The Case in Favor of Speech Limits on Corporations

Citizens United v. Federal Election Commission (08-205), the Supreme Court case that will decide whether the government has the right to restrict corporate political advocacy or whether such regulation is a violation of the First Amendment, is set for re-argument on Wednesday. The case originated in the past term. SCOTUS blog has a full argument preview.

In a segment entitled Is McCain-Feingold Censorship? Bill Moyers Journal had Trevor Potter, president and general counsel of The Campaign Legal Center, who has submitted a brief to the court in support of the F.E.C.; and Floyd Abrams, a First Amendment attorney, who will be arguing before the court on behalf of Citizens United.

As Abrams’ appearance attests, there are conservatives and liberals on both sides. If my headline doesn’t tell you where I come down on the issue, this quote from Trevor Potter should:

[C]orporations are creatures of the state. That sounds like some piece of law school mumbo jumbo, but it’s not. Corporations exist, because government said, “We’re going to give you limited liability for commercial, for economic purposes. We’re going to take somebody who might have lost everything they invested and we’re going to say you can limit your liability by having a corporate form. You only lose what you invest.”

That was an economic revolution when it happened. But it was done for economic purposes. Corporations exist because somebody creates them, goes down, files the paper with the state. The state blesses them and gives them a special status. So, what I think is that corporations exist for economic purposes, commercial purposes. And that the notion that they have full First Amendment free speech rights, as well, doesn’t make any sense for this artificial creation that exists for economic, not political purposes. [...]

Corporations exist solely to make money. Amassing economic power. They want, if they could get it out of government, monopolies. They want the ability to defeat their competitors. And if they can use government to do that, they will. Individuals have a whole range of interests. Individuals go to church, they care about religious and social issues, they care about the future of the country. They’re voters.

So, they have a range of issues at stake that corporations don’t have. Corporations just want to make money. So, if you let the corporation with a privileged economic legal position loose in the political sphere, when we’re deciding who to elect, I think you are giving them an enormous advantage over individuals and not a healthy one for our democracy.

I thought Floyd Abrams’ defense on the Moyers program was a tired recitation of his same old same old. Eliot Spitzer, writing in Slate, does a better job of articulating the other side of the argument:

Efforts to lower the decibel level of all the voices in public debate are flawed. The First Amendment should not be construed to create voices of equal strength: It should merely ensure that all can speak. So, where should folks trying to push meaningful campaign finance reform focus, if not on limiting the speech of unions and corporations? First, lowering the limits on campaign contributions, especially in the state context. Second, eliminating “soft money”—often unlimited contributions to political parties from supporters. Third, building support for public funding of campaigns so that all direct contributions above de minimis levels can be eliminated. These efforts are all directed toward ensuring that a candidate does not become dependent upon sources of funding that would distort honorable governing.

Trying to limit the volume of independent voices will only generate false distinctions and bad logic, and it will also run directly against the core protection of the First Amendment: that we are all permitted—indeed guaranteed—access to the forum of public debate.