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A resolution condemning the RNC for arguing against the constitutionality of the Tillman Act of 1907

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    This is pending before Occupy Dallas in General Assembly:

    January 14th, 2012
    For the consideration of Occupy Dallas in General Assembly, a resolution condemning the Republican National Committee for their amicus brief entered in the 4th Circuit Court of Appeals in support of defendants WILLIAM P. DANIELCZYK, JR. and EUGENE R. BIAGI.
    (Available at

    Whereas the RNC argues that

    "The Court in Citizens United has made it clear that corporations may enter the political arena directly through independent expenditures, and/or unlimited contributions to independent-expenditure-only committees. At the same time, corporations are currently prohibited from making limited campaign contributions to political parties and candidate committees. This state of play creates a disparate environment for corporate contributions which actively and artificially disadvantages political parties and campaign committees"

    which would overturn the Tillman Act of 1907 (34 Stat. 864)(January 26, 1907), which bans direct contributions from corporations to candidates and parties:

    I hereby propose that Occupy Dallas in Solidarity with the Progressives at the turn of the previous Century, and with the burgeoning Campaign Finance Reform Movement, that Occupy Wall Street is largely responsible for pumping back to life, and which Occupy Congress will most surely amplify further, declare itself, loudly and proudly, categorically opposed to overturning soon to be 105 year old campaign finance reform laws barring direct contributions to candidates and parties by corporations, and issue an accompanying press release drawing attention to this radical and revolutionary argument by the RNC.

    Furthermore, let this resolution in no way, shape, or form serve as an endorsement of any other political party.

    This amicus brief is a game changer. The RNC is now an open fascist organization.

    Support Occupy Congress/Occupy Wall Street. Support the resistance. Stand with Americans of every stripe, creed, and color in the fight against this naked fascist power grab.

    I don't care if they look like homeless people to you. They're awake. And when good honest average Americans do nothing in face of evil, the Freak Show needs to go on Active Duty. And they have performed marvelously and they have the bumps and bruises to prove it.
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    The Tillman Act of 1907 is in many respects similar to Montana's act that barred corporations from funding campaigns. As you know the Montana Supreme Court (by a 5-2 vote) has defied the United States Supreme Court. It's a difficult one for the 1st Amendment free speech advocates, and indeed ThinkProgress has come out against the Montana Supreme Court's ruling:

    "ThinkProgress has been unequivocal in condemning conservative officials who believe that they have the power to defy Supreme Court decisions they disagree with, or who think that states can simply ignore federal law or the Constitution. We will not abandon this commitment to the rule of law today."

    Montana Justice James Nelson was one of the two that dissented, and although he vehemently disagreed with the SCOTUS Citizen's United ruling, he placed his Contitutional duty to honor that ruling above his own views, which are published in part in ThinkProgress:

    While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the Supreme Court’s decision. And, to be absolutely clear, I do not agree with it. For starters, the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield inordinate power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins; the transition is seamless and overlapping. In my view, Citizens United has turned the First Amendment’s “open marketplace” of ideas into an auction house for Friedmanian corporatists. Freedom of speech is now synonymous with freedom to spend. Speech equals money; money equals democracy. This decidedly was not the view of the constitutional founders, who favored the preeminence of individual interests over those of big business. [...]

    Lastly, I am compelled to say something about corporate “personhood.” While I recognize that this doctrine is firmly entrenched in the law, I find the entire concept offensive. Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.

    I added the bolding.

    Read the entire ThinkProgress article at the above link.
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    I think misbehaving is sort of the point though.
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    El Prezidente,

    I agree. While a justice of the court has a legal obligation to abide by the Supreme Court ruling, the OWS protestors have every right to demonstrate. And they should...the more protests, the more the SCOTUS ruling looks unpopular. And now even some Republicans are having second thoughts as a result of the inter-party attack ads.

    All it takes is one SCOTUS member (most like Kennedy) to shift when the next case comes before their court. The pressure needs to be kept on them.
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    Whoa there.....I think Montana's High Court was well within its rights. 

