Still A Bad Decision

Reader D.B. (not D.B. Cooper, unfortunately) asks:

I'd like to know which of the 3 positions you advocate:

1. this rule does not inhibit their speech, which they are entitled to and can pursue other ways (this position does not hold up)

2. their speech should be inhibited in this limited set of circumstances because of the danger to our democracy (again i ask how you can infringe on this right)

3. they have no right to free speech because they are not "persons" (I expect you are in favor of this position, but I wonder how this does not then allow Congress to restrict the speech of any group in any form or circumstance)

The outrage on campaign financing recently perpetrated by the United States Supreme Court has, obviously, not come from the people's representatives in the legislature but rather from the Court which is the highest authority in the land on the Constitution. Consequently, the 5-4 decision cannot be entirely refuted by reliance on #2, the danger to our democracy (notwithstanding how real it is). As distinguished leftist blogger Glenn Greenwald put it

One of the central lessons of the Bush era should have been that illegal or unconstitutional actions -- warrantless eavesdropping, torture, unilateral Presidential programs -- can't be justified because of the allegedly good results they produce (Protecting us from the Terrorists)....

Except to the extent that some constitutional rights give way to so-called "compelling state interests," that the Court's decision will produce "bad results" is not really an argument.

It really is an argument; it's simply not the controlling argument. Still, it's hopeful that one of the two parties is sufficiently concerned about the impact of the Court's decision on national security. ABC News reports

"There's a big danger that the decision opens the door to foreign owned corporations indirectly spending millions of dollars to influence the outcome of U.S. elections through their American subsidiaries," Van Hollen, D.-Md., told ABC News. "The American people should be deeply concerned. This decision raises all sorts of questions...."

The problem, former Federal Election Commission Chairman Scott Thomas told ABC News, is that it's much tougher to determine whether foreign money is behind a political ad when the check is cut by a multi-national corporation.

"There are unfortunately lots of examples where foreign businesses or governments have tried to route money through U.S. subsidiaries and into party coffers," Thomas said. "Now we're permitting businesses to get involved directly in advocacy messaging. There will have to be a lot more scrutiny on the question of whether the money is coming from a foreign source, and whether it can be constrained."

It would be ironic if, in the absence of legislation ameliorating the impact of the Court's ruling, the government of mainland China, through a state-owned company, ended up having a greater affect on American politics than does the American middle class.

There hardly was a ban on corporate electioneering prior to the Citizens United decision, as Justice Stevens described in pages 23-28 of his opinion, pages 110-115 of the transcript. He explains

Under BCRA, any corporation’s “stockholders and their families and its executive or administrative personnel and their families” can pool their resources to finance electioneering communications. 2 U. S. C. §441b(b)(4)(A)(i). A significant and growing number of corporations availthemselves of this option; during the most recent election cycle, corporate and union PACs raised nearly a billion dollars.

He notes further

Neither Austin nor McConnell held or implied that corporations may be silenced; the FEC is not a “censor”; and in the years since these cases were decided, corporations have continued to play a major role in the national dialogue.

A major role, indeed. Inhibited, hardly. Unless we are able to ignore television commercials completely, we all know the positions of the insurance industry, pharmaceutical industry, and nurses associations on health care. But are we aware what the individual across town believes on mandatory insurance, drug re-importation, or a public option? Not unless we happen to know that fellow across town, and even then we might not know his position. Nor would it matter, because he/she doesn't have the resources to convey that position to the general public.

For that matter, do we know the thoughts of Bill Gates, Warren Buffett, or Lawrence Ellison- three of the four wealthiest people in the world- regarding health care? If they were to utilize their "speech" and run ads advocating for or against health care, we at least would know whom they represent- themselves- rather than wondering whether they are representing executives, the Board of Directors, shareholders, or merely the CEO. Or in the words (p. 77/164) of the Justice,

It is an interesting question “who” is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officersor directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their self expression or cultivating their critical faculties is fanciful.It is entirely possible that the corporation’s electoral message will conflict with their personal convictions. Take away the ability to use general treasury funds for some of those ads, and no one’s autonomy, dignity, or political equality has been impinged upon in the least.

Consequently, a restriction on what the Court majority construes as "speech" does not imply a restriction on any other group or organization, as further explained by Stevens (p. 37/124):

The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings,and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends. Even “the notion that business corporations could invoke the First Amendment would probably have been quite a novelty,”given that “at the time, the legitimacy of every corporate activity was thought to rest entirely in a concession of the sovereign.”

Corporations, rather, have "special advantages- such as limited liability, perpetual life and favorable treatment of the accumulation and distribution of assets" (p. 47/134), which also distinguish them from other groups and organizations.

The danger presented by the expenditure of billions of dollars from corporate treasuries, overwhelming the public interest and will, does not justify targeting even a narrow class of expenditures as had been enshrined in law. But corporations are not, according to the Founders or common understanding, persons with consciences, beliefs, thoughts,or desires and there are at times a compelling governmental interest in restricting their activities while "leaving untouched" their contribution to "the broader public dialogue."