Why Trump’s love of eminent domain should concern patent owners

By Peter Harter & Gene Quinn
February 8, 2016

Mr Donald Trump New Hampshire Town Hall on August 19th, 2015 at Pinkerton Academy in Derry, NH by Michael Vadon. CC-BY-SA-2.0.

Donald Trump New Hampshire Town Hall on August 19th, 2015 at Pinkerton Academy in Derry, NH. By Michael Vadon. CC-BY-SA-2.0.

The most tweeted segment of the Republican debate in New Hampshire Saturday evening was the tête-à-tête between Jeb Bush and Donald Trump on the topic of eminent domain. Twitter’s head of politics commented to ABC Digital 538 (that’s Nate Silver’s convergence of big data, broadcast politics and sports) that the eminent domain fracas enjoyed the most traffic especially with regard to the boos Trump received from the audience.

Trump argued at the New Hampshire debate that our nation’s infrastructure would not happen without eminent domain. That’s legal talk for the government stepping in and taking someone’s private property and paying compensation. A forced sale that usurps property rights. The intellectual property analog may be a compulsory license.

Trump bragged that if one is smart they could do very well by eminent domain, making 3 to 4 times fair market value. It is unclear whether patent owners see the world through the same rose-colored glasses when it comes to the usurpation of exclusive rights. Infringers take patent property and use the courts and the United States Patent and Trademark Office (USPTO) to delay payment, attack the patent’s validity and or diminish the value of the patent and reputation of the owner and or sector of technology. The usurpation of property rights has not lead to a three-fold increase in fair market value for patent owners. Quite the opposite has happened in fact.

Bush attacked Trump for taking the property of a grandmother in Atlantic City to build a parking lot for limos. Surprisingly Trump did not counter that Bush’s brother, President George W. Bush, used eminent domain to build a new baseball park for the Texas Rangers years before he entered into politics. Perhaps Trump was not ready with opposition research during the debate. The day after the debate while appearing on ABC’s This Week, Trump did point out that George W. Bush had used eminent domain for the Texas Rangers stadium project.

Eminent domain is something that Congress violently booed and in a virulently bi-partisan manner. You don’t see Congress this energized unless the country to going to war, yet Congress directed their anger at the US Supreme Court after their 5-4 City of New London v. Kelo decision in 2005 where the Court sided with the City of New London, Connecticut and their economic development plan that complied with the guidelines set out by the State of Connecticut against Ms. Susette Kelo, a single woman that had restored a dilapidated home, painted it pink, and supported herself as a first responder (EMT turned nurse).

Kelo’s lawyers at the non-profit Institute for Justice and their amicus supporters pointed out that the City of New London wanted to redevelop an area gone long in the tooth due to a closed US Navy base and replace Ms. Kelo’s home with a corporate office park for Pfizer and a Ritz-Carlton hotel. Imagine if this happened today.

It might not be able to happen with respect to real property today, because after all the Supreme Court does keep a closer eye on shifting public sentiment than they would likely admit, but this type of taking of property rights for the benefit of one private entity over another is certainly happening in the patent world. This may well be why proponents of a weaker patent system and eroding patent rights openly question whether patents are really property rights. Never mind the long line of Supreme Court cases that equates patents to real property and that statue that says patents are property.

“Economic development” as a reason for eminent domain has been one of the weaker reasons for government taking of private property because it can be exploited for racial, class or crony purposes. Justice Sandra Day O’Connor wrote the split decision with some regret finding that the state’s rights sense of justice should prevail. That is if the State of Connecticut wanted to run the property rights a certain way and the City of New London followed that state plan then an individual could see their private property transferred to another private interest. Bear in mind that this new private interest could improve the look and feel of a dilapidated place, perhaps also increase tax revenue, and or provide some other activities to benefit the public (e.g. a park, paving roads, installing sewers, lighting etc.). Such eminent domain has been criticized for using the excuse of “blight” to move one kind of people out of an area to let another kind in and on the cheap.

