GOP Primary Megathread!

[Eddie Teach]

The one he can make the best hypocrtical joke out of?

Maybe he was knocking the lack of creativity.

[Ideologue]

Fourthly, despite the corporate shareholders basic if attenuated responsibility for damages done in their name, it's far more administratively convenient to charge either a corporate income tax, or a capital gains tax, or both, as a form of "social insurance" paid by all limited liability entities, to make up for the social harms some of them commit, by financing a strong, rich government, which will ameliorate that harm either through its functioning courts or through its generous social safety net.

This is hard to square with your apparent view on Citizens United (yes grinding that axe again).

snip

I still think you're buying far too much into the hype surrounding CU, and not the decision itself, which I hate to say because generally speaking you're way smarter than I am, but in this case it seems crystal clear that you're committing a misreading.  Protecting the speech rights of associations does nothing to advance the corporate form toward the same level of "personhood" as a breathing human, it simply protects the speech rights of breathing humans organized thus to collectively shoulder the financial burden of creating artistic works--which, whether you like them or not, must include feature length attack ads.  I simply cannot imagine a world where corporations (or other business entities) are prohibited from making political, cultural, or other statements.  It probably looks like the Soviet Union, where every movie is long and silent and half are very boring (sample size two, Battleship Potemkin and Solaris).  If it's wasteful, then that is a governance issue, and I am sympathetic to the possibility of requiring shareholder approval or creating or modifying a derivative cause of action for blowing money on Hillary: What a Bitch, or some legal regime that takes into account those issues and is not simply prohibitory.

However, outside of providing a framework for internal checks in the case of corporate speech, it's unbelievably dangerous to permit state power to interfere with expression based on its content, origin, or pretty much anything short of fraud or national security (viz. espionage, not clear and present danger and stuff like that).  I simply don't know how you can distinguish, on a legal basis, between "good" expression and "bad" expression (or "not" expression).

But of course the corporate form exists solely to advance the general welfare, and the general welfare is advanced by the marketplace of ideas.  But the analysis is wholly different when the question involves its taxation regime, as they are two entirely different issues that merely involve the same actors.

So to answer your question:

If a couple of friends and I form a bowling team and compete for prize money, the state can tax us for whatever we take individually but can't impose an additional tax on the Team as a whole.  Indeed unincorporated associations of citizens of all kinds are typically exempt from entity-level taxation, regardless of whether they enjoy limitation of liability or not.  But if corporations are entitled to all the usual rights of constitutional persons, then how can taxation be imposed on the entity level without violating Equal Protection?

Well, firstly, good luck in the SDNY in your facial attack on the corporate income tax.

Secondly, it's not the association itself that's the issue when it comes to tax, it's the availment of the proffered, statutorily created form.  EP simply does not apply in terms of unequal taxation to the category of corporations, in the same way that the vote can be withheld from corporations: in the first instance, no individual shareholder is compelled to avail themselves of the corporate form, and may instead organize in a pass-through fashion--they choose to be taxed differently; just as association does not impact the individual shareholder's right to vote.

Speech restraints upon corps (or business entities in general) do impact the individual shareholder's right to express themselves.  It seems pretty distinct to me.

Also, it's not as if I find any constitutional or policy problem in taxing the life out of breathing humans, either.

[Ideologue]

I meant her.  The topic was attractive women in US politics.

Ok.  I thought it was more over Ide's contention that Republican women are ugly monsters, apparently citing Nancy Pelosi to demonstrate that.  Which is novel.

The Who didn't die before they got old either.

[Ideologue]

It's a term of art that is used for opponents

[Maximus]

Well he's right. I thought the apology was well done. Not many people can do a decent apology.

[Malthus]

Ron Paul sure looks excited to finally meet his idol in person.

Maybe that's not Paul's hand Mitt is shaking. 

[Darth Wagtaros]

Does the GOP's racism know no bounds???

These smileys suck.

[katmai]

Does the GOP's racism know no bounds???

These smileys suck.

[Darth Wagtaros]

well they do.

[katmai]

well they do.

[Maximus]

Use different ones then.

[Neil]

These smileys suck.

Can't replicate.  User error.

[Eddie Teach]

These smileys suck.

Use forum/board default.

