Free Speech at the Supreme Court

9 Sep

Obama’s speech tonight in front of Congress is important. But all I seem to do lately is write about Obama, so I’m going to dive into a bigger news event that happened today: the debate over corporate personhood and free speech at the Supreme Court today.

Before you groan and move on, if you are an activist, community organizer, or volunteer, hear me out and you may be surprised which side you end up on. The ACLU and NRA are on the same side on this one – that should tell you something.

The case in question involves Citizens United, a right-wing non-profit corporation that produced a mockumentary called “Hillary: The Movie,” just in time for the last election cycle. Because the subject of the movie was so obviously political, the Federal Election Commission determined it was political speech, and thus subject to campaign finance laws. Thus, it could not be shown, distributed, or aired near election time. Citizens United sued, saying they are unfairly blocked from distributing their product – thus where we are now.

Because campaign finance laws can be complicated and interesting only to John McCain, most news media outlets have not adequately covered this story. What coverage there has been has been nearly entirely hyperbolic, jumping straight to dire predictions of evil corporations destroying our democracy. For a move evenhanded overall analysis, I would recommend the Lehrer News Hour from today (not yet loaded as I write this). Or for a totally biased opinion from Ted Olson, who argued the case for Citizens United in front of the Supreme Court today, go here.

What little attention has been paid to this case has revolved around the unusual nature of the hearing today: it is a do-over the Court asked for, so it could consider a larger question. When the case was originally heard, it focused on narrow technical questions of whether the McCain-Feingold laws allowed web streaming of the movie. However, the Court asked the lawyers to reargue the case focusing on whether campaign finance laws should be applying at all. Thus the breathless cries of corporate dominance, in a world with no regulation and rampant bribery and scandal, and the reversal of 102 years of precedent.

Let’s consider a couple relevant facts before I tell you why free speech should be upheld here:

1) The laws the Supreme Court is looking at striking down are very narrow – indirect funding during a campaign. Corporate limits on direct funding of candidates would still apply. The question is not whether Ford can give $12 million to John Dingle (D-MI) to run for reelection. They still can’t. It’s whether Friends of the Earth can run ads 25 days before the election talking about how bad Rep. Dingle is to the environment.

2) Twenty-three (23!) states already allow corporations to spend unlimited amounts of indirect (soft) money 30 days out of an election in state and local races. There is no proof that those 23 states have any worse corruption than the other 27 states. Those 23 include well run states (Virginia) and poorly run states (California). The campaign finance laws seem independent of competence.

3) The precedent is not nearly as clear as many would argue. Congress did start regulating corporate donations to political campaigns in 1907. However, these laws were never really tested against the court until 1990 and 2003. Two cases in the last 19 years is hardly a large body of work, and McCain-Feingold is less than a decade old. Reversing some of its provisions would not be a great upset.

In my opinion, the Supreme Court should strike down large portions of McCain-Feingold, including these limits on corporate contributions. The Court has established as precedent that money is speech, because it takes money to be heard on our crowded airwaves and internets. Therefore, corporations should be treated as individuals (known as corporate personhood, by the wonks). Whatever limits we put constitutionally on individuals, should apply to corporations as well.

Why? Because corporations are nothing more than groups like-minded individuals. It is a legal framework that allows groups of people, with free speech rights, to better organize to achieve an objective. That objective may be to pump natural gas (Halliburton) or sell cars (Basil Ford) or do the Dems research dirty work (Brookings Institution). Whatever it is, as long as they pay taxes (i.e. are not a 501(c)(3) tax exempt corporation – different rules there), they are not allowed the same rights. As Chief Justice John Roberts pointed out today, why can ten individuals give $1000 each, and a partnership (LLP) of 10 individuals give $10,000, but a corporation can give nothing? Why should I surrender my right to free speech when I join a group? While Exxon may want to give money to Drill, Baby, Drill, other advocacy groups exist solely for the purpose of having their voice politically heard. Thus the ACLU and NRA on the same side.

But what of the naivety argument? That free speech sounds great, but giving corporations free rein will utterly distort the political process? I would argue that if you are worried about money influencing politics, there are bigger fish to fry. If I am Exxon, and want to drill, is it better to spend $8 million on advertising, with a small rate of return, or $8 million on lobbying the exact Senator on the exact committee I need to pass a bill. Likewise, some corporations are currently allowed political speech under different guises. Why can News Corp (Sean Hannity) or Disney (ABC) or General Electric (Rachel Maddow) have their blatant political speech heard, but not others? What about books on political subject matter? Most books are published by corporations – can Random House publish a new Keith Olbermann book within 30 days of an election? I don’t think we want to start regulating this kind of speech.

Corporations are just groups of persons. Regulate them under the same laws as the people who make them up.

4 Responses to “Free Speech at the Supreme Court”

  1. Colin Eager September 9, 2009 at 10:39 pm #

    “Corporations are just groups of persons. Regulate them under the same laws as the people who make them up.”

    I’d love to see this, but of course it’d go far beyond political contributions. As long as the groups of persons can be put in jail for the crimes committed by their corporations, I’m down.

  2. Ethan September 9, 2009 at 10:59 pm #

    Corporations can in principle exist indefinitely, people cannot. They are more than simply groups of like-minded people- as the entire RuUse debacle illustrated, I think.

    But as far as this case goes, I am in agreement with you.

  3. Brian Castner September 10, 2009 at 9:02 am #

    @ Colin: They can be already – witness executives at Enron in jail. Among others.

    @ Ethan: I don’t see the indefinite existence of corps as a reason to take away the free speech rights of the persons that temporarily make it up. And I avoided the example of ReUse specifically, because 501(c)(3) corporations pay no tax, and thus must stay out of all campaigning (for good reason, I think). But if we agree on the case, maybe I should rethink my position.

  4. Ethan September 12, 2009 at 11:12 am #

    But if we agree on the case, maybe I should rethink my position.

    I think you should, but then we’d agree on something else, and where would this recursive meta-theorizing ever end? I fear only with your head exploding, or mine.

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