While economic development as a justification for eminent domain has been severely criticized, there does not seem to be a similar criticism associated with stripping property rights from patent owners in order to allow technology adopting infringers to distribute what they did not themselves innovate without paying the property owner for the privilege. Senator Ted Cruz (R-TX) promised in an earlier Republican debate to defend constitutional principles wherever they were under assault, but as yet he has been relatively noncommittal on patent matters despite patents being specifically authorized within the Constitution itself. Cruz, a member of the Senate Judiciary Committee, in 2015 did vote against S.1137, The PATENT Act, in Committee. Cruz voted against this patent reform bill but with the caveat that he may later support it if certain changes were made.

When the Supreme Court decided City of New London v. Kelo, African-American Democrats from urban areas locked arms on the steps of the US Capitol with white Republicans from rural communities in strenuous protest against this Court decision. Congress tried to reduce the impact of this Court decision by floating legislation restricting how the federal government could use eminent domain and how states could use federal funds for same. President George W. Bush in 2006 issued an executive order along the same lines – restricting the use of eminent domain for real public benefit and not private gain.

So far little serious effort has been made in Congress to turn the tide, which has overwhelming been against patent owners over the last decade. Senator Chris Coons (D-DE) and Senator Dick Durbin (D-IL) have submitted alternative, bi-partisan legislation (supported by Republican Senators Vitter and Cotton) that charts a very different course, but the power base on both sides of the aisle are lined up behind further reforms that would continue to weaken patent rights and the patent system.

Trump’s uncle, John G. Trump, was an inventor and patent owner recognized by President Truman for his creative work on radar and later regarded for his work while at MIT on cancer lasers. Trump has made much money from his own self-made brand (think Kardashian) as well as enforcing trademarks on aromatic products bearing names like Park Avenue. This may lead the intellectual property community to believe that a President Trump would be good for rights owners. But Trump’s view of the use of eminent domain to strip real property rights from property owners should be a red flag for intellectual property owners, particularly patent owners. If he holds this view relative to real property what will his views be with respect to patents? Can the U.S. patent system withstand a President that views it as desirable to take property rights away in the name of private sector commercial gain?

The Author

Peter Harter

Peter Harter has over 20 years of experience bridging the ecosystems of technology, business, law, venture finance and politics by providing advice to management, boards and investors on legislation, regulation, court cases, media, standards, treaties, political campaigns, capital, property and labor. As the founder of The Farrington Group, Peter advises public and private companies, investors, startups and nonprofits on risks from legislation, regulation, court cases, standards, politics, and more. He also helps identify relationships for sales, finance and and executive recruitment. Peter’s career began in 1993 as an Internet lawyer. He broadened in Silicon Valley as head of global government affairs for Netscape and EMusic.com and in business development and sales for Securify. He deepened his experience in policy in Washington, DC, lobbying on patent reform for Intellectual Ventures. Peter has expertise in the areas of patents, copyrights, open source, cybersecurity, export controls, voting, antitrust, nuclear energy, big data, and medical research reform.

To contact Peter please connect with him via LinkedIn.

Peter Harter

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 47 Comments comments.

  1. Edward Heller February 8, 2016 3:12 pm

    As I remarked in another thread, of copyrights fields are now largely subject to eminent domain through compulsory licensing and regulated royalty payments.

    Congress has the power to do this with patents as well. It could, for example, end patent litigation by providing a standard royalty to every inventor, and to pay for this, tax American business for the privilege of using US patents.

    Now, would that be constitutional — would that promote the progress in the useful arts? Good question.

  2. Anon2 February 8, 2016 4:52 pm

    This post is illustrative of the taking of a position along the spectrum between two opposites:

    Individualism Statism

    Although seemingly clear cut at first, the view revealed may be mixed: I. a strong leaning toward Statism but II. in furtherance a particular individual.

    Not exactly the same thing as adherence to “individualism” as the founding father’s would have understood it to mean….

  3. staff February 8, 2016 5:44 pm

    ‘similar criticism associated with stripping property rights from patent owners in order to allow technology adopting infringers to distribute what they did not themselves innovate without paying the property owner for the privilege’

    You are correct, but it goes deeper. This is a fundamental property rights issue. The US Constitution recognizes the ‘exclusive rights’ of inventors, yet how can they be exclusive when infringers are allowed to use the invention without the inventor’s consent? This is no less than a property grab by the wealthy and well placed, leaving the rest of us out in the cold with no viable way to commercialize our inventions so we must sit on the curb and watch as giant multinationals ransack and loot our property. Show us a country with weak or ineffective property rights and we’ll show you a country with a weak economy and high unemployment. Does this sound familiar? When government sits idly by as property rights are trampled on they encourage property owners to take matters in their own hands and feed distrust and disrespect for government and law. This is how societies degrade and crumble.

