Thanks for that thoughtful reply, Dave. It will take me awhile to digest it. In the meantime, I offer this for your consideration: the Oklahoma Constitution (http://www.oscn.net/applications/oscn/deliverdocument.asp?id=85024&hits=) contains the following provision ... interesting stuff ... no cases are reported at OSCN which interpret this provision ...




Oklahoma Constitution, Article 9, § 40. Influencing elections or official duty.


No corporation organized or doing business in this State shall be permitted to influence elections or official duty by contributions of money or anything of value.



I suspect the vagueness of the provision makes it impossible to apply. Take it on its face and every editorial by OPUBCO or any other incorporated print/broadcast medium would fall under its plain language.

What special rights are you referring to, in particular?

Limited liability for starters, the main driver for forming and investing in corps, and that which begins tilting the playing field, shifting risk from the individual owner to the individuals who make up the public.

Limited liability for starters, the main driver for forming and investing in corps, and that which begins tilting the playing field, shifting risk from the individual owner to the individuals who make up the public.

Well, my understanding is that LLC's are actually limited liability companies, not corporations, so I'm not quite sure I'm getting the drift here. That notwithstanding, help me understand...are you saying that, as an example, a doctor who organizes as a PLLC should not have the same free speech rights as, say, a school teacher? If so, why?

Well, my understanding is that LLC's are actually limited liability companies, not corporations, so I'm not quite sure I'm getting the drift here. That notwithstanding, help me understand...are you saying that, as an example, a doctor who organizes as a PLLC should not have the same free speech rights as, say, a school teacher? If so, why?

Every corporation acting within the law is able to limit liability to the corp and protects the individual(s) who are behind it, in whatever form that corporation takes be it LLC, professional, S or C corp. Which takes us back to my original post, the "individual" has removed him or herself by becoming part of the corp. (The other side of that coin is the risk is placed on others.) Our society thinks that's good, it encourages people to invest and take risks they do not want to be held accountable for otherwise, which leads to increased economic activity and corporate profits. Profits are increased in part by changing the risk to reward ratio in a corp structure as compared to a sole proprietorship or a regular partnership. But using that advantage to impart political gain is the problem under discussion. It is not a level playing field to do that and the inequity is granted by government.

So lets imagine what the corporate environment would look like, most importantly the profits of companies collectively that might be spent in part on politics, if every shareholder in every company could be held personally liable for debts or other liability the company may incur. Imagine the sucking sound you would hear as investment was pulled from the stock market and other businesses. Then adjust those remaining corporate profits to include what was lost and unrecoverable by creditors on defunct companies and lets see how much is left to influence politics. The field would be more level at least.

A good start instead of that path which would cripple business as we know it, is to limit what corps can spend money on but additionally and better yet is publicly financed elections.

Double, please define what, specifically constitutes the "playing field" you see as "not level," and explain how any individual of a superior economic position - not a corporation - could not be accused of manifesting the same "unlevel" playing field merely because of that superior economic position? That is, set aside the corporate issue, and explain how there is any less of an "unlevel" playing field between an individual with the resources to make substantial contributions to a campaign versus someone who does not. My point is the rationale you specify isn't really about corporations, its about superior economic positions, meaning anyone of such a position could be deemed to have an "unfair" advantage and have their speech suppressed accordingly. So, that's why I need to understand more specifically what you are referring to when you say "level playing field." It doesn't sound like you really intent to constrain it to corporations. Further, the inequity you are discussing is not a constitutionally defined equality, so again, I need to understand this "playing field" better. There are *always* going to be entities of superior economic position and thus have greater ability to affect political actions at all levels.

The reason I want you to clarify that is because the SOCTUS decision specifically laid out how the Congress has no authority to respect classes of speakers, or to create "preferred" or "non-preferred" speakers as an outgrowth of free speech rights are to be interpreted broadly to facilitate as much speech in the exchange of ideas. Given that the overwhelming number of corporations in the US are actually small companies, not the large ones primarily implied in this discussion, I'm trying to see in real terms how suppressing the speech of these myriad small corporations does anything to level any sort of playing field. As I mentioned to Doug, I don't see how our freedoms are enhanced by expressly suppressing them for a particular class.

