Glenn Greenwald: Smart Guy, but Wrong on Court’s “Citizens United” Decision


brainGlenn Greenwald is an insightful writer. He is right about many things. He is wrong about the Citizens United decision, which he defends on First Amendment grounds.

Because we share first names I’m going to refer to him as Mr. Greenwald, for clarity and to signal my deep respect for his work.

I am not going to argue about whether corporations are persons, though I don’t think the Framers had corporations in mind when they wrote the First Amendment. I’m going to argue that the Supreme Court’s ruling has the practical effect of abridging my First Amendment rights and yours.

Mr. Greenwald says outcomes don’t matter. A principle is a principle, and it shouldn’t be judged on its outcomes, which will sometimes be good and sometimes be bad. I thought the American pragmatist philosophers (Pierce, James, Dewey, et al) dispensed with the notion of essential truths existing above and beyond earthly outcomes. Truths can only be judged by their consequences.

For instance, extending the right to free speech to someone in solitary confinement has no meaning, but you don’t know that if you don’t look to outcomes. With no one to hear him, the right is meaningless.

We can and should adapt to changing circumstances, not by abridging constitutional guarantees, but by looking to consequences to make certain those guarantees are fully protected.  In the context of today’s costly mass communications, the Court’s ruling gives corporations an ability to be heard that is beyond the means of average citizens. It handed new powers to corporations, powers that have the effect of curtailing my freedom of speech and yours. To be sure, the wealthy already had this power. The court greatly increased it. Still, the Court’s over-reach gives us the opportunity to correct past inequalities and errors.

Mr. Greenwald says we learned an important lesson during the Bush era:  Policies like warrantless wiretaps can’t be judged on their outcomes. I guess he means the “good outcome” of better security doesn’t justify violation of constitutional guarantees of privacy. But isn’t it the outcome of lost privacy that concerns us, rather than blind allegiance to an admittedly noble principle?

Bush scrapped constitutional provisions. I’m talking about applying them to changed circumstances. We can’t ignore the increased power the Court has given unaccountable corporations.  Greenwald’s Bush parallel doesn’t hold. The Court didn’t give corporations the same right to free speech that you and I enjoy. It gave them the right to more free speech than you and I have. It is equivalent to giving more weight to the votes of the wealthy, say, based on a measure of total assets. A person with 10 times my wealth gets 10 times more votes. That is clearly unconstitutional. It is a pretty close parallel to what the Court has done in the Citizens United case.

Mr. Greenwald ignores this fact:  all forms of speech communication are not nearly so equal as they were when the First Amendment was written and adopted. Television advertising is much more persuasive than a plain human utterance.  Its reach and repetition, purchased at high cost, are  beyond the average American’s ability to pursue. But it is not simply its reach that makes it powerful. Studies suggest advertising can actually alter our memories, and therefore our very selves. No matter how persuasive this little essay might or might not be, it won’t do that. (See Elizabeth Loftus.)

Mr. Greenwald has to assume that we are as rationally engaged in judging information conveyed via television ads as we are when reading or listening to our neighbors. This is not the case. I wish it were. Advertising is not mind control, but it’s not fully and rationally arbitrated, either. Much contemporary neuroscience and psychology also put the lie to the idea of the supremacy of reason and the unencumbered rational actor. (See:  George Marcus, Drew Weston, Antonio Damasio, Elizabeth Loftus, George Lakoff, Daniel Kahneman).

But now that I’ve mentioned mind control, how should we interpret the First Amendment in the instance of some form of irresistible mind-controlling medium? Would we ever be allowed to judge such a communication as something other than speech protected by the first amendment? Would we have to include outcomes in our reasoning? I think the answer to that is yes. To make a qualitative judgment about mind-control, we would have to look at its formal characteristics, its consequences, it’s outcomes. If we didn’t, we’d have to say a mind-control beam was protected by the First Amendment.