    Don’t believe the lies of Chinese and large multinational invention thieves. Just because they call it reform, doesn’t mean it is.

    For more information please visit us at https://aminventorsforjustice.wordpress.com/category/our-position/
    or, contact us at tifj@mail.com

  4. Paul Morinville February 8, 2016 6:48 pm

    I saw that Trump commented a few weeks ago that he wanted strong IP rights. His experience is with trademarks and copyrights, which I assume he wants to be strong. He did not comment on patents specifically – I don’t think he was asked.

    I’d imaging at least some of his hotels were sued for or received demand letters related to wi-fi networks. I’d like to hear him comment more directly on his view of patents within the world of IP he wants strengthened. My personal bet is that he would weaken them.

  5. Edward Heller February 8, 2016 8:21 pm

    staff, but if patent owners were compensated for compulsory licenses?

    I see a big difference between compulsory licensing from a constitutional point of view and completely stripping a patent owner of his patent with a day in court and without a trial by jury.

  6. Night Writer February 9, 2016 6:57 am

    I think it comes down to whether Trump understands tech/business. He probably doesn’t. If he takes the time to figure out how things are actually working, then he will become a big supporter of the patent system like Fiorina.

    If he is ignorant and lazy like Obama, then he will support Google’s view. (But Obama sure can process those abstract words.)

  7. Randy Landreneau February 9, 2016 10:48 am

    Maybe if he apologizes to Fiorina for insulting her looks, she’ll consider being his Vice President.

  8. A Rational Person February 9, 2016 11:10 am

    The Kelo decision is one of the worst Supreme Court decisions in my lifetime.

    Through a series of cases dealing with allegedly combating urban blight, the liberals on the Court had so rewritten the Takings Clause of the 5th Amendment that in Kelo the Court, based on its prior Takings Clause decision, allowed a taking of private property from one individual and transferring it to a private corporation based on the fact the property would be more economically productive in the hands of the corporation. By this “logic” an individual’s property could be taken at any time and transferred to a corporation, because virtually no home owner could ever prove that the land was more economically productive in his/her hands than in the hands of a corporation.

    The Kelo decision effectively gutted the “public use” restriction on the Takings Clause and effectively said that individuals only “own” private property to the extent that the corporation does not want their property and/or is willing to pay a government official to take the individual’s property.

    In other words, the Court explicitly allowed one of the kind of takings that the 5th Amendment’s Taking Clause was supposed to prevent.

  9. Night Writer February 9, 2016 1:07 pm

    @7 Randy Landreneau

    Wow! That would be great for patents. She is a very passionate supporter of patents.

  10. Anon February 9, 2016 1:28 pm

    RAP @ 8,

    Nice summation.

    Bookend that bit of “Big Corp” law with Citizen’s United and we can see the level of government capture (and yes, this does sound like some type of “conspiracy theory,” but you are not really paranoid if they really are out to get you 😉 )

  11. A Rational Person February 9, 2016 1:55 pm

    Anon@8

    Citizens United heads my list of terrible Supreme Court decisions during my lifetime. It’s even worse than Kelo, in part, because in many (but not all) states, the Kelo decision was effectively rendered moot by state laws passed in reaction to Kelo. In contrast, Citizens United cannot be rendered moot by either the states or Congress. So it can only be gotten rid of by changing the make-up of the Court or a constitutional amendment.

    As a patent professional, KSR, Mayo, Myriad and Alice are, of course, also on my list of terrible Supreme Court decisions.

  12. nat scientist February 9, 2016 2:15 pm

    The only thing Trump has to do with patents is his being a patent medicine salesman with a charlatan-enabler media selling free content on his schedule.