So, in response to my previous question, in your view, a doctor who operates under a PLLC is not entitled to the same rights as the schoolteacher, correct?

Double, please define what, specifically constitutes the "playing field" you see as "not level,"

We are talking about the election process primarily but law and policy making in general are we not?


and explain how any individual of a superior economic position - not a corporation - could not be accused of manifesting the same "unlevel" playing field merely because of that superior economic position?


Irrelevant to the discussion if the individual did not achieve superior economic position through special rights given under the law like corporations do but very problematic IMO and addressed below. No citizen should be able to buy a law or an election.


That is, set aside the corporate issue, and explain how there is any less of an "unlevel" playing field between an individual with the resources to make substantial contributions to a campaign versus someone who does not. My point is the rationale you specify isn't really about corporations, its about superior economic positions, meaning anyone of such a position could be deemed to have an "unfair" advantage and have their speech suppressed accordingly.

See above.


The reason I want you to clarify that is because the SOCTUS decision specifically laid out how the Congress has no authority to respect classes of speakers, or to create "preferred" or "non-preferred" speakers as an outgrowth of free speech rights are to be interpreted broadly to facilitate as much speech in the exchange of ideas. Given that the overwhelming number of corporations in the US are actually small companies, not the large ones primarily implied in this discussion, I'm trying to see in real terms how suppressing the speech of these myriad small corporations does anything to level any sort of playing field. As I mentioned to Doug, I don't see how our freedoms are enhanced by expressly suppressing them for a particular class.

Already addressed in a previous post. You have failed to address what I've said about it though.



So, in response to my previous question, in your view, a doctor who operates under a PLLC is not entitled to the same rights as the schoolteacher, correct?

A person who has given over their individuality to a corporate structure can only legally represent and act from that corporate position as the fictional legal entity not as the individual hiding behind the corporate veil. Since that fictional entity has been given special rights and economic power that can be used to influence elections, we as a people, need to amend our constitution to prevent that influence from happening.

There is nothing to prevent that doctor, or any other stockholder in a another corp from acting outside the corp as an individual and doing whatever, flatfooted, along side or in opposition to the teacher but it is wrong IMO to allow that from within the corp as the legal representative of the specially advantaged corp.

However, that too is problematic when substantial gains from a corp are passed to the individual and then used to influence elections. The end result is the same as if they done so within the specially advantaged corp with that special advantage now passed to the individual. Thus, part of the solution is government financed elections.

I have no problem allowing some people to have special rights, be able to operate differently and be held to a different standard of responsibility, but those rights need to only be conveyed with restrictions. Restrictions in the ability to influence elections is part of what needs to be in that package. So again, which way do you prefer it, the ability to have corporations with additional rights AND restrictions or no special treatment at all for corps?

I see that there is a very good discussion going on here without barbs and innuendo and that is great. Dave, it might be a few days before I make a substantive response to your post since I'm prioritizing a good bit of my time right now to do further research related to this issue as well as to complete my started but not finished blog post on this topic ... as well as some other things. But, respond I will and I apologize for the delay to your well thought out and lengthy comment.

I will add this resource for serious researchers, the decision by the Montana Supreme Court on 12/30/2011 to uphold its own statutes which either limit or prohibit corporate political contributions (I'm just now studying the decision and I'm not sure which is the case) against the backdrop of the Citizens United decision. In Western Trading Partnership, Inc., v. Montana, the Montana Supreme Court ruled 5-2 that its own state law prevailed against the Citizens United decision. I've saved 2 versions of the file containing this decision ... the original PDF version (http://www.dougloudenback.com/misc/montana_westerntraditionpartnership_v_montana1.pdf ) which is 80 pages long and my modified PDF version (http://www.dougloudenback.com/misc/montana_westerntraditionpartnership_v_montana2.pdf ) which is 33 pages long (my modifications only relate to formatting issues and fully contain the original text but with different font, font size, margins, line spacing, and paragraph spacing). In my version there are a few PDF bookmarks.

