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January 21, 2010 07:28 PM UTC

Goodbye corporate finance reform

  • 141 Comments
  • by: Phoenix Rising

( – promoted by Middle of the Road)

POLS UPDATE: More from The Denver Post. Corporations and labor unions can now spend like Drunken Sailors on elections.

Today, the U.S. Supreme Court issued its ruling (PDF) in Citizens United vs. FEC, and it’s a nightmare.

If the analysis I’m seeing is correct, not only did the Court overturn the Federal law restricting contributions, it also overturned State and local laws.  A corporation according to the majority is no different from a real person except that it can’t pull the lever on election day.

From Justice Stevens’ dissent:

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure,and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

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141 thoughts on “Goodbye corporate finance reform”

    1. to pass the SENATE bill (you know, the one that sucks anyway) for HC reform, and now this ruling from the Supreme Court.

      I know its been the case for some time now, but now in particular, Washington is showing its true colors as a corporate sellout shithole.  Politics in this country has nothing to do with people anymore…

  3. 1.  Cold as fuck.

    2.  No first amendment.  However, if our first amendment is going to be interpreted as giving ginormous multinational corporations the right to buy elections, maybe this is no longer a reason against moving to Canada.

        1. When MOR was elected a front-page editor.

          After all, you have been gone for a while.

          Of course, if you don’t like who is running the front page, you can always depart for Free Republic your damned self.

          Wouldn’t upset me a bit.

        2. when all else fails, revert to empty insults on intelligence, appearance, etc.  Way to add to the discourse, MD. Were you the bully in school or did you get bullied so much that you try to get your revenge through blog comments?  I wish you were my doctor.  

        3. THis place was better off without you here.  Sometimes we actually talked about stuff without being Jr. High School little dicks to each other.  Get bent.

      1. “…the corporations sit there in their, in in their corporation buildings and, and and see that’s, they’re all corporationy, and they make money.” – Team America

              1. Have you seen the movie?  It has nothing to do with homophobia, and you should know better about me.  I might be the only pro-gay marriage R you know.

                In the movie it’s Film Actors Guild.

                1. Those poor guys, all they did was call a bunch of people they disagreed with “fag,” but it’s OK since how could they possibly have known “film actors guild” had that abbreviation?

                  Um, no. Stone and Parker are scumbags. They’re odious. I don’t care if it’s cool to like them.

                    2. I don’t get that from those guys.  I think they go after everyone.  

                      Where’s your quote from?

                    3. and they’re especially vicious with gays. Calling Tim Robbins a fag doesn’t hurt Tim Robbins, but it hurts a shy gay kid in Wyoming who has a hard enough time with peers already.

                      The quote is a slight modification of this:

                      http://www.huffingtonpost.com/…

      2. you think ExxonMobil, United Airlines, General Electric, or Blackwater USA (just to pick a few out of a hat) represent your personal interests more than a union would?  Really really?   I just can’t buy that.

        At least if you were a member of a union you could actually vote on the leadership.  

          3. On the balance, unions have your back more than corps do.  Sure, you can find some union crazies to pick on.  But I just can’t take that response at face value.  Maybe if you show at the next Pols meetup you’ll make me change my mind. 🙂

            fwiw, a group of students and two different unions tried to unionize the grad student workforce at my school when I was in grad school and I fought them tooth and nail (and we won), so I’m not exactly pro-union.  But still, I’m definitely going to trust a union over a major corporation

          4. I can sympathize with the libertarian “leave people alone, and they’ll figure it out” point of view. I don’t agree with it, but I understand where it comes from.

            But how the hell does a human being feel proud of saying, “EXXON, FUCK YEAH!”? I can’t even begin to make sense of that.

          1. represent me, so to the extent that we can manage to keep large sums of money coming from “special interests” not evenly distributed to represent all points of view from playing tug-of-war with the electorate, the better our democracy will be.