    “It is difficult to get a man to understand something when his salary depends upon his not understanding it.” -Upton Sinclair, Jr

  13. Individualism reigns in USA February 9, 2016 3:11 pm

    The 2005 Supreme Court decision was of deep concern to me. At what point then, does the law STOP taking an individual’s property for the gain of another?

    Forcing the sale of property used to be the recourse of the “robber barons” and mobsters. No longer. Now they have a “legal” way that doesn’t involve physical harm.

  14. Edward Heller February 9, 2016 3:15 pm

    @12, Rational, the do-gooder libs would really like to nationalize drug patents in the name of the public good. Don’t get them thinking along those lines.

  15. Edward Heller February 9, 2016 3:20 pm

    @11, Rational, how has Citizens United affected you personally?

    Secondly, the press are composed of companies and are held by large corporations. Moreover, the press has always represent the views of their owners.

    If freedom of the press ever meant anything, it meant that companies can speak.

  16. Gene Quinn February 9, 2016 4:04 pm

    Edward-

    I suspect Sanders and his supporters are already thinking about what they can do to strip patent rights away to push down drug prices.

    -Gene

  17. A Rational Person February 9, 2016 5:06 pm

    Edward@15

    First, the decision rests on

    “@11, Rational, how has Citizens United affected you personally?”

    By having to live in a country where some types of bribery of politicians is now officially legal, I now live in a country where corruption of government officials is legal.

    By living in a country in which corporations who have more money now legally have the right to more speech than individuals who have less, which means that I do not have as much right to speech as corporation worth billions of dollars.

    By having to choose between viable candidates for offices that are all beholden to corporations.

    By having a legal fiction, i.e., corporation treated as the equal, and given its monetary resources to spend on bribery of elected officials, as more than the equal, of me and every other human being.

    I could go on, but my favorite summation of how horrendous the Citizens’ United decision can be found in the dissenting opinion of Justice James C. Nelson of the Montana Supreme Court in the Western Tradition case:

    http://electionlawblog.org/wp-content/uploads/MT-expenditures-decision.pdf

    Here’s just part of Justice Nelson’s eloquent dissent:

    . . . I absolutely do not agree that corporate money in the form of “independent
    expenditures” expressly advocating the election or defeat of candidates cannot give rise to corruption or the appearance of corruption. Of course it can. Even the most cursory review of decades of partisan campaigns and elections, whether state or federal, demonstrates this. Citizens United held that the only sufficiently important governmental interest in preventing corruption or the appearance of corruption is one that is limited to quid pro quo corruption. This is simply smoke and mirrors. See Citizens United, 130 S. Ct. at 961 (dissenting opinion). In the real world of politics, the “quid pro quo” of both direct contributions to candidates and independent expenditures on their behalf is loyalty. And, in practical effect, experience teaches that money corrupts, and enough of it corrupts absolutely. See e.g. Caperton, 556 U.S. 868, 129 S. Ct. 2252.

    *****

    Lastly, I am compelled to say something about corporate “personhood.” While I
    recognize that this doctrine is firmly entrenched in the law, see Bellotti, 435 U.S. at 780 n. 15, 98 S. Ct. at 1418 n. 15; but see 435 U.S. at 822, 98 S. Ct. at 1439-40 (Rehnquist, J., dissenting), I find the entire concept offensive. Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and
    they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.

  18. Anon February 9, 2016 5:29 pm

    Did I read that correctly? First Amendment only for corporations…?

  19. Edward Heller February 9, 2016 5:32 pm

    18. Rationale, then you do not disagree that the press have always been companies and the press has always been biased according to the biases and political beliefs of their owners. Our founding fathers knew that, and yet put freedom of the press into our Constitution, believing that when multiple voices speak, and with the knowledge that everybody that speaks has a viewpoint, that the people can listen and make up their own mind about the truth and what they should do.

    The real problem happens when we censor, and use government power to suppress speech. For a very long time, only the major players like CBS, NBC and ABC commanded the airwaves. They represented the viewpoint of their owners, and government power was used to suppress alternative views. It is hard to remember what it was like back in those days now that we have maximized press freedom, where everybody speaks on the Internet. It is amazing how much better life is now that we have true freedom of the press.

