For Free Speech & Against Incumbent Protection

It has been a tremendously good week for Conservatives. Scott Brown's election was, of course, the most delicious news. But it was also the week that the U.S. Supreme Court announced its opinion in Citizens United v. Federal Election Commission. More on that in a minute. If those two items weren't enough, Air America, an attempt to establish a left wing talk radio presence, filed for bankruptcy.

Here is a summary of Citizens United v. FEC, from The Volokh Conspiracy:

The Court held 5–4 that restrictions on independent corporate expenditures in political campaigns are unconstitutional, overruling Austin v. Michigan Chamber of Commerce and parts of McConnell v. FEC, and it upheld the disclosure requirements 8–1 (Thomas dissenting). Justice Kennedy explained that the Court was overruling some of its prior decisions because it was not possible to rule in favor of the petitioners on narrower grounds without chilling protected political speech.

According to Justice Kennedy, the Court is re-embracing the principle that a speaker's corporate identity is not a sufficient basis for suppressing political speech, as held in pre–Austin cases. It would appear this holding applies equally to unions. While disclosure requirements may also burden political speech, Justice Kennedy explained, such requirements may be justified by the government's interest in ensuring that the electorate has information about spending on elections and campaigns, and the specific disclosure requirements at issue are constitutional as-applied to Citizens United.

I certainly haven't had time to read the gargantuan set of opinions (183 pages!), so I am depending here on the summaries. Here is the most commonly cited passage from Kennedy's majority opinion:

When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought.

That seems to me the right way to go. The Court ought to take a very suspicious view of any limitations on political speech by any speaker, whether that speaker is Ralph Nader or The Sierra Club. This is because it not only limits the speaker, but also prevents the public from hearing what the speaker has to say.

There are two key issues here. One is corporate personhood. Some on the left reject the doctrine that corporations are persons with rights and privileges. Here I quote my favorite political scientist:

Corporate personhood just means that a corporation can be considered as a legal person in court, and that it can bear liabilities and obligations, as well rights and privileges. It has been part of western law for centuries, and for very good reasons. Corporations emerge when individuals pool their resources and talents and act as a body. Treating those corporate bodies as legal individuals is the only way that governments can effectively regulate them. But if you are going to expect corporate bodies to pay debts and accept responsibility for their acts (oil spills come to mind), you have to grant them a corresponding set of legal rights.

The second issue is what personhood rights corporations have. Obviously corporate bodies do not enjoy the same rights as individual citizens. Corporations do not get to vote. But as corporations can act so they can speak or publish their collective opinions. As the court says, to limit their speech is to limit what the public gets to read and hear.

That is the real meaning of the regulations that the Court overturned. The McCain-Feingold Act limited corporate-funded political ads in the days immediately before an election. That amounts to an incumbent protection plan. Incumbents nearly always enjoy an advantage in campaign money. Allowing corporations to directly fund political ads in the final stretch, independently of campaign organizations, reduces that advantage.

The Court upheld disclosure requirements, as it should have. Making sure that people know who is funding an ad gives the voters more information. The Court got it right.

Comments

[caheidelberger]

"Obviously corporate bodies do not enjoy the same rights as individual citizens. Corporations do not get to vote."

"Obviously" makes me nervous. Obviously corporations are not people. Obviously they are not endowed by their Creator with certain inalienable rights. But if we can extend First Amendment speech protection to a legal fiction, can we not extend voting rights via the Fourteenth Amendment (or 20th? shall we deny corporations the vote because they are neither male nor female?)?

Maybe corporate personhood doesn't need to be all-or-nothing, but for me to give up the "nothing" position, you'll need to provide a clearer threshold than "Obviously" to persuade me it won't be "all".

[George Mason]

Cory; Under the laws of our country a corporation is a legal "person"(although not a citizen). A corporation is after all a group of people who have assembled for their common good (and prosperity). The first amendment also guarantees the right to assembly and the right to petition the government for redress of grievances (and do we have a lot of those right now). The Supreme Court in this decision has allowed people, either individually or collectively, to exercise their rights. They are not granting the right to vote here and it is rather silly to make that extrapolation. If the owners of a corporation (the shareholders) do not want to be involved in political campaigns they have the right to express their opposition and demand a vote. This is a more democratic process than you will find with the unions where the leadership doles out campaign cash and objections are met with intimidation. Chances are the Obama administration will not be enforcing the Beck decision anytime soon.

[KB]

George and Cory: I think it is a fair question why "corporate voting" is not a logical consequence of corporate personhood. After all, corporate bodies get to vote all the time. The U.S. votes in the U.N. States vote in the U.S. Senate. We could conceivably give Microsoft a seat in the House.

But in the American Republic, the fundamental stage of voting is restricted to individual citizens. That's because the consent of individual persons is the sole source of the legitimacy of government. So on foundational principles, voting for representatives is restricted to individual persons.

Voting rights are restricted among individuals in all sorts of ways. Only citizens get to vote, and only those of a certain age. Freedom of speech is not similarly subject to government restrictions. Government cannot abridge the freedom of speech of a fourteen year old or non-citizens. On the other hand, many freedoms protected in the Constitution have no application to corporate persons. I doubt that Victoria's Secret can be said to exercise freedom of religion. Since Corporations do not have physical bodies, they probably cannot enjoy freedom of assembly.

There are practical reasons for that restriction as well. If we give Microsoft a vote, why not Chuck E. Cheese? And what counts as a corporation with voting rights? Do big companies or public advocacy groups get just one vote, or does their vote depend on size? What about subsidiary corporations?

So I don't think that corporate voting is something we have to worry about if we accept corporate personhood.

The problem with your "nothing" position (an absolute rejection of corporate personhood) is that it is simply untenable. Can government confiscate the treasury of the ACLU or the NRA? If those organizations have a right to money that is held corporately rather than by individuals, then corporate personhood is a fact.

The only real question then is whether this specific right, free speech, applies to corporate bodies. I think the Court was right to say that it does, for reasons offered above.

[Erik]

KB: Interesting post. I listened to Gingrich on NPR and he was also parroting the anti-incumbent line on this decision, and left the door open to running (again) for President. Interesting. Just curious, do you see this opinion more in the line of the Rovian GOP agenda to roll things back to the late Gilded Age. One of the Rove's idols is McKinley (perhaps Rove was Hannah to Bush the Younger's McKinley) and Bush the Youngers appointees were the decisive votes on this....

[KB]

Erik! Great to hear from you. Just out of curiosity, who were Gingrich and I "parroting"? I can understand why present circumstances might be distressing to you. After all, weren't you telling me only a few months ago how the Republicans were merely a regional Southern party?

But maybe the Supreme Court majority decided the case the way it did because the five justices believe in freedom of speech, and not because they were part of any "Rovian" agenda. Everyone on the left assumes that this decision will benefit corporations, but is there any evidence for this? It will also free up all the activist organizations that are anti-business.

For that matter, it is obvious that money spent in this way has any appreciable effect on the outcome. The Democrats outspent the Republicans by a mile in Massachusetts. Guess what?

Anyway, great to hear from you. Now that A.I. doesn't love me any more, I miss the old gang.

[Erik]

KB: It is still a long way to November ;-). More later.

[KB]

Yes, Erik, it is a long way to November. Thanks for that comment, as it is a good lead in for my next post. I look forward to the rest of your comment.