In any case, the wealthy can advertise; the street-corner activist can’t. So, the advertising corporation has more speech than the activist. This is the problem with the money = speech equation, which Mr. Greenwald also defends. I think the equation money = votes is more realistic. The more money you have, the more votes you control.

Without that equivalence, Mr. Greenwald says, Congress could prohibit the spending of money on say, criticizing laws passed by Congress, without violating the First Amendment. This example, by the way, implicitly recognizes a hierarchy of forms of communication as it seeks to protect the more powerful forms, those that cost more money.

This dilemma, rightly recognized by Mr. Greenwald, can’t be resolved without exploring, once again, the hierarchy of forms of communication. Simply shrugging and saying they are all the same won’t cut it.

What’s needed (besides a constitutional amendment that says corporations are not persons and a turn to full public finance of campaigns) is some kind of equal access guarantee. The late Fairness Doctrine was based on this insight. Is it far-fetched to ask that if a party wants to buy the most powerful, persuasive form of communication available, then its opponents must be afforded some opportunity to do the same?

Mr. Greenwald’s most spurious argument is that corporate influence is already so powerful that it can’t get any worse. I see no need to refute this one. It’s just not reasonable. I suppose some argument is necessary, though, so I’ll just say that corporate officers used to have to pay taxes on salary or bonuses before they could give personal money to a campaign.  Now they don’t. Do you think that means they will give more or less money? Also, some previous corporate reluctance to contribute, even in states where allowed, was because general counsels worried about vagaries of the law, not because they were reluctant to pay for political persuasion.

All this said, in the end I believe I am following Mr. Greenwald’s recommendation to base our arguments on the First Amendment. Where I disagree, strongly, is his very conservative argument against taking outcomes into account.

Author: Glenn W. Smith

Glenn W. Smith has spent the past 30 years in journalism and politics, where he’s made a name for himself as a writer, campaign manager, activist, think tank analyst and, as Daily Kos founder Markos Moulitsas says, a “legendary political consultant and all-around good guy.” “There’s no one like him,” says author George Lakoff. CNN commentator Paul Begala says, “He has unmatched experience, a graceful pen (or pixel nowadays) and deep insight into the best and worst of us.” Novelist Sarah Bird speaks of his “lucid and lyrical” prose. And, she says, he’s fun. Huffington Post founder Arianna Huffington says Glenn writes with “grace and abundant humor” and “uses his colorful experiences in Texas to enlighten us all.”

Smith led Ann Richards’ successful 1990 campaign for Governor of Texas. He worked for former Texas Lt. Gov. Bill Hobby and U.S. Senator Lloyd Bentsen. Earlier, Smith was a political reporter for the Houston Chronicle and the Houston Post. He’s coordinated national campaigns for groups such as In 2004, he authored the highly acclaimed book, The Politics of Deceit: Saving Freedom and Democracy from Extinction. He also wrote Unfit Commander, a book that detailed George W. Bush’s mysterious disappearance from military service.

In 2004, Smith was featured in the film, Bush’s Brain, a documentary about Karl Rove. Smith provided commentary on Rove’s role as then-President Bush’s senior advisor. He has made numerous media appearances with Chris Mathews on Hardball, Joe Scarborough, Brit Hume, and many others. He writes a regularly for top national web sites, including FireDogLake and Huffington Post.

As a senior fellow at George Lakoff’s prestigious Rockridge Institute in Berkeley he studied, wrote and taught on the power of metaphor and narrative in political communications. He also lectured on religion and politics at the Starr King School for Ministry in Berkeley. As a sponsor and organizer, he has pulled together numerous national events with progressive religious leaders. He also organized a celebration of Dr. Martin Luther King at Riverside Church in New York City as well as “Freedom and Faith” bus tours, which was a nationwide campaign for social justice and progressive values.

Smith’s play, Double Play, which explored American Western myths and legends, was held over to sold-out audiences. He’s even written and performed songs in the Americana tradition, such as his best-known song, “Helping Marty Robbins,” a tribute to his hometown, Houston.