    I cannot even imagine living in the world without freedom of the press and freedom to speak by everybody. It is important. It is necessary for a free government, absolutely necessary.

  20. A Rational Person February 9, 2016 5:51 pm

    Edward19,

    Yet, back in the “bad old days” when CBS, NBC and ABC “commanded the airwaves”, control of the news media was more dispersed. For example, as of 2012, 6 corporations controlled 90% of the media, compared to 50 companies back in 1983:

    http://www.businessinsider.com/these-6-corporations-control-90-of-the-media-in-america-2012-6

  21. Edward Heller February 9, 2016 6:06 pm

    A rationale, but you presume that the “airwaves” still have a virtual monopoly on news and opinion.

    It is the Internet now — and people — communicating on blogs just like this one.

    The viewership of broadcast news is down. Newspapers are folding left and right. Cable is flourishing — now. But the the internet will eventually terminate these programs as well as the rise of on-demand news grows. Click on a story you want to hear, and there its is.

  22. Anon February 9, 2016 6:33 pm

    There appears to be confusion between speech and money.

  23. A Rational Person February 9, 2016 8:31 pm

    Edward@21

    Then by your logic, the impact of restrictions on the amount that can be spent campaigning on television, major newspapers, etc. should have minimal impact on free speech.

    Corporations would not be stopped from advocating for candidates on their corporate web-sites, just like individuals can do.

  24. A Rational Person February 10, 2016 10:29 am

    Edward@15

    Now some questions for you:

    Do you agree with the Court in Citizens United that, “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy”?

    Do you agree with the Court in Citizens United t “that independent expendi-tures do not lead to, or create the appearance of, quid pro quo corruption”?

    Do you think that Senator Rubio honestly believes “that if the U.S. opens the market for sugar, he says, ‘other countries will capture the market share, our agricultural capacity will be developed into real estate,’ and “then we lose the capacity to produce our own food, at which point we’re at the mercy of a foreign country for food security.’?

    http://www.wsj.com/articles/rubio-and-big-sugar-1446769246

    Do you disagree with the following analysis by that noted lefty mouthpiece, the Wall Street Journal Editorial Page:

    “So let’s see: If Americans don’t pay double the world price for sugar, Pepe Fanjul will sell his sugar acreage to home builders, who will pave over Florida and put us at risk of extortion from . . . Brazil? This national security line doesn’t hold up for rare-earth minerals from China used for national defense, much less a basic farm commodity.

    Mr. Rubio knows this, but he’s also close to Florida’s biggest sugar producers. One of the largest campaign contributors over his career has been Florida Crystals, which is a Fanjul family company. On this issue Mr. Rubio is allied not with the tea party but with Sen. Al Franken (D., Minn), the progressive hero who fronts for wealthy sugar-beet interests.”

    Do you think that Al Franken’s stand with the wealthy might have something to do with the sugar-beet interests contributions to his campaign or the threat they would contribute to another candidate if he does not vote the “right way” on sugar subsidies?

  25. Edward Heller February 10, 2016 11:39 am

    a rational, I believe that the government must stay out of the business of regulating who may speak. Companies have always had the right to speak — they are called the press. Their voice has always been much louder than you or me.

  26. Night Writer February 10, 2016 11:42 am

    Great posts rational person. I agree with you. I don’t remember the case exactly, but there is a case about the trust (early corporation) of Dartmouth where it is clear that the courts viewed any artificial entity with lots of money as inherently capable of creating mischief. And, the founding father were hostile to trusts because they were threats to individual liberty because they had more resources to fight an individual.

  27. Anon February 10, 2016 12:17 pm

    Mr. Heller,

    You are taking a purposefully slanted view to the Founding Fathers view of corporations as citizens.

    You keep on returning to a strawman of “can speak” and you keep on avoiding the very real issue of money as “speech.”

    I find your posts neither persuasive, nor informed.

  28. A Rational Person February 10, 2016 12:31 pm

    Night@26

    Thanks. I wish more member of the Federal Circuit were willing to act like Justice Nelson did in Western Tradition and point out the many flaws in the Mayo, Alice and Myriad decisions they are forced to apply.

