot of good. But if you pile it up in one place it stinks like hell--Clint Murchison Jr., former owner of the Dallas Cowboys and one of the country’s first billionaires.

JONATHAN RAYMON: He has an ox on his tongue—A proverbial Greek saying, used to describe the words or the silence of a judge or public official who has been bought. An ‘ox’ is a unit of currency, a coin, in ancient Greece.

NICOLE MADDOX: Pecuniae obediunt omnia—money answereth all things. The Holy Bible Ecclesiastes

NATALIE HUMPHREY: Money often costs too much—Ralph Waldo Emerson

1. Reading (student assignment carried over from Lecture # 8)
CHRIS MONCRIEF: Chemerinsky “First Amendment Limits on Tort Liability” pp. 1078-1088, 1090-1091; Section 6.3.1 “Rejection of Application Before Civil War” pp. 503-509.

2. Summary of Class #8: Libel (in 450 Words or Less) 450 words--- 4 minutes

In the first class we examined the Power of the People; the second, the Power of the Judiciary; the third the Power of the Legislature; the fourth the Power of the Executive Branch in the fifth we reviewed social, political and governance themes and issues treated by Tocqueville in his classic work, Democracy in America. The sixth class concerned the Death Penalty and the seventh class considered Race. In the Eight we covered libel. Here’s what we’ve learned about libel:

Libel—Law & Social Policy or Social Policy & Law?

Tocqueville thought the two most important powers in the United States were the power of the judiciary and the power of the press. In the 8th class we saw them both on display.

The purpose of the First Amendment is twofold: to prohibit the state (here the emphasis on ‘state’) from (1) licensing publications (as had been the practice in England) and 2) conducting prosecutions for seditious libel.
Other than these two purposes, we know nothing about intent behind the adoption of the First Amendment or the meaning of the words ‘freedom of speech.’ Consequently, there is no original meaning or original intent for courts to discern and apply in First Amendment cases. There are, however, four general theories that may be used to explain the cases although no single one explains everything. The four theories about the purpose of the First Amendment are to promote or facilitate: 1) self-governance; 2) truth (J.S. Mill); 3) autonomy of persons and 4) tolerance. No one case explains them all.

In the cases we considered we learned that public figures and public officials must prove ‘actual malice’ in order to recover damages for defamation and related theories of recovery such as infliction of emotional distress.

3. Lecture #9: Corporate Political Activity: Social Policy, Public Policy or Legal Policy?

Since the 19th century, corporations have been prohibited from attempting to influence the outcome of elections. Kentucky’s prohibition is ensconced in its constitution. In this class we shall examine the current state of state laws that restrict corporations from attempting to impact elections. We shall discuss the concept of speech as money, corporations as persons and ‘freedom of speech’ in the context of corporate political objectives.

Lecture #9: Corporate Political Activity: Class Plan, Student Assignments
[March 19, 2012]

The business aristocracy seldom lives among the industrial population it manages; it aims not to rule them but to use them. –Tocqueville 648

Assignments for Class #9:

CHRIS MONCRIEF: Chemerinsky “First Amendment Limits on Tort Liability” pp. 1078-1088, 1090-1091; Section 6.3.1 “Rejection of Application Before Civil War” pp. 503-509.

1. PAIGE: Tocqueville, “How An Aristocracy May Emerge from Industry,” Vol. 2, Chapter 20, pp. 645-648.

2. JASMINE: Austin v. Michigan Chamber of Commerce 494 U.S. 652 (1990): corporate wealth can unfairly influence elections [494 U.S. at 660]. REVERSED
in….

3. JACOB: Citizens United v. Federal Election Commission 130 S. Ct. 876
(2010).

4. JOHN BROWN: Kentucky Constitution (1890) Section 151 (Corporation not to use money or other thing of value to influence election).

5. JENN: Chemerinsky, Chapter 11, Section 11.3 “Is Corporate Spending
Protected” pp. 1117-1121; “Spending Money as Political Speech pp.1103-1116. Is money speech? Is spending by a corporation protected political speech? Justice Steven’s dissent in Citizens United v. Federal Election Commission. Criticism of Buckley v. Valeo (1976) holding that spending money is a form of political speech.

