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02/26/2010

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Hoppy's Commentary for Friday

Talkline Host Hoppy Kercheval

When it comes to campaign spending laws the West Virginia Legislature never seems to learn. Twice it has passed laws aimed at controlling election spending and both times they have been struck down by the courts as unconstitutional.

Now, lawmakers are at it again. This year a group of Democrats is pushing legislation (HB 4646) aimed reinstituting restrictions on spending that were wiped out by the U.S. Supreme Court earlier this year. (The bill is on second reading in the House)

In Citizens United v. Federal Election Commission, the high court in a 5-4 decision said that under the First Amendment election spending by corporations cannot be limited.

Yet, here comes the West Virginia Legislature trying to do just that. The bill attempts to put in place a range of obstacles that would make it extremely difficult for a West Virginia corporation to exercise its First Amendment right of free speech.

The legislation says that if a corporation spends over $10,000 in an election it must first get approval from over half (50 percent plus one) of all shareholders. The bill says “Shareholders not casting votes shall not count toward affirmative authorization under this chapter.”

Does that mean a corporation has to track down everyone who has even a single share in an effort to meet the threshold? What about corporations that don’t have shareholders? Does the vote of a person with 10,000 shares count the same as a person with 10 shares?

The proposal also discriminates against in-state corporations. Under this bill, Budweiser could run unlimited ads in a West Virginia campaign without shareholder approval because it’s based out of state, while a West Virginia-based corporation has to meet this requirement.

The Iowa Legislature is trying to pass similar legislation. Sean Parnell, president of the Center for Competitive Politics, said of their attempts, “The Supreme Court’s decision allowed for disclosure of independent expenditures. It did not permit states to throw up a regulatory gauntlet of overly-burdensome shareholder regulations to force companies to run through before they are allowed to speak on urgent political issues.”

Also, the proposed West Virginia law does not cover union spending. Labor organizations could engage in unlimited spending for or against a particular candidate or issue without getting membership approval while corporations must seek shareholder permission.

So, under the West Virginia bill, unions and corporations would be treated very differently, which may well violate the 14^th Amendment guaranteeing equal protection.

The West Virginia bill also makes the head of the corporation “personally liable” for campaign spending “without the authorization of shareholders.” That enforcement provision would no doubt have a chilling effect on any corporation considering speaking about a candidate or an issue.

It’s evident that those backing this bill in the West Virginia Legislature want to stop certain business from exercising what the Supreme Court has said are their First Amendment rights. This is an overt attempt to stop opposing voices.

The bad news is there are those in the West Virginia legislature who believe their random actions can trump the Constitution. The good news is this bill, if it becomes law, will end up like the rest of the attempts—on the trash heap of atrocious legislation because a court will declare it unconstitutional.

User Comments

P.S. I saw on the other post that the lawyer you had on your show yesterday was George Carenbaur. He should know better. But then I see he's a paid lobbyist. I don't remember you mentioning that part. Maybe you did.

The founders were bright people. If they had intended for corporations to be people and have the same rights as individuals, they would have said so. In any event, just like all rights, there can be some reasonable limits (we can't yell fire in a crowded theater, we can't own a howitzer)...it is not at all unreasonable to require corporations to get their share holders permission for political speech...after all, unions have to get permission to use dues for political activity. (A republican passed law, I believe.)

Also keep in mind that corporations are not individuals. They are creations of law...their existence is based upon shareholder ownership. While individual shareholders may not make day to day decisions about running the corporation, those running corporations should not be permitted to make political decisions for all shareholders. After all, I hear it all the time...corporate officers say time and again their duty is to their shareholders. Why is that any different when it comes to political speech (advertising a political viewpoint is what I mean by political speech)?

For the stock I own, I do not want that corporation to spend my money on political speech without at least having my opinion about it -- in the form of an up or down vote. All shares vote, each vote counts as one vote, just like other corporate votes. If the majority wins, so be it. Unless the corporation was formed to engage in political speech, its duty to me is to turn a profit and give me some of the money back. Its duty to me as a shareholder does not include engaging in political advertising for/against someone I may/may not be supporting. So the corporation, of which I am an owner, should have to have shareholder approval to engage in political speech.