            Unfortunately, it’s not easy to draft laws that accomplish it in a well-balanced way, and, regardless of the merits of this particular Supreme Court decision, there is a real challenge in how to both protect unfettered freedom of political speech, and simultaneously prevent those with access to the biggest megaphones from speaking more loudly and effectively drowning out other voices.

      1. It hardly needs to be reiterated that this SCOTUS decision is horrible for America, and that finding a way to institute profound campaign finance reform would be very much in our collective interests as a nation.

        My question is (and it is only a question; I really don’t know the answer), what other effects would such a change in the legal status of corporations have? I used to know the justifications for that particular legal fiction. In any case, it has some. So let’s examine all of the repurcussions (and what precise changes in legal status of corporations are possible and desirable, all things considered), and see if this is a viable route to take. If so, we should turn its advocacy into a social movement.

        1. I answered your last answer to me about incremental change and all that.  It’s too long for anyone else to bother with but I hope you’ll go back to the thread and read it. It’s just for you. I read all of your long drawn out stuff so I figure you owe me:)

    2. and considering the language of the first amendment, I’m not sure that changing the legal status of corporations would affect this holding after all. The holding, at least as it appears to me, doesn’t seem to be based on the legal fiction that corporations are individuals, but rather on the fact that the First Amendment language, “congress shall make no laws…abridging the freedom of speech,” does not require the speech to be made by individuals.

      And, if that’s the case, then it’s a holding that will be that much harder for Congress to legislate away (even if it had a will to do so).

        1. BoulderRepublican agrees with a liberal when he rationalizes a conservative opinion!

          I’ll bet if I say only the propertied white males should vote, you’ll find me awesome too! I can’t wait!

          Good thing you’re so open-minded all the time. If I ever saw a conservative on this site supporting a liberal opinion, I don’t know if I could find it in my heart to agree with him. Cheers to you, good honorable man.

          1. I’m “rationalizing” the Supreme Court holding only in the sense of trying to discern its formal legal rationale (which is not necessarily the same as its actual rationale, and is certainly not the same as voicing agreement with either one). That’s just legal analysis, not a statement of my personal opinion. See my response to BoulderRepublican.

        2. There’s are differences between identifying the rationale of a Supreme Court decision, agreeing with it, and thinking that it’s good policy. Those are three distinct things. People who want to understand and affect our legal landscape need to understand each of them.

          I’ve already made clear that I think this is awful public policy. I’m agnostic concerning the legal reasoning: It’s neither indefensible nor inevitable. But by understanding what the reasoning is, you identify the range of discretion for action within it, which is how you then affect public policy for the better.

          As for your suggestion that I’m generally irrational, have at it. I prefer to let our respective arguments speak for themselves.

    1. As long as we continue to elect corporate backed politicians, we are responsible for the mess it creates.  Who is the last person you voted for that was not supported in any way by a corporation?

  6. The most severe blow to citizen control of corporations was the 1886 Supreme Court case of Santa Clara County v. Southern Pacific Railroad.  A case about local taxation powers became the precedent by which corporations became “persons” under the U.S. Constitution, entitled to all the rights of any other person, even though the Constitution never mentions corporations.  The 14th Amendment, enacted to protect rights of freed slaves, has since been used to strike down hundreds of local, state and federal laws enacted to protect people from corporate harm.

    I am ready to join the constitutional amendment battle.  Corporations are not people.  They can’t die in our wars, or serve time in our jails: Corporations are not people.

    http://www.monttla.com/MT/inde…

    1. to find out what were the circumstances surrounding the beginnings of this horrrible legal concept.  The disproportionate amount of power corporations wield in our society should be disturbing to all Americans, and no week has demonstrated this more clearly than this one.  

      Washington and the MSM always lead us to believe its a D or R thing.  Its not.  Pull back the curtain and its the silent, steady and pervasive influence of corporations upon those who make decisions that effect every facet of our lives.  

      1. .

        is that the curtain has been completely removed.  Within two election cycles our current one party system (the corporate-owned Demoblican Party) will be passe.  