[The Minsky Moment]

I still think you're buying far too much into the hype surrounding CU, and not the decision itself, which I hate to say because generally speaking you're way smarter than I am, but in this case it seems crystal clear that you're committing a misreading.  Protecting the speech rights of associations does nothing to advance the corporate form toward the same level of "personhood" as a breathing human, it simply protects the speech rights of breathing humans organized thus to collectively shoulder the financial burden of creating artistic works--which, whether you like them or not, must include feature length attack ads.  I simply cannot imagine a world where corporations (or other business entities) are prohibited from making political, cultural, or other statements. It probably looks like the Soviet Union, where every movie is long and silent and half are very boring (sample size two, Battleship Potemkin and Solaris). 

OK then - let's look at the decision itself and see whether all it is doing is putting a sensible stumbling block in the way of Hollywood turning into Stalinist cinema and the other parade of horribles.

First, one must consider the background of legal rights coming into the case.  Individuals have First Amendment rights, and they do not lose those rights by entering into associations, including associations that are creatures of state law like corporations.  This very issue was addressed in Belotti, a 1978 Supreme Court case that applied the correct framework: "The proper question therefore is not whether corporations 'have' First Amendment rights and, if so, whether they are coextensive with those of natural persons. Instead, the question must be whether [challenged legislation] abridges expression that the First Amendment was meant to protect."  That is if a regulation - even if directed at a corporation - has the effect of undermining individual expression or "affording the public access to discussion, debate, and the dissemination of information and ideas" then it must be subject to strict scrutiny under the First Amendment.

Simple application of the Belotti principle would indicagte that CU presents a serious argument about whether the state's interest in applying BCRA's restrictions to a non-profit corporation's display of an artisitic work where the primary (but not sole sole purpose) is for electioneering outweighs the public benefit that can result from such displays in terms of disseminating ideas and provoking public discussion.  What there would not be a serious arugment about is whether no limitation could constitutionally be placed on corporate independent expenditures of any kind.  Clearly under Belotti such limitations are pemissible where there is a compelling state interest in doing so and the communications are of little value in providing a public forum or promoting individual expression.

But the Citizens United Court didn't just want to give a pass to Hillary:The Movie; they wanted to deep six the entire BCRA.  One of the extraordinary features of the decision is that the Court, while ruling for the Plaintiff, disagreed with most of the arguments CU made.  CU itself argued that Hillary wasn't covered by the statute, or that if it was - such an application of the statute should be found unconstitutional.  All this was consistent with the Court's prior precedents and yet the Court rejected all those arguments.   And since existing constitutional doctrine provided no basis for doing that, they had to invent one.  And the way they did that was by rewriting Belloti.  In the majority opinion, Belloti is characterized as holding the speech rights of corporations (as persons) stands with the same dignity as the speech rights of natural persons.  In fact, Belloti has nothing to say at all concerning the ontological status of speech rights of corporations - indeed that was precisely the proposition the Belloti Court viewed as a non sequitur.  Belloti protection of "corporate speech" is simply protection of activities that faciliate the First Amendment rights of natural persons, no more.

If it's wasteful, then that is a governance issue, and I am sympathetic to the possibility of requiring shareholder approval or creating or modifying a derivative cause of action for blowing money on Hillary: What a Bitch, or some legal regime that takes into account those issues and is not simply prohibitory.

If so, that legal regime will have to be created b/c as it exists now, teh BJ rule protects these kinds of decisions.
Also I would seriously question whether opening floodgates of massive private litigation is really a socially superior solution to this problem.

Speech restraints upon corps (or business entities in general) do impact the individual shareholder's right to express themselves.

I think that is a fantasy.  Corporations can and do impact personal speech rights - by providing means and forums of communcation, and by communicating ideas and concepts to the public and potential consumers, whether in the form of advertising or in more edifying kinds of information (e.g. newspapers or data compilations).  And all these activities have always been subject to protection, not on the basis that a rights-bearing corporate speaker speaks them, but on the basis that the listener or reader hears or reads them.  Individual shareholders OTOH don't buy shares in corporations to vindicate expressive rights, they invest to earn dividends and capital gains.

[CountDeMoney]

Speech restraints upon corps (or business entities in general) do impact the individual shareholder's right to express themselves. 

Being a shareholder is a voluntary exercise.  So fuck 'em.