Outlawing the New York Times

Before there were bloggers there were essayists and one of the greatest of them was the Sage of Baltimore, H. L. Mencken. My favorite portrait of Mencken is a cartoon of him at his desk, clenching his fists and, according to the caption, trying to think of more things that annoy him. Any annoyance, of course, was a boon: one more thing to write about.

Maybe I’m just more easily annoyed than my choleric fellow Baltimoron, or maybe life has just gotten more vexing in the last 75 years, but I never have to force myself to come up with things that annoy me.

Actually, it’s a struggle to not turn this blog into “Everyone Is Stupid But Me”, but again, as so often, I will give into the temptation.

First, some very background. In 2008, an organization called Citizens United had finished a documentary, Hillary: The Movie, severely criticizing Hillary Clinton, then a US senator and candidate for president, and now they wished to advertise it on cable television. The Federal Communications Commission blocked the ads, saying it would ran afoul of the Bipartisan Campaign Reform Act of 2002 (known the McCain–Feingold Act) to criticize Clinton under those circumstances.

This decision seems basically un-American to me, and I hope it does to you too. The right to criticize any politician is the core of what it means to be free.

The Supreme Court agreed and in 2010 struck down some of the most important provision of McCain–Feingold. Everyone, said the Court, was allowed to participate in public life, and spend their own money to do so, even if they are organized into groups.

One of the immediate consequences of legalizing criticizing (and praising) candidates was, a lot more people did a lot more of it. In the 2012 presidential election, the candidates spent a record $2 billion, but third parties spent another $4 billion.

You’d think, given the power of the presidency and the resulting importance of having a robust discussion about who should be president, that everyone would happy so much money and effort was going into it, but no. There was much wailing and gnashing of teeth on the subject.

As far as I can tell, there are three complaints about campaign spending:

  1. That advertising is somehow not part of “debate”, that it’s inherently dishonest or corrupting. This one I hear a lot, but I don’t really grasp. The ads aren’t necessarily models of prose (or honesty), but in substance, they are almost indistinguishable from the speech of the candidates and their proxies. The goo-goos (as the soi–disant good-government enthusiasts are called) virtually swoon in democratic pride whenever a candidate gives a speech in the parking lot of a suburban Piggly Wiggly. Is it really that different when effectively the same speech is read on TV by a professionally plausible basso profundo, accompanied by stirring music and heart-warming visuals of the candidate being greeted by children and adoring minorities?
  2. That since the money to buy advertising is unequally distributed, it’s somehow unfair. I notice this complaint is made about organizations, especially for-profit corporations, and is rarely leveled against wealthy individuals (especially wealthy individuals who are on the same side as the complainer), and never against non-cash contributions. Ben Affleck or George Clooney giving a speech supporting Obama is at least as valuable as Charles Koch running an ad supporting Romney.  How is it more fair that Ben Affleck is better looking than I am than it is that Charles Koch is richer than I am? If anything, it’s less fair: Koch got rich at least in part by dint of hard work, initiative, and risk-taking, and I could conceivably do the same thing. Nothing I could do would make me look as good-looking as Affleck (with the possible exception of setting Affleck on fire).
  3. That the spending is meant to curry favor with the politician or his allies. This one is faintly plausible, especially when you see organizations donating to both sides. Surprisingly, Congress embraced this explanation to justify passing McCain-Feingold, saying, in effect, we’re too sleazy to be trusted. There are a lot of problems with the theory though. It’s rare that the president can really favor one company: at best, he can help large industries. How many corporate boards are going to approve a big expenditure in the hope that the candidate will actually win, and then honor the implicit bribe, and then do something that will help both that corporation and its competitors — especially given that his opponent might win and punish the corporation for supporting the candidate! I’m not saying it’s impossible, I’m just saying the effect is sufficiently attenuated that the best solution would be to vote for more honest candidates.

For whatever reason some people hate campaign spending and hated the Citizens United decision. And — apparently without being bribed by campaign spending — Congressman Jim McGovern, a Democrat from the 2nd District of Massachusetts, has introduced an amendment called, for no apparent reason, the People’s Rights Amendment, which reads in relevant part:

The words people, person, or citizen as used in this Constitution do not include corporations, limited liability companies or other corporate entities

An intelligent person might, at this moment, be saying, “Huh? I mean, what the… How does that have anything to do with Citizens United?”

Directly, nothing. The decision was based on the First Amendment, which reads (in whole):

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The only apparent effect of this proposed Amendment, were it ever ratified, which it won’t be, would be to make it possible for Congress to prohibit corporations from marching in the streets, something they aren’t famous for doing before Citizens United or since.

Rep. McGovern (no relation to failed presidential candidate George McGovern) was taken in by a bizarre rumor that circulated around the Citizens United decision: that the decision turned on the idea of “corporate personhood”.

Under the law, a corporation is a “person”. It can own property; it can sue and be sued; it can even be charged with crimes. It is not an “individual” or a “natural person”: it cannot vote, get married, or go to jail.

But the decision had nothing to do with personhood. It was a plain-language reading of the Constitution. Congress tried to abridge the freedom of speech; it’s not allowed to do that; the legislation was void. Simple as that.

How exactly an unintuitive but formerly uncontroversial principle, corporate personhood, got wrapped up in many people’s minds with Citizens United, I don’t know. Maybe it was just something that sounded ridiculous; a real life version of the apocryphal story of the politician who said of his opponent, “He’s a shameless extrovert who before his marriage practiced celibacy, his brother is a known homo sapiens, and his sister who was once a notorious thespian.” If you don’t know what the words mean, it sounds bad.

But the thing that really annoys me, far more than McGovern’s being taking in by the personhood hoax, though, is what he’s trying to accomplish. The idea behind the Amendment is people should not be allowed to exercise their rights through the corporations they own.

Does McGovern really believe this? I certainly hope not, I hope he has just not thought through the implication of his proposal.

Consider the following law: The New York Times may not criticize the Republican Party. Any child — or at least any American child — could point out the manifest and manifold injustices of such a law. For one thing, the Times has the right to say anything it wishes; for another, the GOP shouldn’t be elevated above other parties.

Not any more, according to Rep. McGovern. Arthur Sulzberger, who publishes the Times, has the right to say anything he wants, but not using the property of the Times. You and I might be guaranteed equality before the law; McGovern thinks that corporate entities like political parties have no rights, and so the law can treat them however it chooses to.

How about another law: The SEIU (Service Employees International Union) may not organize pickets. Individual workers — real people — can picket but a corporate entity like a union has no inherent right to do anything.

As I said, I doubt that McGovern means for these laws to become Constitutional, he’s just a dumb guy, pandering to his constituency. And I’m almost dead certain this inane proposal will never go anywhere.

But it bothers me that it’s even been proposed. Too bad we cannot amend the Constitution to outlaw stupidity.

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