        I plan to switch parties yet again after the election in November, this time to Microsoft or COSCO.  Ain’t it a thing of beauty ? A Chinese Communist corporation running the best-funded candidates in hundreds of US Congressional races.

        .  

    2. Dissenting Supreme Court Justice Hugo Black wrote (in Connecticut General Life Insurance Company v. Johnson, Treasurer of California in 1938:

      Yet, of the cases in this Court in which the Fourteenth Amendment was applied during the first fifty years after its adoption, less than one-half of 1 per cent invoked it in protection of the negro race, and more than 50 per cent asked that its benefits be extended to corporations.

      The dissent is worth reading in full.

      If you find judicial activism to be an issue worth fighting against, then the perversions that corporately allied justices have wrought upon this country should cause your blood to boil.

  9. From the NYT:

    The 5-to-4 decision was a doctrinal earthquake but also a political and practical one. Specialists in campaign finance law said they expected the decision, which also applies to labor unions and other organizations, to reshape the way elections are conducted.

    “If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, which included the four members of its conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

    Justice John Paul Stevens read a long dissent from the bench. He said the majority had committed a grave error in treating corporate speech the same as that of human beings. His decision was joined by the other three members of the court’s liberal wing.

    Senator Mitch McConnell, the Republican leader and a longtime opponent of broader campaign-finance restrictions, praised the Court’s decision. In a statement Thursday he called it “an important step in the direction of restoring the First Amendment rights of these groups by ruling that the Constitution protects their right to express themselves about political candidates and issues up until Election Day.”

    “By previously denying this right, the government was picking winners and losers,” he said.

    1. Only about 2000 corporations actually have political action committees which allow them to make donations, just indirectly.

      Given the disclosure laws that remain in place, only corporations that feel that they can’t make enough contributions through PACs and direct contributions by key employees will feel much pressure to make independent expenditures beyond current contribution limits.

      Corporations that didn’t even bother to make PAC donations before seem unlikely to me to set up paperwork for reporting independent expenditures which is only marginally less burdensome than establishing a PAC, and which means that somebody has to actual develop their own parallel political campaign that helps the desired candidate without coordinating with that candidate.

      Realistically, this suggests to me that considerably fewer than 2,000 corporations will use the freedom that Citizens United have given them.  So, while the change may matter for a few hundred corporations in some high profile races, I don’t expect the deluge of campaign spending that some people anticipate from this ruling.

      There may be some shifts in spending on independent expenditures from senior executives of businesses to the businesses themselves, particularly in companies that have PACs in place anyway, but because campaign finance laws have always been so porous with loopholes, I don’t expect a big overall change in campaign spending.  The number of cases where would be contributors have lots of corporate level spending capacity, but little individual level spending capacity for political contributions is pretty modest.

      Also, political contributions from the corporate treasury still don’t qualify for a tax deduction the way that charitable contributions and almost everything else that a corporation spends money upon does.  We may see a new flurry of tax disputes over whether mixed purpose ads that promote a product and favor a political candidate still qualify for a tax deduction as a business advertising expense.

      1. Also, political contributions from the corporate treasury still don’t qualify for a tax deduction the way that charitable contributions and almost everything else that a corporation spends money upon does.

        Interesting. Can you tell me more about the basis for that statement? If any expenditure is not a “legitimate” business expense–that is, benefiting the corporation–then would it not be a violation of the fiduciary duty of the officers toward the stockholders? And if it is a “legitimate” expense, benefiting the corporation, why is it not deductible as an expense? What is the law on these things?

        1. (e) Denial of deduction for certain lobbying and political expenditures

             (1)   In general

             No deduction shall be allowed under subsection (a) for any amount paid or incurred in connection with –

                 (A)   influencing legislation,

                 (B)   participation in, or intervention in, any political campaign on behalf of (or in opposition to) any candidate for public office,

                 (C)   any attempt to influence the general public, or segments thereof, with respect to elections, legislative matters, or referendums, or

                 (D)   any direct communication with a covered executive branch official in an attempt to influence the official actions or positions of such official.

