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Campaign Free Speech For Corporations—Why Not?

Posted by MICHAEL SILVERSTEIN, Wall Street Columnist in At TMV.
Sep 24th, 2009 | Comments

The Supreme Court is now cogitating over a case involving corporations and free speech that many people worry could lead to a dramatic change in our political system. Specifically, that so much corporate money might soon flow into elections that it will have a disastrous effect on who gets elected and whose interests elected officials will really represent.

I think such worries may be exaggerated. In fact, the basis of these worries may well be misguided.

Let em explain. Corporations already have free speech rights when it comes to advancing their own interests. They have had them since there were corporations. The medium through which this free speech is expressed is advertising. And there’s no legal limit on how much can be spent on ads by a corporation to advance its own interests.

There are, however, limits on the content of these ads. I, as an individual, can say pretty much whatever I like to whomever I like about a given product. I can say it stinks. I can say it’s great. And as long as my comments are not funded by the product maker I’m opining about, and are not libelous or slanderous, my views are unlimited and protected free speech.

A corporation’s right of free speech to advance its interests via advertising, however, is far more limited when it comes to what can and can not be said. Corporations are limited by federal laws like those administered by the Federal Trade Commission — laws not being challenged in the courts.

Under the Federal Trade Commission Act, corporations in their ads must be truthful and can’t be deceptive. They must have evidence to support their claims. These claims must be fair. They can’t deceive reasonable consumers in a material way. And all these limitations apply not only to what is explicable expressed, but also to what is implied.

If the Supreme Court decides that corporations have a free speech right to spend as much as they want on campaign ads to advance their own interests, that’s fine with me — as long as the content of this free speech is governed by the same rules that already apply to its other corporate free speech.

Let’s be clear about things here, and hope the Supreme Court is as well. If advancing a corporation’s interests involves free speech in the form of spending money on campaign ads, it’s just another form of product peddling. And if the product this time around happens to be a political candidate running for office, the same product peddling limitations should apply as are applied to other corporate free speech.

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Don Quijote

Campaign Free Speech For Corporations—Why Not?

Let's go all the way and give them the vote, after all they are "persons"...

tidbits

Are you kidding me? You don't see the danger in this?

Imagine Exxon-Mobil dropping $5million into a congressional race that normally requires a budget of $250,000 per candidate. Their reason, the incumbent voted against extending offshore drilling or voted against giving them a $14 billion tax credit. Now imagine they do that to every member of congress who votes in way they don't like. They could do it to a lot of congresspeople for a $14billion tax credit as their "return on investment."

Now, what happens in the next session of Congress? Nobody is willing to take on big oil for fear of the massive advertising that will be leveled against them in the next campaign, advertising that their puny-by-comparison campaign funding can't match. Big Oil gets everything they want...good for the country or not. Now multiply that by every multi-national corporate interest with an agenda to feed off the public or exact a tax break. You think special interest lobbyists with "access" are a problem, wait till every member of Congress is subject to the implied blackmail of "vote this or that industry's interests" or face the consequences.

Can you even conceive of what would happen to environmental laws and worker protection laws?

Yes, I understand that the First Amendment guarantees freedom of speech and does not specifically limit that freedom to living persons, but a ruling such as you envision has the potential to be the unravelling of a democratic form of government. The SC should find that the rights of the First Amendment were meant to apply to living persons, not corporations and that corporations, as artificial entities, can be subject to restrictions, including restrictions on political speech.

All for the freedom of "we the people", but this isn't that.

Leonidas

Imagine Exxon-Mobil dropping $5million into a congressional race that normally requires a budget of $250,000 per candidate

I'll take a guess, the guy who is running against the candidate so funded will air an ad that Exxon-Mobil spent $5 million on his rival's campaign and he is in the pocket of Big Oil.

You see, beyond a certain point it can become a disadvantage. But I still think that unions should also get this ability as a counterbalance. The UAW and other major unions can drop some pretty big bucks as well, and coporations are not all in one camp.

Maybe I'm off base but I am just kinda fond of the First Amendment. Pass a Constitutional Amendment, not just a law regulating campaign finance activity and I'll get over this fondness for it regarding campaign finance restrictions.

vey9

"the candidate so funded will air an ad that Exxon-Mobil spent $5 million on his rival's campaign and he is in the pocket of Big Oil."

He can't. That's because the reports don't have to be filed until 3-6 months after the election. Scratch that argument. Try again.

lurxst

Unfortunately $250K does not purchase the kind of media that $5 million does.