I think there is merit to the bill. I am a stockhold in many companies. Why does a corporation get to spend money on candidates I oppose without soliciting my input? It is one thing to give the company the right to make production and related decisions, but its expenditure of money that might otherwise go to me in dividends to support candidates I oppose is wrong. Who is the corporation? The current CEO or the stockholders? Is the corporate treasury the personal political fund for the CEO and other top officers? It is one thing for Blankenship to spend his own money on Benjamin, but does that mean he also has the unfettered right to spend the money of Massey's stockholders? Corporations are not born of a mother's womb. They are creatures of the state with all kinds of special privileges granted by the state. The State has the right to place restrictions on corporate governance and corporate conduct in return for their right of artificial personhood. You can bet your life that George Washington, Thomas Jefferson and the Gang did not invent the 1st Amendment to guarantee the unlimited right of megacorporations to outspend real human beings in order to ensure that their corporate taxes get reduced, their corporate regulations get repealed, etc. The romantization (spelling?) of the rights of corporations as political actors is really the invention of legal scholars who first convinced the Supreme Court to ordain corporations as persons in the latter part of the 19th Century. It is hardly "original intent" founding fathers Constitutional law. Let's not equate modern law protecting the First Amendment Rights of Corporations with the Rights of Human Beings that the Constitution was designed to protect. Or maybe the Declaration of Independence originally read: "We hold these truths to be self-evident, that all corporations are created equal to men (and women), that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness (and Profits)." Does anyone think American was founded on the above?

It's time to vote rockafellow out. He has went against the people that have put him in his position too many times. He doesn't listen or care about where we stand. It's time to get rid of him once and for all!

Hey Hoppy, I got to hear your show yesterday while I was home (which I don't normally get to do) and I have a bone to pick with you!

Why did you let those wing nut acivists get by with a free pass!? You just let them go right on with all their horse sh**&.

For instance, that pro-business intermediate appellate court advocate (he needs to have his license reviewed by the way). Why didn't you nail him? Why didn't you ask him how his new court would function if every pe-od litigant (which is everyone who loses) got full review? Including frivolous plaintiff's suits and criminal convictions. I read that bill - one of them - and it gives a "hearing" (poorly written) to every single final judgment issued in every court in the state, including interlocutory orders, which means a pe-od litigant can appeal before the case is even over. Not to mention that appeals from magistrate court go to circuit court which means they too would be eligible for this anomolous "full review" since an appeal from mag court is denied by final order of the circuit court.

How could you let that bozo tell the people of this state that 1) such a thing was even physically possible and 2)that it could be done for about what the state house toilet paper budge is for a year? That was plain irresponsible of you.

The way that bozo described his new court, it would be only for big businesses defendants who received a judgment. Or how did he put it for "important" cases. Now who decides what's important? Him? That's also not included in the bill by the way.

The Supreme Court is already bloated with bureaucracy. Not to mention that you didn't ask a self described tort reformer how adding another layer of litigiousness onto the system jibed with his philosophy of reform.

The fact is, an IAC would not have reviewed that NiSource verdict either if there was no error. Courts don't like overturning jury verdicts and they do it very rarely in civil cases where there's a judgment. Look at what happened with the Caperton v. Massey suit. Also, you could have reminded your guest that the U.S. Supreme Court also refused to review the NiSource verdict and that amounts to affirmation of the soundness of the underlying trial.

You blew so many opportunities to nail that a-hole and you not only didn't nail him, you let his propaganda just slide on through.

Then there was that small minded idiot who wanted the gay marriage ban amendment. We already have a "defense of marriage" statute for one thing and for another, what's her business if two gay people want to me "immoral." Didn't she say it was a "morality" issue for her? Seems to me that if it's a "morality" issue then it should qualify as none of her da*& business if two gay people want to get married and risk going to hell.