  10. As much as I hate this decision, it may be beyond the “corporate personhood” issue to resolve.

    A corporation is a piece of paper formalizing an assembly of people to further a cause (’cause’ being a very loose term here…).  If individuals are not limited in their independent expenditures (freedom of speech and press), then neither can corporations as they are just groups of people.

    It may be that a public campaign finance amendment is the only way around our current mess, and in the end, a very careful balance would need to be struck to close loopholes while retaining vital functions of the right of the press.  (E.g. how do you block a “backgrounder” movie like Hillary while still allowing a piece on the corruption of a politician?)

    2. I’m not an expert on constitutional law, but I believe that the interpretation of the 14th amendment is that it applies to groups of people and organizations–croporations, yes, but unions as well.

      You could make a constitutional amendment that would clarify the language, but the precedent is pretty well set.

  11. But what are the other options? A constitutional amendment would be required to make corporations into non-persons, and it seems unlikely that this will happen.

    Could public campaign financing still solve this? It wouldn’t restrict any group’s political speech more than any other–it gives every “person” whether corporate or individual the right to pay their taxes to fund campaigns.  

  12. for a press conference to rally supporters against actual judicial activism that truly is destroying our country.

    I would like to hear the opinions of all candidates on this question.

    (If only the Andrew Romanoff campaign had better timing. If only puppies didn’t chew on DVDs. If only … )

    Could this be an issue to bring liberals and Tea Partiers to a common table?

    1. But who has the finesse to mediate that discussion? Al Franken would be a great choice (don’t laugh until you’ve YouTubed the video of him calming an angry mob outside one of his events) but I doubt he’d be interested. Alan Grayson has the guts, but he’s too controversial for the tea partiers.

      Is there a leader on the tea party side who’s shown the ability to talk and reach consensus with people who hold opposing views?

  14. are mostly clear, as I explain at length at my blog, but there is one gray area in my mind.

    It isn’t clear to me how Citizen’s United impacts corporation contributions to political parties.  Corporations and unions can make independent expenditures in partisan races subject only to disclosure requirements, that is clear.  However, the ban on direct contributions by corporations and unions to candidates for the campaign funds they control seems to have been upheld on the theory that this creates an appearance of corruption.

    But, are political party contributions more like independent expenditures or more like candidate expenditures?

    SCOTUS isn’t at fault for not clarifying this issue, because it wasn’t implicated by the facts in the case before it.  But, it is one with a fair amount of practical importance.  I assume that until party treasurers hear otherwise, that they will take the safe path and assume that the ban on contributions to political parties by corporations and unions remains in force.

    1. I believe given the current state law on party/candidate co-ordination, limits to parties probably do still apply.  But that’s just a layman’s opinion.

      I agree with your blog post as well; given the current state of campaign finance law, removing the limits and requiring disclosure (and that means disclosing individual names behind corporate donations) is probably the only Court-approved way to go – at least the candidate gets more control over the message.  More disclosure laws on independent expenditures, too.

      Sigh.

  15. …according to NRO, the ruling also includes Labor Unions

    overall, this ruling basically makes 527s useless – now rich individuals and labor unions will just register a corporation, throw money in the account, do their

    electioneering and coordinate at the same time – pretty much anyone can start a corporation

    if I’m reading this right, this basically is the beginning of a 527 era, but with legal coordination  

    1. except when its not.  

      When Roberts and Alito paid homage to restraint and precedent, were they

      1) profoundly ignorant in the role of the SCOTUS? or

      2) lying through their teeth?

    2. The difference between a union and a for-profit corporation is the service it provides.  For-profit corps exist to make money for their shareholders in the process of producing a product or providing a service.  A labor union acts more as a non-profit, serving a cause (representing workers).

      As to the rest of your comment, pretty much right.