1. Tocqueville, “How An Aristocracy May Emerge from Industry,” Vol. 2, Chapter 20, pp. 645-648.
2. Austin v. Michigan Chamber of Commerce 494 U.S. 652 (1990): corporate wealth can unfairly influence elections [494 U.S. at 660]. REVERSED in….
3. Citizens United v. Federal Election Commission 130 S. Ct. 876 (2010).
4. Kentucky Constitution (1890) Section 151 (Corporation not to use money or other thing of value to influence election).
5. Chemerinsky, Chapter 11, Section 11.3 “Is Corporate Spending Protected” pp. 1117-1121; “Spending Money as Political Speech pp.1103-1116.

Generally speaking, I think the industrial aristocracy which we see rising before our eyes is one of the most harsh ever to appear on the earth; but at the same time, it is one of the most restrained and least dangerous. However, this is the direction in which the friends of democracy should constantly fix their gaze; for if ever aristocracy and the permanent inequality of social conditions were to infiltrate the world once again, it is predictable that this is the door by which they would enter. –Tocqueville 648

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Land Shark (1000+ posts) Sat Jan-23-10 11:23 PM
Original message
Citizens United Overrules KY Constitution Outlawing Corporate Influence on Elections



Edited on Sat Jan-23-10 11:35 PM by Land Shark
It is not just federal statutes of recent decades that fall to Citizens United, but state constitutional provisions like the ones in Kentucky below. You can decide for yourself how much of Kentucky's current constitution -- in force for nearly 120 years -- must fall before this single 5-4 vote by the US Supreme Court.

The key provision on Suffrage (I've appended a few on corporations as well) is one prohibiting corporations from "indirectly" or directly "influencing voters." As a penalty for corporate direct or indirect influencing of elections, it provides for revocation of their corporate charter (aka the "corporate death penalty")



The most recent KY Constitution was adopted in 1891, has had 78 amendments sent to voters, but the key provision below, Section 150, has stood unscathed since 1891.

Kentucky Constitution of 1891 (current) SECTION 150



{...} if any corporation shall, directly or indirectly, offer, promise
or give, or shall authorize, directly or indirectly, any person to
offer, promise or give any money or any thing of value to influence
the result of any election in this State, or the vote of any voter
authorized to vote therein, or who shall afterward reimburse or
compensate, in any manner whatever, any person who shall have offered,
promised or given any money or other thing of value to influence the
result of any election or the vote of any such voter, such
corporation, if organized under the laws of this Commonwealth, shall,
on conviction thereof, forfeit its charter and all rights, privileges
and immunities thereunder; and if chartered by another State and doing
business in this State, whether by license, or upon mere sufferance,
such corporation, upon conviction of either of the offenses aforesaid,
shall forfeit all right to carry on any business in this State {...} The
privilege of free suffrage shall be supported by laws regulating
elections, and prohibiting, under adequate penalties, all undue
influence thereon, from power, bribery, tumult or other improper
practices.

Full text at:
http://www.lrc.ky.gov/legresou/constitu/150.htm (adopted in 1891 and
never since amended)

Additional Provisions of Kentucky Constitution Re Corporations



SEC. 190. No corporation in existence at the time of the adoption of
this Constitution shall have the benefit of future legislation without
first filing in the office of the Secretary of State an acceptance of
the provisions of this Constitution.

SEC. 192. No corporation shall engage in business other than that
expressly authorized by its charter, or the law under which it may
have been or hereafter may be organized, nor shall it hold any real
estate, except such as may be proper and necessary for carrying on its
legitimate business, for a longer period than five years, under
penalty of escheat.

SEC. 195. The Commonwealth, in the exercise of the right of eminent
domain, shall have and retain the same powers to take the property and
franchises of incorporated companies for public use which it has and
retains to take the property of individuals, and the exercise of the
police powers of this Commonwealth shall never be abridged, nor so
construed as to permit corporations to conduct their business in such
manner as to infringe upon the equal rights of individuals.

SEC. 205. The General Assembly shall, by general laws, provide for the
revocation or forfeiture of the charters of all corporations guilty of
abuse or misuse of their corporate powers, privileges or franchises,
or whenever said corporations become detrimental to the interest and
welfare of the Commonwealth or its citizens.

See http://www.lrc.state.ky.us/legresou/constitu/intro.htm