An interesting note about the majority's decision is that it references a source produced by the University of Oklahoma Press eight (8) times in its opinion. Here is a paragraph from majority opinion which first mentions the book which illustrates this:




¶23 Examples of well-financed corruption abound. In the fight over mineral rights between entrepreneur F. Augustus Heinze and the Anaconda Company, then controlled by Standard Oil, Heinze managed to control the two State judges in Butte, who routinely decided cases in his favor. K. Ross Toole, Montana, An Uncommon Land, 196-99 (Univ. of Okla. Press 1959) [my emphasis supplied to identify the Oklahoma source] the Butte judges denied being bribed, but one of them admitted that Anaconda representatives had offered him $250,000 cash to sign an affidavit that Heinze had bribed him. Toole, Montana, An Uncommon Land, 204.
However one might come down on the Citizens United decision, the Montana Supreme Court decision is a good read for serious students of this topic, both in the majority and minority opinions.

As to legal stuff, a decision by a State Supreme Court may be reviewed by the US Supreme Court by a "Petition For Certiorari." Petitions for certiorari are permissively accepted by the US Supreme Court, i.e., it can accept the appeal or it can decline to do so. The determination of that type of issues in the process is likely in place as we speak.

The Wall Street Journal (http://blogs.wsj.com/law/2012/01/13/citizens-united-lawyer-tapped-to-handle-montana-appeal/) reported on January 13, 2012, that "James Bopp Jr., the Terre Haute, Ind.-based lawyer who brought Citizens United, has teamed with Montana organizations to take the case to the U.S. Supreme Court, Coyle reports."

Another research note: The various state laws which conflicted with Citizens United are shown at the National conference of State Legislatures website (http://www.ncsl.org/legislatures-elections/elections-campaigns/citizens-united-and-the-states.aspx).

It occurred to me on my short drive to work this morning the question of how long it will be before these newly recognized corporate personas will want to vote and hold office, though both acts pale in comparison to the grip they have on the government now. How about we elect Phillip Morris Inc. to an office?

However, that too is problematic when substantial gains from a corp are passed to the individual and then used to influence elections. The end result is the same as if they done so within the specially advantaged corp with that special advantage now passed to the individual. Thus, part of the solution is government financed elections.

And that issue, in a much broader context, is precisely one element cited in the SCOTUS majority opinion in Citizens United about the corporate influence - a great percentage of Americans derive their income from the proceeds of a corporate entity, this clearing the path for a Governmental "pre-emptive" strike on any speech from any person if a path, however oblique, can be established from the publication of that opinion to a corporate source. That's the key here - in this quest to constitutionally prohibit corporate speech, primarily because of the notion of the large corporation co-opting government to its own ends, negates the reality that "corporate America" as it were is much more broadly revealed in the small companies that dot the nation, or in the way our economic system distributes revenues through them. You can't start regulating one without inherently regulating the other.


So again, which way do you prefer it, the ability to have corporations with additional rights AND restrictions or no special treatment at all for corps?

The question presupposes I accept what you have termed to be the "additional rights" from a constitutional perspective, and with all due respect, I don't. I believe the argument to be insufficient because the de-facto "preferred speaker" that is argued to exist by virtue of the corporate entity's corporate status does not, in and of itself, provide the implied political access that is claimed. Consider: I own a business. Tomorrow, I file the papers that makes me a corporation. How does that process immediately make me a defacto "preferred speaker" in the argument? I have acquired no additional funding, profits, or resources to influence anything merely for becoming a corporation. As a result, I am compelled to reject the argument that having limited liability gives me inherent power, access, or economic leverage to approach, influence, or "buy" any aspect of the political process. It is the economic power that may arise as a result of the existence of the corporate entity that brings into question the influence so described.