    4. In order to run for say, the Senate, the Constitution requires only that one be a person, at least thirty years of age, and a resident of the state you wish to represent.  Senator Pfizer?  Representative Goldman (Sachs, that is)?

      Seriously, the fiction that corporations are persons arose to get around legal technicalities.  Only people could sue or be sued, only people could enter into contracts.  If you wanted to sue a business and the business was a partnership, you sued the partners.  So when the doctrine of limited liability arose (that is, owners of corporations are not liable for the debts of the corporation), the courts had to start letting corporations sue and be sued, etc.  Hence, the fiction that a corporation is a “person.”

      To get from there to the point where corporations have the same constitutional rights as actual people is just mind boggling.  And seriously, if its unconstitutional to interfere with the speech of corporations because of their personhood, how is it possible to deny them the vote, or the right to run for office?  Not that I actually think a courts goign to say that anytime soon, but it points out the absurdity of what SCOTUS has done (and has been doing incrementally for over a century).

  17. 1. Independent group expenditures are worse for our political system than candidate expenditures because they face fewer constraints. I think we need to remove the restrictions on contributions to candidates as that will move a lot of the money back to the candidates.

    2. There are some advantages to a candidate being funded by 15 large checks instead of several hundred thousand small ones. First, it drastically reduces the time they have to spend fundraising. Second, the people/companies they owe are a smaller number and very visible.

    3. Disclosure of funding is pretty good – but we need to improve it so that larger donations are disclosed within 24 hours if above one value and within a week for medium amounts.

    4. We need to require detailed disclosure of the governing body and funding sources for any group that does anything political. No more hiding behind “we’re a public interest group.”

    5. I don’t see how public funding of elections will do squat to ameliorate this – you would still have the 3rd party efforts.

    2. spending on election campaigns has diminishing marginal utility.

      One has to spend a certain amount of money to be able to mount a “viable campaign” that gets your name out and a few of your basis issues.

      But, once you spend a certain number of dollars per voter, the marginal benefits of additional campaign spending can be pretty low.  Once you reach a certain point, spending is more meaningful as a proxy for overall grass roots support than as actual resources that allows a candidate to buy more campaign goods and services.

      The idea of public funding is to get every viable candidate fairly close to the viability threshold.

      Some public funding approachs also try to limit pubilc expense by having “in kind” advertising space (be it a publicly funded voter guide or a certain number of minutes of TV time) available, rather than simply dishing out cash.

  18. No time to slog through everything, so apologies if someone’s already made this point.

    The notion of expenditure as an expression of free speech is so obviously Orwellian that I can’t believe anyone who truly believes in freedom buys it. It’s the purest example of how everyone is equal, but some (corporations and wealthy individuals) are more equal than others.

    2. When you are pulled over by your local police officer, slap a benjamin in his palm and say

      “I’m just talkin’ Officer.”

      (Practice this in front of a mirror until you can say it with a straight face.)

    3. is to look squarely at the problem, that money buys elected officials – whether it’s corporate money or a wealthy person “buying” a safe seat in Congress.  Money is power, and as long as the divide between rich and poor continues to increase, so will the inequities.

  19. This is bad.  This is beyond bad- this is horrible!  We, as a democracy, are finished!  

    I feared this day.  Our destruction from within is now complete.  We are toast!  

    1. This is, basically, no different from our current system

      where a labor union or corporation could start a 527 and spend without limits

      Actually – this is much better considering that the transperancy is probably going to be stronger since the money trails will have to be disclosed more clearly, from what I gather in the decision

        1. From what I can tell, Hasan believes all regulations are evil, and everyone will do fine anyway since they have to report everything.

          The fact that reporting is a result of regulation (and wouldn’t happen otherwise) just doesn’t fit the narrative. Hence it’s safe to ignore. In fact we might as well repeal the reporting requirement, since corporations are already doing it anyway.