Why didn't you ask her just how her marriage would change if one day while she was sitting in her living room, with her husband, watching American Idol, two gay men got married in Boston. You didn't. You also didn't ask her just how it effected her if someone lived a life that didn't conform to HER religious beliefs. According to that dumb a*& bigot, the whole world is going to he*& including jews, muslims, budhist, druids and all the peoples of the world who don't thing being a small minded idiot sends you to heaven.

Shame on you Hoppy. You have a responsibility not to spread disinformation and propaganda over the airwaves and that includes calling people on their cr*& pola. Letting those people spread bad information and bigotry makes you almost as bad as they are.

Letting a person get in his or her side of the story is one thing, not calling someone on hate mongering and spreading bad information is another.

All right here it is:

"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".

This seems totally clear and unambiguous to me. I see NOTHING about unions, corporations, or any definition of what constitutes a person, or that only individual "persons" are the subject of this amendment.

I also see nothing guaranteeing freedom FROM religion or any limits on where religion can be practiced.

This bill you mentioned, just like the bill for increasing standards for magistrates(you talked about yesterday), as well as changing the placing of candidates on the ballot, are just examples of one party coming close to losing power and doing whatever they can to keep it. Also there are much more important issues than these that NEED their attention. Then they will come to the end and need a special session because they didn't get everything done. Hopefully the voters will see thru this coupled with everything else and this will be the begining of the end. Oh by the way one of the Dems in the legislature tried to say changing the ballot order was an objective way of doing it. How is that objective when you know the number of registered voters favor the Dems. GOD BLESS ED "BUDDY" RANDOLPH Candidate 41st District HOD

These people (our legislature) never cease to amaze my by pandering to unions as they do. It is nonsense like this that keeps WV in the economic gutter. Rather than waste time trying to circumvent the constitution for the benefit of a small few, I would prefer they concentrate on tort reform, overhaul of the business tax structure, a strong welfare-to-work program or perhaps a right to work law. Our citizens must enjoy being dead last in nearly every category, because they keep reelecting the same deadbeats term after term after term.

Hoppy, we should ANY of us be surprised when our glorious state lawmakers spend so much time and energy on a bill that's going to be struck down by our Supreme Court anyway?

These morons NEVER learn! Although the INTENT of the bill is noble (limiting corporate political donations) the bottom line is, it won't pass muster with our state constitution. Why keep beating a 'dead horse' until there's nothing left but a bleached skeleton?

Say hello to the WV Legistature, the greatest assembly of 'dead horse beaters' ever known!

Stay safe, folks. Enjoy the snow, have a great weekend!

Free speech is free speech, and campaign finance reform was created to do NOTHING other than secure an incumbents position in government. This piece of garbage legislation (which will magically exempt unions through legalese) is an attempt to hold on to power and squash voices. Sounds like proponents of this mantra fear it for their idea bank has gone completely broke.

Surely Hoppy you don't believe corporations deserve personhood???? That corporations should have the same rights as US citizens???? See folks, this is what happens when we have 7 out of 9 current justices have been appointed by Republicans. The main problem with our politics now is there's waayyy too much money involved. 80% of Americans believe Citizens United was a bad ruling. Interestingly and probably unwittingly you cited Budweiser, which is now a FOREIGN OWNED CORPORATION!!! So then I can only assume you think it's okay for a Saudi Prince or Hugo Chavez to dump hundreds of millions into our elections??? That is exactly what the ruling allows but since Rush and Hannity are telling you it is the right thing then you're following along. Once again I tell you they are nothing but corporate shills and this is the best example yet that they don't give a hoot about average citizens, they're only interested in what's good for the wealthy.

Free speech is not only for people who have the money to buy it. Good on the WV legislature for trying to limit the impact of this insane far right ruling, hopefully the US congress will be able to do more. And please stop playing the "Union boogeyman" card, only 7% of our workforce is unionized and comparing their impact to what corporations have is ridiculous.

What we need is publicly funded elections, get rid of all the lobbyist and money, then Congress could work on what's best for the citizens and the country not what's best for Citigroup!!!!

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