The Montana decision that Doug cites is a prime example of where the system breaks down even beyond the corporate/economic influence element. How did a demonstrated bribe of such a staggering sum - $250K - to sign a false affidavit not escape criminal bribery statues? (Which points out the fact I need to read that decision in full as well when I get a chance!) More broadly, however, is the idea that that the court rationalizes a pre-emptive prohibition on such speech because of the bad conduct of other actors. Doesn't that rationale tend to work against the notion of innocent until proven guilty? That is, its often difficult to get evidence of prior bad acts of a given defendant introduced into a criminal trial, as they're often deemed irrelevant or inflammatory, yet there is a willingness to preemptively suppress the speech of one actor merely due to the evidence of bad actions on the part of other actors? I am not at all prepared to go down that path. Preemptive government prohibition as described is the very essence of governmental prior restraint. But I do need to read the Montana decision Doug so thoughtfully posted, as I admit I'm arguing a bit in the dark on the facts of that one.

This is a good discussion, hopefully making us all think this through. This is a decidedly non-trivial issue at hand.

The question presupposes I accept what you have termed to be the "additional rights" from a constitutional perspective, and with all due respect, I don't. I believe the argument to be insufficient because the de-facto "preferred speaker" that is argued to exist by virtue of the corporate entity's corporate status does not, in and of itself, provide the implied political access that is claimed. Consider: I own a business. Tomorrow, I file the papers that makes me a corporation. How does that process immediately make me a defacto "preferred speaker" in the argument? I have acquired no additional funding, profits, or resources to influence anything merely for becoming a corporation.

You have ignored the example I cited, limited liability.

Consider I have a net worth of 100 million and wish to pursue putting out fire with gasoline. The potential profits are enormous. I'm willing to put 10 million in the venture but I risk losing the 100 million. The government conveys me special rights if I incorporate such that I can limit my liability to that which is invested in the company. If I fail at this in one company, I'll surely win another way as I am going to attempt it in 10 different companies with 1 million in each and bankrupt those that fail, leaving damages to be picked up by the government and or the public while preserving the bulk of my wealth. I fully intend to use the profits from the successful venture to influence elections. Thus, the government has effectively created me as a preferred speaker by enabling my ability to leverage my wealth and externalize the expense of my failures.

1 million cost to attempt.
Cost of clean up on a failure is 100 million.
Potential gain on success is 100 million.
1 in 10 chance of success.

Without a corp I have a one in ten chance of making 99 million and 9 in ten of losing everything.

With corporate protection laws I stand to lose 10 million but end up externalizing to others 900 million in costs for my 9 failures (money they won't be able to use on free speech), while netting 90 million from the 1 success I had that I will spend on buying elections. And I still have my other 90 million!

It occurred to me on my short drive to work this morning the question of how long it will be before these newly recognized corporate personas will want to vote and hold office, though both acts pale in comparison to the grip they have on the government now. How about we elect Phillip Morris Inc. to an office?

Shouldn't corporations between the ages of 18 and 26 be required to sign up for the draft?

Shouldn't corporations between the ages of 18 and 26 be required to sign up for the draft?

If GM is drafted, who actually has to carry the M16 assigned to GM? Do all the employees have to go, just the CEO, the Board of Directors, all stock holders?

You have ignored the example I cited, limited liability.

Consider I have a net worth of 100 million and wish to pursue putting out fire with gasoline. The potential profits are enormous. I'm willing to put 10 million in the venture but I risk losing the 100 million.
....!

And this argument ignores the notion that it isn't the limitation of liability that gives you the supposed speech privilege, its the economic power. If you've already got $10m in discretionary income, you have more power to influence a political outcome than 99.9% of the public, regardless of your corporate standing.

And this argument ignores the notion that it isn't the limitation of liability that gives you the supposed speech privilege, its the economic power. If you've already got $10m in discretionary income, you have more power to influence a political outcome than 99.9% of the public, regardless of your corporate standing.