  20. Let me remind you:

    We spent a fortune to elect Barack Obama – $60.7 million to be exact – and we’re proud of it.

    –Andy Stern, SEUI

    Seriously?

    1. It’s piddling to many corporations. They say Exxon made $450 billion in profit in a year, and that it would only take 2% of this profit to outspend all other contributors combined.

      Find me a union with $1 billion to throw around on politics, and you might be able to say unions will be competitive with corporations.  

    2. be able to devise a well-crafted piece of campaign finance reform should be bothered by this holding. That SEUI contributed $60.7 million to Obama’s campaign is completely irrelevant. And if I were a Republican who supported campaign finance reform (as some do, most notably John McCain), I would respond to a Democrat who cited a major corporate donor’s contribution to the Bush campaign as some kind of scathing rejoinder to my position in exactly the same way.

      There are two major fallacies in what you were trying to do here:

      1) It’s possible to live in the world as it is, even while trying to make it better, and

      2) To suggest that anyone with any political position is responsible for, or condones, or is implicated in, every action done by any individual or organization directly or indirectly associated with their position is just another one of those shallow partisan “gotchyas!” that people truck out when they can’t make a meaningful argument about the issues.

      So, yes, this decision upsets me, despite the fact that I’m glad that SEUI gave $60.7 million to Obama’s campaign (just as people who prefer peace don’t necessarily advocate unilateral disarmament), and despite the fact that being a Democrat does not imply an automatic endorsement of SEUI’s having given 60.7 million to Obama’s campaign (though, in my case, I do endorse it).

      1. Although Cindy McCain is suddenly awesome (and Meghan McCain has been for a while).

        But John McCain is the shallowest of shits, the one who sticks around even after you’ve tried to flush down the rest.

  21. From Just Kennedy’s opinion.

    This Court now concludes that independent expenditures . . . 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 democracry.

    Waiter?  I’ll have two of what that gentleman is having.

      1. in this democracy, it would be a crisis, and would mean we’d have to get Republicans seated in positions of power to prevent a crisis of legitimacy (see Bush v. Gore).

  22. The Fuck the SCt Act of 2010:  require unanimous vote of the shareholders at an annual meeting for all political expenditures of a for-profit corporation.

    1. This holding can’t be legislated away by changing the legal status of corporations, but there might be some room for legislation regarding the fiduciary responsibility of corporations to shareholders when spending corporate assets on “speech.” The problem might arise in crafting legislation, that would pass judicial review, that allows corporations to make decicions on advertising and marketing without a shareholder vote, but requires a shareholder vote for political speech. It’s probably a long-shot in any case, but it would certainly be worth researching. (Anyone know something about this area of law? I don’t.)

      1. 1.  Eliminate one dollar of tax credits for each dollar of corporate political expenditure and/or deny additional deductions (such as bonus depreciation).

        2.  Tax all corporations that make political expenditures as partnerships (or resurrect the personal holding company rules and tax them as PHCs).

        3.  Tax all corporations that make political expenditures the same way as passive foreign investment companies.

        The point of 1. is fairly obvious–political expenditures are already not-deductible, so we have to have a way of multiplying the effect.

        Either of 2. or 3. has the effect of making shareholders feel immediate pain (in that they will bear, directly, the tax costs of their investments making political expenditures).

        1. But there may be difficulties legally defining “political expenditure,” and to do so in a way that would provide a legal justification for discriminatory taxation, especially if the purpose of the law is transparently to curtail corporations’ political speech. As Roberts said in his concurrance in this holding, any law passed by Congress which affects political speech is subject to “strict scrutiny” (a formal standard of review), and, while I’m not certain, I suspect that your suggestions above would not pass that standard of review.

          That doesn’t mean “game over.” It just means that a legitimate reason other than to affect political speech must be found.

          1. “Political expenditure” is already defined in the tax code. Corporations are currently not obligated to report expenditures to 527s, but, under IRC 162(e)(1), trade associations can’t claim deductions for that portion of dues spent on political expenditures, and so corportatons are required to disclose the amount of their dues to trade associations that are used for political expenditures: That is the amount that is currently non-deductible.