  29. Night Writer February 10, 2016 1:29 pm

    Ned, what? You have no idea what you are talking about. You are likely spurring forth nonsense to please clients. The founding fathers would by all the evidence think that corporations were inherently bad. That anything greater than the individual needed tight controls on it. All the evidence says this. There is NO evidence that the founding fathers would support Citizens United. None. Dartmouth Trust is evidence.
    I absolutely agree with the comments that raising corporations to personhood is a violation of basic human dignity. A human rights violation.

  30. Edward Heller February 10, 2016 2:24 pm

    anon, did I ever say anything about money? I said, “Who.”

    Your guys seem absolutely blind to what is going on here. When anyone is denied his right of free speech, either individually or as part of larger groups, we all suffer.

  31. Edward Heller February 10, 2016 2:28 pm

    Night, I think the FF were against monopolies — government power in the hands of companies. The East Indies Company comes to mind.

    And, Night, you simply cannot reconcile that freedom of the press is in the Bill of Rights. The freedom of large entities to speak is clearly protected.

  32. A Rational Person February 10, 2016 3:51 pm

    Edward@31

    And yet Montana, one of the most libertarian states in the country, had been living very well and quite free with its 1912 statute that prohibited corporate contributions to political campaigns for almost 100 years. Nevertheless, the Supreme Court threw out this statute as unconstitutional based on its decision in Citizens United.

    The voters of Montana in 1912 well understood how large corporations could corrupt the politics of a state, particularly of a state with a small population:

    From the majority opinion in Western Tradition:

    Ҧ22 Third, the Montana law at issue in this case cannot be understood outside the context of the time and place it was enacted, during the early twentieth century. (Montana became a state in 1889.) Those tumultuous years were marked by rough contests for political and economic domination primarily in the mining center of Butte, between mining and industrial enterprises controlled by foreign trusts or corporations. These disputes had profound long-term impacts on the entire State, including issues regarding the judiciary, the location of the state capitol, the procedure for election of U.S.
    Senators, and the ownership and control of virtually all media outlets in the State.

    ¶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) 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.

    ¶24 In response to the legal conflicts with Heinze, in 1903 Anaconda/Standard closed down all its industrial and mining operations (but not the many newspapers it controlled), throwing 4/5 of the labor force of Montana out of work. Toole, Montana, An Uncommon Land, 206. Its price for sending its employees back to work was that the Governor call a special session of the Legislature to enact a measure that would allow Anaconda to avoid having to litigate in front of the Butte judges. The Governor and Legislature capitulated and the statute survives. See e.g. Patrick v. State, 2011 MT 169, ¶¶ 17-23, 361 Mont.
    204, 257 P.3d 365.

    ¶25 W. A. Clark, who had amassed a fortune from the industrial operations in Butte, set his sights on the United States Senate. In 1899, in the wake of a large number of suddenly affluent members, the Montana Legislature elected Clark to the U. S. Senate. Clark admitted to spending $272,000 in the effort and the estimated expense was over $400,000. Complaints of Clark’s bribery of the Montana Legislature led to an investigation by the U. S. Senate in 1900. The Senate investigating committee concluded that Clark had won his seat through bribery and unseated him. The Senate committee “expressed horror at the amount of money which had been poured into politics in Montana elections . . . and expressed its concern with respect to the general aura of corruption in Montana.” Toole, Montana, An Uncommon Land, 186-94.”

    ¶26 In a demonstration of extraordinary boldness, Clark returned to Montana, caused the Governor to leave the state on a ruse and, with assistance of the supportive Lt. Governor, won appointment to the very U. S. Senate seat that had just been denied him. Toole, Montana, An Uncommon Land, 192-93. When the Senate threatened to investigate and unseat Clark a second time, he resigned. Clark eventually won his Senate seat after spending enough on political campaigns to seat a Montana Legislature favorable to his candidacy.