    Aren't you originally from Montana, Schmidt? 

    SCOTUS needs to clarify. In Citizen's United, the Court held that the government had not proven that "circumvention" justified a compelling state interest in regulating the independent political activities of corporations and their controlling officers (i.e., "anti-circumvention").

    Well, it did in Montana. This forces SCOTUS to act. Lower courts should misbehave when higher courts leave huge question marks hanging over huge articles of law. The Citizen's United decision does not make sense. It is inconsistent with decades of precedence before the Court. And it is not clear how it is to be followed now. Montana's High Court is not so much as ignoring Citizen's United as it has found itself unable to compute and apply its logic. SCOTUS has every ability to take this up for review on appeal to clarify that it seriously does want the country to be run by crony-capitalist thieves. 

    The notion that government should have to prove quid quo pro (sale of vote or official act in exchange for campaign finance contributions) in the individual instant , flies in the face of Art. 4., Sec. 4, Cl. 1: "The United States shall guarantee to every State in this Union a Republican Form of Government." The federal government should only have to point out the obvious existence of disparate impact  related to unequal access to justify compelling state interest in "anti-circumvention" measures pertaining to corporate political activities. Regulating corporate political activities is the same thing as regulating their corporate charters, per rules regarding incorporation. "Guarantee" means leaving nothing out of reason to chance.     

    You cannot blur the line between the state and big finance and still maintain a Republican form of government. There's no constitutional right to incorporate, aside from the right to an equal protection to that right, should it so be given upon the basis of standard merits.  Government should regulate to minimize the moral hazard that the act of incorporation, itself, introduces in the marketplace. 
    While the disparate impact is quite clear, allowing the largest of campaign finance contributors to break the law, rewriting accounting standards to shield the same from losses, the appointment of top bundlers to ambassador positions, etc., etc., taken all together these things also make obvious that there is endemic quid pro quo  in our campaign finance system and that most of our politicians are guilty of FEC fraud, as well as in violation of their oaths of office. If the federal government cannot maintain a Republican form of national government, it cannot guarantee a Republican form of government to every state. 

    No Kings. "This land is your land. This land is my land. This land is our land"- Woody.

    Campaign Finance Reform Now.
    P.S. You can call me Kaboom.  Or EPK.  or you can keep calling me El Prezidente.  I just took tongue and cheek offense to being called "Presidente" by a relative newcomer.  It's El Prezidente Kaboom. Whatever.  I don't really care. I hope nobody thinks I'm a jerk for pointing out the correct spelling of my handle. You know how many times I had to look up Schmidt before I got the spelling down after you changed it from Frank? Anyways, just didn't want you to think I was a pretentious a-hole. In these conversations, I get the stimulus I need to produce literary output. I simply require q & a to bring my brain into full gear.
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    Okay Kaboom, I see your point. And yes being originally from Montana I applaud the Montana Supreme Court decision. But not being a legal scholar, I get into trouble quickly when I look at these rulings superficially. If they were easy decisions without controversy, we wouldn't have split decisions, like the 5-4 SCOTUS ruling on the Citizens United case or the 5-2 ruling by the Montana Supreme Court challenging the SCOTUS ruling...or 5-4 upholding Roe versus Wade.

    I do give credit to ThinkProgress, however, in pointing out the other aspects of the decision, i.e. the 1st Amendment rights as applied to other cases. And this is presumably what Montana Justice James Nelson was thinking in his dissent...hating the law but abiding by the law.

    You are correct to point out the ambiguity of the Citizens United ruling, but I also note that much of the OWS protests center around "corporations are not people." Many people think that the Citizens United ruling bestowed personhood on corporations, but actually wasn't that done by the Supreme Court over a hundred years earlier in the 1886 Santa Clara County v. Southern Pacific Railroad Company ruling? According to Wikipedia, "the decision was instrumental in laying the foundation for modern laws regarding corporate personhood, ruling that the Fourteenth Amendment equal protection clause granted constitutional protections to corporations as well as to natural persons."

