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March 2012

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Why SMBs Should Back an Amendment Overturning Citizens United

by Glen Emerson Morris
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With increasing frequency, bills are being introduced in Congress that would severely jeopardize the ability of SMB advertisers to profitably conduct business on the Internet. The details may differ, but the bills do have some things in common, they're sponsored by special interests, and they're long on draconian provisions and short on due process. SOPA and IPPA are just the most recent examples of this type of bill, there are more on the way. A lot more.

The Citizens United decision gave corporations the right to make unlimited donations to politicians and legally established the legal personhood of corporations. This decision essentially places the entire US political system up for auction and limits bidding to the truly high rollers. As expected the 2012 elections set off a bidding frenzy by lobbyists on a scale never seen before, and with an effectiveness never seen before, either.

The special interest lobbyists have developed a fast track legislative process that provides all the debate and due process of a drive by shooting. The method is simple. Write a law that favors your industry at the expense of everyone else, then donate millions to Congress for a "rush" piece of legislation. Congress can be counted on to stack the hearings with favorable testimony from the bill's sponsors, and limit the opposition's presence and viewpoint (a recent Congressional hearing on birth control failed to have a single woman give testimony). This method would have worked for SOPA and PIPA except the laws threatened Google and other companies that can notify millions of people hourly of pending legislation, and they did.

Now that Citizens United is the law of the land we can expect more special interest laws that limit rights and stack the deck in favor of the large corporations over SMBs and individuals. And the deck is already well pretty stacked. In many ways, the business environment for SMBs in America is no better than that in many banana republics. It's certainly a far cry from a few decades ago. Consider the following areas.

Arbitration not court
A recent decision by the Supreme Court upheld the right of corporations to require customers to agree to binding arbitration as a condition of business. The decision doesn't require the arbitration be independent, or even neutral. This decision effectively removes corporations from the rule of law.

Bottom line: You can't sue large corporations that cheat you anymore.

Unilaterally revisable contracts
Many telecoms include a provision in their contracts that gives them the right to revise the terms of the contract at any time, and with no advance notice. The courts have upheld this practice, so the classic definition of a contract specifying exactly what both parties owe each other is out the window. A SMB has to pay their phone bill, but the telecom doesn't to provide the service for it.

Bottom line: These days contracts commit you to do things for large corporations, but they do not commit large corporations to do things for you.

Sealed Records
For most of the industrial age businesses of all sizes could make decisions based on legal precedence. With arbitration records sealed (considered corporate property), there's no body of case law available to SMBs to base decisions on.

Bottom line: Justice is done in the dark, in back rooms, and SMBs aren't invited.

Since the Citizens United decision was handed down, some of larger corporations have already started siginicantly pushing the envelope on what is legal, and what you can get away with.

EBay's PayPal recently announced that they would begin holding all payments made to eBay sellers by buyers for 21 days. PayPal made it clear that their new terms don't require them to pay interest on the 21 day loan their customers are now forced to give them. The change will make PayPal millions in interest yearly, all coming at the expense of eBay sellers. Tens of thousands of eBay sellers will be adversely affected, and eBay will no longer be a place for people desperate to raise quick cash.

If PayPal gets away with this it may start a trend. It would be quite possible for us to wake up some morning to find that the major banks have paid Congress to let them do the same thing, hold all checks for 21 days. It might be illegal for that to happen now, but it will only take one more special interest bill to change that. (I'll bet that some banks will offer businesses quick loans at high interest rates to tide them over as they wait three weeks for their customers' checks to clear.)

On the other hand, it is also possible that the public will have finally had enough of rampant political corruption. The rationale for the Supreme Court's Citizens United decision is delusional and the public knows it.

The Constitution makes no mention of corporations. It gives them no rights at all. No law ever passed by Congress gave corporations the same rights as individuals. And even more importantly, where was the public's voice when corporations were given legal personhood? Where was the debate?

In addition, there's a basic hypocrisy to the large corporation's positions. Corporations want all the rights of an individual, but none of the accountability. They don't want to pay taxes. They don't want to be regulated. And above all, they don't want to be punished. If the Citizens United decision stands, the mega-corporations will likely get all they want, but it's not absolutely certain it will stand.

Groups opposing the Citizens United decision claim 85% of the public is against the ruling. If correct, a Constitutional amendment overturning Citizens United is a real possibility. At any rate, it's a necessity.

It's clear that the Citizens United decision, and the general level of political corruption it represents, threatens the very core of American democracy. Things have reached a crisis point. The public's approval rating of Congress in the lowest in history, and it's clear that a majority of the public no longer sees the American government as legitimate.

For the sake of our democracy, Advertising & Marketing Review is supporting a Constitutional amendment in 2013 to end corporate financing of politics and end corporate personhood. We encourage you to do the same. Let your state and national politicians know they have to take sides, and if they're not on the public's side, vote them out of office.


Glen Emerson Morris was a senior QA Consultant for SAP working on a new product to help automate compliance with the Sarbanes-Oxley law, an attempt to make large corporations at least somewhat accountable to stockholders and the law.
He has worked as a technology consultant for Yahoo!, Ariba, WebMD, Inktomi, Adobe, Apple and Radius.

Copyright 1994 - 2011 by Glen Emerson Morris All Rights Reserved ' keywords: Internet advertising, Internet marketing, business, advertising, Internet, marketing. For more advertising and marketing help, news, resources and information visit our Home Page.

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