Removing corporations from the equation is the only good answer. I would say allow them to contribute and then have the FEC be more stringent in monitoring, but the FEC is just as often toothless and unduly influenced. We've seen too many examples of how regulations get enforced based on the priorities of the party in power, who gets appointed to the commission. Even with FEC recommendations corporations too often get a pass. If they are willing to spend a billion to get their way, it matters little to a corporation if that is done in media buys or in fines. They still get their way.

The thing that makes me most angry is that I am certain that via my 401k I have shares in companies that are using my investment to actively campaign against my interests, regardless of a shareholder vote or any such democratic legerdemain.

I am always made sick to my stomach when I listen or read debates about the foundation of corproate personhood in Santa Clara v. Southern Pacific, to think that it was based on an "accidental" clerical error and not on actual Supreme Court agreement.

It will end up being the degradation of our democracy into ruin.

tidbits

Best guess is that the SC will rule as you wish, Leonidas. We'll then get a chance to see first hand what's left of our country "of, by and for the people" say 10 years down the road. God help our children when every decision made by an overbearing government is dictated by the interests of an overbearing corporate elite.

As I said earlier, the First Amendment, which I also cherish, may not specifically say "living person", but I believe it is, and was from inception, designed to protect the rights of the people, not the corporations (or unions). Right or wrong, brilliant or stupid, let us remain a government of the people.

Leonidas

He can't. That's because the reports don't have to be filed until 3-6 months after the election. Scratch that argument.

Good point, although those things do have a way of surfacing beforehand. Perhaps if paired with some kind of instant disclosure system. Something like the money can't be spent until it is disclosed and restricted by a cutoff date enough ahead of the election that nothing could be sent through at the last minute to conceal it.

Leonidas

As I said earlier, the First Amendment, which I also cherish, may not specifically say "living person", but I believe it is, and was from inception, designed to protect the rights of the people, not the corporations (or unions). Right or wrong, brilliant or stupid, let us remain a government of the people

I disagree with you here as I see the unions and corporations as being a part of the people. There are shareholders and members and their right to speak as one is just as protected as their right to speak individually.

But like I said before pass a new Constitutional Amendment and I have no problem with such restrictions, I just don't like lesser laws and regulations overruling the US Constitution.

But as I said before pass a new Constitutional Amendment that changes this and I'm fine with it. I just don't like lesser laws being used to overrule the Constitution.

vey9

Your other point is about the unions. You may live in an area where unions have power, but I don't. In fact, not one person in 50 belongs to a union here.

While I am in favor of limiting corporations "free speech" rights, your threat about limiting union's voice is no threat at all since they have no voice.

Who does have a stronger voice than the unions?
The churches. They have a much stronger voice than the unions. Pols make the rounds on Sunday mornings coming to Sunday schools. They ignore the union halls.

tidbits

Leonidas - You said, "Perhaps if paired with some kind of instant disclosure system...can't be spent until it is disclosed and restriced by a cutoff date." That's not what is before the SC. The corporate interests are seeking unfettered (not instant disclosure, not can't spend till disclosed, not cut off dates) access to use their resources for electioneering purposes. If they win this case, they will be subject to the ineffectual and unenforced rules that exist, and, even if your ideas were to take root, lurxst' point that "$250,000 does not purchase the kind of media that $5million does", still stands.

I do thank you for recognizing the problem and thinking about potential solutions.

tidbits

Leonidas - There is a serious logical flaw (or leap) in your position. To assume that corporations or unions speak for their shareholders/members "as one" is a false assumption. In the case of corporations, the primary shareholder influence comes not from individual shareholders but from other corporate interest holders including banks, 401(k) managers and mutual fund managers. To assume that this compilation of corporate elites (just look at their boards...how many ordinary "people"?) is seeking out the political policy preferences of every individual with some interest in a 401(k) or mutual fund is not within several light years of being true. I think you know that. As for unions. Their penchant for ignoring the interests of their members for all manner of corrupt leadership greed is legion. And, I think you know that too. Corporations and unions do not speak for their shareholders/members "as one"; they speak for the power, greed and influence interests of the corporation or union.

Leonidas

You may live in an area where unions have power, but I don't.

That doesn't mean the union couldn't be active in political donations in your area though.

Leonidas

I do thank you for recognizing the problem and thinking about potential solutions.

A valid comment deserves a response.

Almoderate

I firmly believe that politicians should have to wear uniforms like NASCAR drivers with patches that show all their sponsors. Only then will I be happy.