    ¶27 After the Anaconda Company cleared itself of opposition from Heinze and others, it controlled 90% of the press in the state and a majority of the legislature. C. B. Glasscock, The War of the Copper Kings, 290 (Grosset & Dunlap, N.Y. 1935). By 1915 the company, after having acquired all of Clark’s holdings as well as many others, “clearly dominated the Montana economy and political order . . . [and] local folks now found themselves locked in the grip of a corporation controlled from Wall Street and insensitive to their concerns.” Michael Malone and Richard Roeder, Montana, a History of Two Centuries, 176 (Univ. of Wash. Press, Seattle 1976). Even at that time it was evident that industrial corporations controlled the state “thus converting the state government into a political instrument for the furthering and accomplishment of legislation and the execution of laws favorable to the absentee stockholders of the large corporations and inimical to the economic interests of the wage earning and farming
    classes who constitute by far the larger percentage of the population in Montana.” Helen Fisk Sanders, History of Montana, Vol. 1, 429-30 (Lewis Pub. Co. 1913).

    ¶28 In 1900 Clark himself testified in the United States Senate that “[m]any people have become so indifferent to voting” in Montana as a result of the “large sums of money that have been expended in the state. . . . ” Toole, Montana, An Uncommon Land, 184-85. This naked corporate manipulation of the very government (Governor and Legislature) of the State ultimately resulted in populist reforms that are still part of Montana law. In 1906 the people voted to amend the state Constitution to allow for voter initiatives. Not long thereafter, in 1906 this new initiative power was used to enact reforms including primary elections to choose political candidates; the direct election of United States Senators; and the Corrupt Practices Act, part of which survives as § 13-35-
    227, MCA, at issue in this case.”

  33. Edward Heller February 10, 2016 3:56 pm

    A rational, did I or did I not say I made no comment about money? I think there is a difference between speaking and giving people money.

  34. A Rational Person February 10, 2016 4:23 pm

    Edward@33

    Case 1: Corporation gives candidate $1 million to make political ads, candidate spends $1 million for political ads.

    Case 2: Corporation spend $1 million for the same political ads.

    What is the practical difference between Case 2 and Case 1? The corporation has spent $1 million and the same ads are produced. The benefit to the candidate is the same and the amount spent is the same.

  35. Edward Heller February 10, 2016 7:00 pm

    Come on Rational. I said I was not talking here about giving money to the candidate. I think that is wrong, and is corruption per se. IIRC, the Supreme Court did not change the rule in this regard.

    And, I do not believe that hiring politicians to speak at corporate events at outrageous fees is anything else but corruption.

  36. Edward Heller February 10, 2016 7:02 pm

    A rational, I don’t know how many times I have had politicians hold us up for donations to his PAC before he would talk to us. I think that is corruption per se. But that is the way of Congress.

  37. Anon February 10, 2016 7:31 pm

    Mr. Heller,

    You want to stick your head in the ground and ignore the plain equivalences presented to you.

    The point is that you do NOT have to utter the words “money” to be speaking about what Citizen’s United is about.

    It is quite disingenuous to continue to act so Pollyanna.

  38. Edward Heller February 10, 2016 8:01 pm

    anon, I am concerned that everyone have a right to speak and I do not believe that one can say that a free press only meant individuals. If companies are categorically excluded, then the freedom of the press becomes no right at all.

    The focus on money is a red herring in my view. The total objective of prior legislation was to throttle free speech, not to restrain corruption. And it makes no difference in my view that big companies have a louder voice. The press always has had a louder voice, and it is important that we have as many loud voices as possible and that everyone have a right to speak.

  39. Night Writer February 10, 2016 11:17 pm

    The bill of rights protect freedom of speech for all entities? How can that be when there weren’t corporations when the bill of rights was written?

    Actually, the fact that the Bill of Rights refers to the press and individuals is a good hint that they did not include corporations.

    The fact is that all the evidence is that the founding fathers thought that large entities were mischief makers. Nothing in the Bill of Rights protects a corporation. How can you even think like that? A corporation is an artificial entity created by law. I think there are good arguments that I corporations are unconstitutional. Very strong arguments that corporations are unconstitutional.

    Simply ridiculous to think the founding fathers would think it is OK for a legal entity with assets billions of times greater than a single person to have the right to affect elections–ridiculous.

  40. Night Writer February 10, 2016 11:19 pm

    And, if you bother to read Dartmouth Trust you will see the key was the size. They felt that anything that was big was likely to cause mischief and should be tightly controlled. Roberts has simply fabricated nonsense that has no basis in the Constitution.