That's why I gave you the two examples with exactly the same starting basis to show how government granted special rights thought incorporation significantly alter the relative power between the two. The same issue exists at other scales but the fact it exists at any level demonstrates the problem.

Double, we'll just have to respect our differences of opinion on this one. I understand the point you are trying to make, but I respectfully disagree with it. The overwhelming majority of corporations that part of the spectrum of liability protections are far removed from the multi-million-dollar entities implied in the example you provided. As a result, I simply don't believe you can justify the encumbrance of speech solely on the basis of limited liability, because the liability on its face grants nothing without corresponding economic leverage - and the absence of leverage is, as noted, the condition in which the vast majority of such corporations find themselves.

I would, for the sake of argument, tend to agree that publicly financed elections would be one probable remedy for the situation you cite, but that shutters the private individual from participation in the political speech arena entirely.

Thanks for the good debate. I appreciate your position, hope you can at least respect mine although we differ.

I do, and that of the SCOTUS as well. Both show the answers may not be as simple as a broad amendment.

In case anyone missed it, here is a February 6 article by the Oklahoman's Michael Kimball (http://newsok.com/article/3646542),




Oklahoma City Council seeks control over disclosure rules on election spending

BY MICHAEL KIMBALL
Published: February 6, 2012

Local governments can't regulate their election spending rules in Oklahoma.

The burden of the district attorney is to enforce the current law, which Oklahoma County's David Prater said is almost unenforceable and probably unconstitutional.

The state Ethics Commission agrees and implored the Legislature to scrap it but also recommended giving enforcement authority for a new law to district attorneys like Prater who don't want it.

Members of the Oklahoma City Council plan to ask the Legislature to clean up the mess by giving cities and counties the power to regulate their own election spending disclosure rules.

Councilmen Pete White and Ed Shadid are leading the charge in Oklahoma City to ask lawmakers to overhaul the state law governing local elections or write a new one. Mayor Mick Cornett, Councilman Pat Ryan and Councilwoman Meg Salyer also have publicly voiced support for exploring how the city can gain control over election spending disclosure rules.

“We clearly are deserving of oversight of our elections,” Shadid said.

Current law from '95

The state's current law for local elections, the Political Subdivisions Ethics Act, took effect in 1995. It doesn't mention indirect expenditures by groups like political action committees, or PACs, which played virtually no role in politics then but were the biggest spenders in Oklahoma City's historically expensive elections last year.

The door for big spending in local elections was thrown wide open by the landmark and controversial U.S. Supreme Court decision in 2010 that ruled people, corporations and PACs can spend with no limit to independently influence a campaign.

In a recommendation to be officially delivered to Gov. Mary Fallin and the Legislature this week, the state Ethics Commission noted “unprecedented expenditures” in recent local elections in asking them to change the law.

More than $1 million was spent by candidates and PACs for the 2011 elections in Oklahoma City. Most of the money came from PACs that backed both winning and losing candidates, and many of the biggest donors remained anonymous.

White worries the avalanche of anonymous money would discourage people from running for local office.

“What (candidate) ... is going to file against half a million dollars of undisclosed money?” White said.

Criminal vs. civil

Prater said the commission's recommendation to hand enforcement authority for election ethics violations to district attorneys isn't practical. Criminal cases have a high burden of proof requiring prosecutors to show a donor intended to break the law, and a conviction would lead to a criminal penalty.

“Civil penalties are more appropriate, I believe,” Prater said.

White and Shadid favor legislation giving local governments leeway to write their own rules for disclosure and civil penalties for violations. An alternative is the ability to set up a city Ethics Commission, but White fears that opens up a can of worms for the appointment of the commissioners to be too political.

“Even though that's how the ethics commissioners are appointed at the state level, at least they're more remote from every election across the whole state,” White said.

Ultimately, the councilmen said they think required disclosure of who is spending money would make the spending more responsible because the spenders would be more accountable to voters and candidates.