Most recently, Smith is the creator of DogCanyon, a political and cultural web site covering state, national and global issues from a Texas perspective. DogCanyon is an exhilarating and unique site that gets the connections between politics and culture and explores both the personal side of politics and the ups, down, craziness and beauty of “life its ownself,” as humorist Dan Jenkins would say. DogCanyon offers heartfelt personal essays, hard-hitting political analysis, and, most importantly, laughs.

As Paul Begala said, Smith writes in “the finest, firmest, fearless tradition of Texas essayists like Molly Ivins.”

10 thoughts on “Glenn Greenwald: Smart Guy, but Wrong on Court’s “Citizens United” Decision”

  1. Mr. Greenwald is ignoring the most basic principle of all: a corporation is an economic arrangement licensed by the state and exempted from normal principles of economic equity (e.g., all owners of a company have responsibility for its debts) for the pragmatic reason that doing so may result in greater prosperity among the people of a commonwealth. It is not a person, not even remotely so in the eyes of the people who made the American Revolution and established our government. Not only do we have the negative evidence that defense of the rights of corporations appear nowhere in the Constitution itself and nowhere in the writings of its defenders (e.g., The Federalist Papers); we also have the positive evidence that in the treatment of the one big corporation that they knew, the East India Tea Company, revolutionaries had no scruples about destroying its property to enhance the rights of human beings — and nowhere do the Framers of the Constitution indicate that they disagree with that judgment. Nor when the 14th Amendment (which was used to justify the Santa Clara declaration that corporations were protected form state regulation) did any of its promoters ever refer to the protection of corporate rights as one of their objectives; it was touted entirely in terms of protecting the human beings who had been freed from slavery. People are people entitled to Constitutional protections; legal fictions are not. How much more of a basic principle do we need than that?

  2. There is so much in the Constitution that makes clear who “persons” are. For example,they are the ones who can accuse you of something, and you have a right to confronted him/her on he stand, etc. How do you confront a corporation on the stand? Persons are the ones who have brains, can think, feel, make their own decisions, express their personal feelings, vote. Corporations do not have brains. They do not think, feel, make decisions or express anything, and they cannot vote. I am additionally offended by the notion that I could be an investor in a corporation (perhaps my IRA) with a particular business goal, and all of a sudden us stock holders are subverted while the board of directors decides to put $1 billion in a candidate race instead of in my dividends. But I, as a stock holder, never had a voice. This makes me crazy.

    1. corporations do not have brains

      Boy, is that ever true. The idea of treating corporations as persons makes me crazy. It’s science fiction, except it’s not science and it’s not fiction. It’s a disaster.

  3. I’m no lawyer and perhaps that is why there is little in Greenwald’s arguments that I find agreement with. Especially the argument the we are already screwed because corporate influence is already so powerful how could it get any worse. How incredibly cynical can he get?

    Somehow though, he does finally meander around to what I assume is a conclusion and remedy that you, Glenn, and correct me if I’m wrong, and I, can find a bit of common ground with, whatever one’s reading of the 1st Amendment is,

    “Isn’t it far more promising to have the Government try to equalize the playing field through serious public financing of campaigns than to try to slink around the First Amendment — or, worse, amend it — in order to limit political advocacy?”

    As political as the Supreme Court has gotten, I believe, the only way to ultimately level the playing field is with total public financing of campaigns.

  4. The key flaw in Greenwald's reasoning on this matter is that he equates a corporation with an 'association' of the type held to be protected by the First Amendment. This spurious tenet is carried to its logical conclusion in his arguments. That is why, even though he does not refute (and even expresses sympathy for) the "corporations are not persons" argument, he feels compelled to defend the decision.

    I have no idea why he thinks an employment scenario qualifies as free association in any way similar to joining a political action group. It's quite clear to me that the "membership" in a corporation (on which one's livelihood depends, and in which one typically would have zero influence on how corporate money is spent in politics) is not anything like the type of associated created when citizens pool their time, resources, and expertise for the express purpose of achieving some political aim.

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