            But two problems now arise: 1) Which, if any, portions of the tax code that now use taxes to affect political speech will be held to be unconstitutional in light of this new holding (which overturned the precedent allowing Congress to pass legislation affecting Corporate political speech), and 2) how and to what extent would it  be possible to use the tax code, or the spending power, to affect corporate political speech, in light of this holding.

            1. (1) None.  Deductions are a matter of legislative grace, and are essentially a subsidy.  Citizen’s United does not require government to subsidize a corporation’s free speech.

              (2) Nothing in Citizen’s United (or any other case I am aware of) compels favorable tax treatment for political expenditures, or for entities that engage in political speech.  Thus, it should be permissible to make corporations that engage in political speech pay taxes on the same basis that non-corporations pay taxes.  

              1. But I’d be more convinced if you included counterarguments, as, for good reason, is customary in legal briefs.

                Since deductions are simply the flip side of penalties (they are essentially the same thing, framed differently: In one case, you emphasize who is taxed less, in the other you emphasize who is taxed more), I’m virtually certain that they can be implicated in unconstitutional overreach of legislative authority under certain circumstancs. For instance, if the tax code were rewritten to give all political speech a deduction except political speech that advocated X (whatever X may be), that would certainly not pass judicial review.

                I appreciate your zeal, but a complete analysis, based on actual research, is still required.

                1. If you need “a complete analysis, based on actual research” and are willing to pay my usual hourly rate for such, I will be happy to provide you with a memo.

                  1. No thanks. But you’re freely given knowledge would be more valuable if you applied it to gradually yielding uncertainty, rather than marshalled it in defense of precipitous conclusions. Sincerely, though, I enjoy our exchanges. And I do admire your original suggestion, which led to this exchange.

                2. in posts at Wash Park Prophet (with more of the numerical work) and in diaries here and at Daily Kos (with the core argument only).

                  One of the leading cases imposed a special newspaper tax, another of the leading cases involved special tax treatment for Bibles.

                  Certainly, the tax code doesn’t have to allow deductions in general, but I think that unequal treatment of speech through the tax code based upon content is a difficult case at the very least, especially considering the reasoning of Citizens United that rules out some governmental interests that might otherwise make sense.

                  Probably the best defense of 162(e) would be the notion that business expenses must have a business purpose, and that political activity is too far removed from ordinary day to day business to constitute a business purpose as a matter of legislative judgment that is not wrong beyond a reasonable doubt.  In the same vein, the lack of a tax deduction for certain corporate owned life insurance premiums reflects the idea that whoever owns such insurnce, it is fundamentally a form of private benefit to the people covered rather than being a business expenses.  The business v. personal life distinction is also the foundation of the 50% limitation on meals and entertainment expenses in connection with business activities.  The notion is that meals and entertainment never have a purely business purpose, even if they are legitimately part of the business of serving clients and getting new clients.

          2. The Citizens United opinion suggested that a corruption concern might provide a constitutional basis for a ban on corporate campaign contributions directly to candidates, and I could also see that justification supporting a ban on deductions for lobbying.

            But, if you can deduct an ad for widgets, and you can deduct an ad asking people to contribute to the United Way (as an in kind charitable contribution) and you have a constitutional right to make independent campaign expenditures, and you can show that your campaign expenditures have some business purpose (e.g. you are a cigar bar chain owner and the candidate has promised to end the cigar bar exception to Colorado’s indoor smoking ban), the argument for a different tax treatment of this ad is going to be hard to justify under the constitution.