    Again, very strong arguments that corporations as they exist now are unconstitutional.

  41. Night Writer February 10, 2016 11:32 pm

    Ned >The press always has had a louder voice, and it is important that we have as many loud voices as possible and that everyone have a right to speak.

    Just ridiculous statements in the context of the Constitution. “Everyone” includes a legal entity? Actually, the key is the size. You see the founders understood that large assets meant that the entity was capable of oppressing individuals. That is the key.

    And, you can’t rope in Exxon with the press. Again ridiculous. The press’s business is information. That is not Exxon’s business. Again, no way would the founders think that corporations are Constitutional. They have been fabricated by the legislative branch based on what? Corporations violate individuals’ rights.

  42. Anon February 11, 2016 7:20 am

    Mr. Heller,

    With all due respect, it is the very view of “red herring” that is being challenged.

    Your desire to not focus on the money as the issue is a problem, because, quite frankly, money IS the issue.

    You continue to simply ignore the historical limitations that the Founding Fathers held in regards to juristic persons such as corporations. No one is saying that corporations have to be muzzled, so your “fear” is a strawman. What people are saying is that the very real world effects of unlimited money as “voice” have created the very thing that the Founding Fathers feared. We have the apparatus of “we the people” captured by that very same “unlimited money.”

    I would kindly suggest that you pause in pursuing what you want to be the issue under the spotlight and look at what every one else is saying is the issue under the spotlight. Let’s work our way through what you would label as a red herriing and then (if still necessary) address your concern about any person (juristic or otherwise) being muzzled.

  43. A Rational Person February 11, 2016 10:05 am

    Night and Anon,

    And we have not even addressed the issue, unaddressed in Citizens United, that a corporation funding a candidates political campaign could be controlled by a foreign government, a criminal organization, a terrorist organization, etc. hostile to the interests of the U.S. . . . .

    Also, as in Alice, Mayo, Myriad and KSR, in Citizens United the Supreme Court effectively made a major change in the law of the land based on no change in the Constitution and no change in any statute.

  44. Anon February 11, 2016 10:41 am

    A Rational Person,

    I would be “careful” with the “hostile to the interests of the U.S.” angle.

    By this I mean that even ordinary (and real) persons can also be hostile.

    Of course, the point of difference (and this I will likely agree with you if this is part of your viewpoint), is that there is abundant and meaningful action possible against an individual that may be hostile as opposed to a mere juristic person that is hostile.

    I think that it is eminently understood (and one of the drivers of the fears of the Founding Fathers) that a very real difference along this dimension exists. This is one of the reasons why the juristic person receives a “shorter leash” and is to be more constrained at the onset. And by “more constrained,” I do NOT mean have their rights quashed (so let’s not jump into the weeds chasing that ghost).

    Of course, on the separate line of thought concerning the judicial branch writing the statutory law that is patent law, we are in agreement – but let’s leave that to a different thread and focus here on the very real (and intended) differences between actual people and juristic people.

  45. A Rational Person February 11, 2016 12:26 pm

    Anon@44

    Actually my main “angle” with respect to “hostile interests” is that with a corporation, it is not always clear who really owns/controls the corporation.

    For example, the US has laws that prohibit foreign nationals from contributing to campaigns, but what if foreign nationals or even a foreign government has a controlling interest in a corporation making political contributions? That would seem to be a huge loophole in the campaign finance laws in light of Citizens United.

  46. Night Writer February 11, 2016 10:18 pm

    @44, 45: the foreign issue is big, but probably subsumed by the fact that the mechanism is supposed to be the individual voting and the individuals’ freedoms.

    Actually, the fact that there were trusts and they are not mentioned means they are not meant to be people and they are not meant to have rights.

    I notice that Ned hasn’t addressed this issue. Typical.

  47. Anon February 12, 2016 8:38 am

    Night Writer,

    I disagree with the view that “no” rights inure. There was recognition of “non-real” persons (juristic persons). But there was also recognition that these juristic persons did not have the full scope of rights as did real persons. I think the way forward (and the way to obtain Mr. Heller’s participation in the conversation) is to recognize that the concept of juristic persons does apply, but that the limits of that concept apply as well.