    But that ruling wasn't without controversy either as the personhood language was not contained in the ruling itself, but rather a headnote written by a clerk reporter:

    "One of the points made and discussed at length in the brief of counsel for defendants in error was that "corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States." Before argument, Mr. Chief Justice Waite said: The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."

    Okay, I'm already over my head and will stop. But OWS public protests need to be clearer about what you are it the Citizen's United extension of personhood to corporations for campaign contributions (as per your resolution) or is it the 1886 SCOTUS ruling itself and its ambiguity.

    A 28th Amendment would certainly clear up everything, but there are different versions and language of that proposal floating around the internet as well.
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    See Truthout, January 17, 2012: The Problem With Citizens United Is Not Corporate Personhood

    While Senator Sanders and Representative Deutch correctly characterize the danger to democracy and the need for strong action in response, a close reading of Citizens United shows that constitutional rights of corporations played no role whatsoever in the Citizens United decision.

    The incorrect - but widely held - reading of Citizens United is that the corruption of elections arose fundamentally because the Supreme Court adopted a legal doctrine of corporate "personhood" which endowed corporations with First Amendment free speech rights, which, combined with the notion that spending money to promote a candidate is a form of speech, gives corporations the right to spend unlimited amounts of their money in elections. This incorrect reading of Citizens United is compounded by the further error that a constitutional amendment is necessary and sufficient to remove those corporate constitutional rights and to remove corporate money from elections, or could prevent the pro-corporate majority on the Supreme Court from making further decisions corrupting elections.

    Read the entire article in Truthout at the above link.

    In other's complicated.
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    <em>Citizen's United</em> held that independent candidate specific political campaigns were subject to first amendment protections.

    This means that the government could no longer categorize direct references of a candidate to an election in an advertizement as a direct donation, subject to limits. There might be a difference between issue advocacy and candidate specific advocacy, but it does not matter to the law, all that matters is that is not "coordinated."

    Before the soft money ban, corporations and their controlling officers got around these bans by giving money to parties, who could accept unlimited donations for specified expenditures, which gradually expanded from party building to so-called "issue advocacy." Until BCRA, so long as a candidate and election were not mentioned, anyone, besides candidates, could run unlimited 'anti-candidate X' ads so long as they didn't mention the election or office.

    Now, because of <em>Citizen's United</em>, independent campaigns can run whatever they want, so long as they do not "coordinate" w/ the party or the candidate, while the soft money ban remains in effect, weakening the political parties.

    I say regulation of political activities is part of the deal individuals accept when they incorporate and form corporations with other people.

    I agree that BCRA went too far. I think the government can regulate political ads on the public airwaves, but pay-per-view and satellite transmissions is way off the map, and so are books, and whatever else the FEC has argued.

    My position is relatively simple: the moral hazards of incorporation justify a compelling state-interest in regulating the political activities of corporations and their controlling officers, even if corporations enjoy the same constitutional rights as people.

    But we should not even be talking about constitutional rights here. Government as a buyer, seller, and creditor in the marketplace can set the general terms and conditions of doing business with the government, or incorporating with the support of its legal and economic largesse.

    I think corporate person-hood is nonsense from any perspective. I think it is irrelevant. Of course, they are not people-people. But they are associations of people governed by laws to protect the individual rights of members. Insofar as the collective rights of the entity as a whole to free speech is concerned, the corporate form absorbs the individual rights of free speech, aside from corporate speech regulated by charter and law. Government not only tells corporations the what, but it delivers deadlines on the when, with respect to reporting mandates, and other disclosure requirements; and not only that, but government limits what corporations can say and when they can say it, and to whom they say it with, under a whole host of regulations with respect to patent, insider trading, and boiler room laws, etc., etc. The dangers of fraud justify major, intrusive regulations to make capitalists honest about asset quality. So if corporations are people, they are highly regulated, criminally insane people, whose political activities should of course be regulated under current law, unless we want to put the fox in charge of guarding the hen house.