“I don't think anybody's under the illusion that you can go back to the days where you're not going to have substantial amounts of money (and) substantial expenditures (in local politics),” Shadid said. “But the public has a right to know who's contributing to whose campaigns.”

I've looked on tomorrow's city council agenda but I couldn't find any mention of this. Perhaps I missed it.

Incidentally, here are my poll results so far, with 42 votes:


I am content with the Citizens United Decision and would not want to change it.
Votes: 5 (14%)
Corporations are NOT people under the US Constitution and they should be prohibited from making ANY political contributions. I understand that this would require a constitutional amendment.
Votes: 22 (52%)
Corporations are NOT people under the US Constitution but they should be allowed to make LIMITED political contributions coupled with identity disclosures. I understand that this would require a constitutional amendment.
Votes: 13 (30%)
Corporations are NOT people under the US Constitution but they should be allowed to make UNLIMITED political contributions coupled with identity disclosures. I understand that this would require a constitutional amendment.
Votes: 1 (1%)
None of the above.
Votes: 0 (0%)

A logical spin-off of the Citizens United and Occupy The Courts stuff is what has been going on at the Oklahoma City Council level during its past three meetings -- January 17, January 24, and February 7 -- toward the end of requiring Super PAC disclosure for city elections, and which discussions have only been scantily reported on in our local press, even though during those 3 council meetings about 52-53 minutes of time have been expended in the discussion so far.

These efforts are being led by Ed Shadid and Pete White and focus on doing something at the city level, if possible, before the 2013 city council elections for Wards 1, 3, 4, and 7, and the mayoral election in 2014. Their present goal is a modest one -- identification of "Who Are You?"

I've begun to write about their efforts here, The Men Who Kicked The Hornets Nest (http://dougdawg.blogspot.com/2012/02/men-who-kicked-hornets-nest.html), with the introductory video being shown below. Credit The Who for their tune in the background audio, "Who Are You," and the concept idea to the fabulous Dragon Tattoo trilogy by Swedish author Stieg Larrson and the trio of Swedish movies which tell the visual story, which are incredibly good if you've not seen them. I'm not talking about the American movie version of the 1st book which, while very good, does not track Larrson's work nearly as well as the superior Swedish version of the 1st book, The Girl With The Dragon Tattoo, does. The name of the last book in the trilogy is The Girl Who Kicked The Hornets Nest, and hence the title of my blog post.

Sadly, my introductory video comes nowhere near matching that quality but here it is and hopefully it serves to makes the local point (and, yes, I misspelled "tattoos in the video):


http://www.youtube.com/watch?v=OukjFS-vJVc

My article presently contains all 53 minutes (approximately) that the city council expended on the topic during January 17, January 24, and February 7, together with summaries of what was said during those meetings.

Even though the above stuff is already there, the article is not done -- I need to add more background information -- and I'm planning to expand the article as additional city council meetings take up the topic.

Here is a blog poll update as of April 16, with 151 participating in the poll so far. The poll ends July 1. Its intro text reads, "Please take the Citizens United Poll below by selecting one of the 5 choices below. Use the horizontal scroll-bar at the bottom to see the full text of each choice, or after you have voted, to see each choice's results."


I am content with the Citizens United Decision and would not want to change it.
14 Votes: 5 (9%)


Corporations are NOT people under the US Constitution and they should be prohibited from making ANY political contributions. I understand that this would require a constitutional amendment.
Votes: 90 (59%)


Corporations are NOT people under the US Constitution but they should be allowed to make LIMITED political contributions coupled with identity disclosures. I understand that this would require a constitutional amendment.
Votes: 39 (25%)


Corporations are NOT people under the US Constitution but they should be allowed to make UNLIMITED political contributions coupled with identity disclosures. I understand that this would require a constitutional amendment.
Votes: 3 (1%)


None of the above.
Votes: 5 (3%)

If you have not already voted, you are invited to do so regardless of your point of view. The poll is located in the left pane at the top of my blog, below the masthead graphic.