            1. Held that political expenditures were not ordinary and necessary business expenses eligible for deduction, and rejected a 1st Amendment challenge thus:

              “Petitioners are not being denied a tax deduction because they engage in constitutionally protected activities, but are simply being required to pay for those activities entirely out of their own pockets, as everyone else engaging in similar activities is required to do under the provisions of the Internal Revenue Code. Nondiscriminatory denial of deduction from gross income to sums expended to promote or defeat legislation is plainly not “‘aimed at the suppression of dangerous ideas.'” 357 U.S., at 519. Rather, it appears to us to express a determination by Congress that since purchased publicity can influence the fate of legislation which will affect, directly or indirectly, all in the community, everyone in the community should stand on the same footing as regards its purchase so far as the Treasury of the United States is concerned.”

              1. The last sentence of that opinion (though merely dicta) suggests that SCOTUS does consider how entities are taxed to be constitutionally relevant. And the sentence before it specifies that only nondiscriminatory policies pass muster. There is definitely a challenge involved in drafting legislation whose implicit purpose is to use tax policy to discourage expenditure by corporations on political expression.

                1. was expressly rejected as a basis for overcoming a First Amendment challenge to the campaign finance law in Kennedy’s opinion in Citizens United.

                  This doesn’t overrule Cammarano, I don’t think, as it is just part of the reasoning, but it does suggest that SCOTUS, which was willing to overrule two prior binding precedents in ruling in Citizen’s United would necessarily reject out of hand an effort to revisit this 50 year old precedent as well.

                  SCOTUS overruled a precedent older and better established in Twombley.

    2. …of a labor union for all political expenditures as well.  Now THAT would fix some things in this country.

      P.S.  Either of our proposed restrictions would result in a grand total of $0 in contributions by corporations or unions with any substantial ability to do so.

      1. The governance of corporations is different than that of partnerships and other unincorporated associations.  I see no problem with piggy-backing on that distinction in the case of authorizing political expenditures.

      2. I’d be happy with it. Corporations are the more dangerous “individuals” since they have a shit-ton more money.

        (My wife tells me a “shit-ton” is a unit of measurement, but I’m a little suspicious… Hopefully you get the idea regardless.)

  23. that Dems and Repubs can come together and pass an Amendment eliminating (or significantly limiting) corporate personhood.

    I can’t imagine it wouldn’t have the support to pass.

    A man can dream, can’t he?

  24. …but I could potentially support one that defines personhood.  Oh no wait, that would outlaw abortion.  I mean I could support an amendment that would limit the “entities” protected by the first amendment to actual individuals, and not companies (publicly traded ones anyway) or labor unions.  All in all, I would say they all have things that are FAR more important to them than doing what’s right.  And with that much money at their disposal to influence the national dialog, it doesn’t make sense to give them limitless power to spend.

    I honestly can’t even tell you what case law or provisions in the Constitution you would have to look at to determine whether or not this was the right decision by the court, but it’s definitely a liberal way of thinking to believe they should legislate from the bench because it’s “in our best interests.”

    2. Wait, what? I was gonna go somewhere with that, but it’s too fucked up even for me. If you’re arguing for the “menstruation is murder” amendment currently being proposed, all I can say is that I can’t say anything.

    3. affects public policy (and in that sense is an example of “legislating from the bench”), and almost all Supreme Court cases are selected due to constitutional ambiguities open to diverse interpretations (and in that sense means that they are not simply applying an inevitable legal principle, but rather actively interpreting the law). The Supreme Court is an active participant in the formation of public policy, sometimes to conservative ends and sometimes to liberal ends. The various Justices each has his or her own ideological leanings, and adopts a principle of legal interpretation that is consistent with those ideological leanings, none of those principles being, in reality, a form of direct application without interpretation. No amount of empty rhetoric about the horrors of “legislating from the bench” is ever going to change these facts.

  25. (I think. I haven’t read every post, so forgive me if someone already touched on this). This is terrible for small business. If corporations can spend unlimited amounts to make or break elected officials, what will they ask for in return for their benevolence? Answer: Legislation and regulation that stifle competition and preserve monopoly and oligopoly power. If any group should be terrified by, and up in arms over, this Supreme Court decision, it should be small businesspeople.

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