    Crony corporate capitalism is right-wing state-socialism.

    "[url=" rel="nofollow">Don't Tread on Me[/url]"- Metallica
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    I left out some meat about my feelings on BCRA:

    I think commercial activities and free reading material are protected by the first amendment in unlimited amounts, provided only that said organization providing the service is not funded by regulated political contributors for purposes of political candidate advocacy in excess of limits. In other words, there should be a regulated barrier and crossing point  between the commercial + non-profit side and political candidate advocacy.  Here we should police violators after they commit the crime, so to speak, so as to interfere less with legitimate commercial activity and free speech rights of individual citizens. If a book gets published trashing a certain candidate, and it is discovered the publishers were funded by regulated contributors beyond allowable limits for the express purpose of political candidate advocacy,  the government should not go out and take the book off the shelves; it should fine or punish those who are in violation of the law.
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    Kaboom, I've been delving into areas that I am less knowledgeable about and I have to do a lot of reading to catch-up. It would appear that the topics of campaign finance reform and corporate person hood have been muddled together, and I appreciate your efforts to clarify the issues. Certainly the various "corporations are not people" proposed amendments to the Constitution have added to the confusion.

    There are currently 14 different amendments being proposed (see Idiots Guide to the Amendments) the most prominent being Bernie Sanders Saving American Democracy Amendment and that of Move to Amend.

    The Sanders amendment expressly excludes for-profit corporations from the rights given to natural persons by the Constitution of the United States, prohibit corporate spending in all elections, and affirm the authority of Congress and the States to regulate corporations and to regulate and set limits on all election contributions and expenditures.

    The Move to Amend proposal states that the rights protected by the Constitution of the United States are the rights of natural persons only. It also states that Federal, State and local government shall regulate, limit, or prohibit contributions and expenditures and requires that any permissible contributions and expenditures be publicly disclosed. But it goes further in stating that "the judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment."

    I certainly wouldn't begin to know what other implications there may be on overturning established case law regarding corporate personhood or spending money is not free speech. But campaigning to get an amendment passed, while making for good political rhetoric, would be a lengthy process perhaps taking years.

    However, as both you and Truthout pointed out, the "corporate personhood" provision is irrelevant for overturning those parts of the SCOTUS Citizens United ruling that pertain to campaign contributions, and a more practical solution lies in Congress making new laws that define the limits of corporate spending on campaigns.

    Your point is well taken that "we should not even be talking about constitutional rights here. Government as a buyer, seller, and creditor in the marketplace can set the general terms and conditions of doing business with the government, or incorporating with the support of its legal and economic largesse."

    Truthout, in their January 17th article, Constitutional Amendment Not Needed: Congress Already Has a Remedy says much the same thing. Extracting from their article:

    Under our existing Constitution, Congress already has the power to stop the court from making any more of the decisions that have allowed the 1 percent to buy elections. Then Congress can pass legislation reversing the unconstitutional decisions the court has made to corrupt elections.

    Hence, under the Constitution, Congress has the power to remove Court jurisdiction over financing election campaigns. Removing Court jurisdiction means that the court would not even be able to take up cases involving financing of elections. Congress and state legislatures will then be free to pass laws removing private money from election campaigns. Thus, Congress already has power to curtail the court and the tyranny of private money in elections facilitated by the 5-4 majority of Supreme Court judges whose goal is to empower the 1 percent at the expense of the rest of us.

    I may not fully understand all of this, but it seems logical to me that Congress should and could exert its authority under the Constitution to regulate corporate campaign spending... and that SCOTUS exceeded its authority to define it otherwise. On the other hand, I just don't see that least not with this Congress. Republicans know that they have the advantage with the SCOTUS Citizen's United ruling and won't relinquish that advantage very easily. That's where the grass roots campaign of OWS can push them in that direction.