Leonidas

Leonidas - There is a serious logical flaw (or leap) in your position. To assume that corporations or unions speak for their shareholders/members "as one" is a false assumption. In the case of corporations, the primary shareholder influence comes not from individual shareholders but from other corporate interest holders including banks, 401(k) managers and mutual fund managers. To assume that this compilation of corporate elites (just look at their boards...how many ordinary "people"?) is seeking out the political policy preferences of every individual with some interest in a 401(k) or mutual fund is not within several light years of being true. I think you know that. As for unions. Their penchant for ignoring the interests of their members for all manner of corrupt leadership greed is legion. And, I think you know that too. Corporations and unions do not speak for their shareholders/members "as one"; they speak for the power, greed and influence interests of the corporation or union.

Another valid point, however in regard to corporate or institutional shareholding interests, those shareholding corporations and institutions have members as well. In regards to the unions their leadership is elected, if they don't represent the interests kick them out. That being said, I am not for forced unionization in some states as I think that enlarges the problem as far as our discussion here. Still, my point does stand that if corporations are afforded these Constitutional rights then organized labor should be as well. Also my point still stands about the need for a Constitutional Amendment being necessary if you want to curtail the rights currently granted by the Constitution. I am fine with that, I'm just not fine with lesser laws doing so.

Dr J

Corporations and unions do not speak for their shareholders/members "as one"; they speak for the power, greed and influence interests of the corporation or union.
In other words, corporate and union leaders work exactly like political leaders. Though nominally accountable to the constituents who can remove them from their jobs, they make most decisions based on which wheel squeaks the loudest.

I have zero sympathy for people who've bought stocks in corporations, don't bother to vote their rights, and then complain their interests aren't being represented.

tidbits

One more try, Leonidas. You have come up with several "illogicals" (my view): that we can have restricted cutoffs, pre-disclosure, that corporations speak for individual shareholders "as one" that unions, notwithstanding the never-found bodies of would-be reformers, can elect their leaders without fraud and corruption. Now to the other illogic, that we should have a Constitutional Amendment if we want to address this.

First, the SC interprets the Constitution, not you or I. It is possible to look at the intent of the framers and determine that the Bill of Rights was intended, from inception, to protect people, with lesser protections for artificial entities. If the SC were to so find...as they have done in the past...it could interpret the Constitution so that corps. would not have the same speech rights as natural persons. That would not be a particularly unusual ruling. If they did, there would be no need for any amendments.

More importantly, once the SC rules, as I believe it will, to give full speech rights to corps.(unions actually are not involved in the litigation as far as I know), there will be no chance of passing any Constitutional Amendment not blessed by the corporations, who will quickly and powerfully turn America into a corporate oligarchy. What congressperson would vote for such an amendment in the face of the intrinsic extortion the corporations could visit upon them?

Constitutional Amendment is just another "illogic", red herring, pie-in-the-sky, rationalization...whatever name you want to give it. Once the corporate oligarchy takes over (and, I do not believe it is hyperbole to call it that), nothing happens without their blessing...individual citizens be damned.

If that's what you want America to become, you're welcome to your opinion. I do not share it.

Don Quijote

Next time a conservative nominee for the USSC uses the phrase "Stare Decisis", the democratic senators should laugh in his/her face.

ProfElwood

I normally agree with you, Leonidas, but I can't this time. Where in the constitution does it say that anyone, besides natural persons who are citizens of the states have any constitutional rights? Just because congress declares a corporation to be a person, doesn't mean it can make them equivalent to natural people. As the article pointed out, they're already limited in ways that can't be applied to natural persons because it would violate their constitutionally protected rights. It's also rather pointless to limit personal political contributions, if a person can simple donate their limit to 50 PACs to do the contributing for them.We're being drained by these "positive feedback loops" between politicians and corporate entities.

Leonidas

First, the SC interprets the Constitution,

In my opinion that was the first huge bluder of our nation, accepting like sheep that the Supreme court had this power which they assigned themselves unilaterally. The Supreme court should uphold the laws not interpret them.

Constitutional Amendment is just another "illogic", red herring, pie-in-the-sky, rationalization...whatever name you want to give it.

To me its the rule of law. Nothing less.

Dr J

Congress hasn't declared a corporation to be a person, nor is it an "artificial entity." It's a perfectly natural entity: a group of persons sharing some common interests.

How else could individuals' wishes possibly be heard at the scale of national politics, except through the leverage of corporations like the AFL-CIO or Consumers Union or Dell or Greenpeace? Corporations are not the enemy of the public's voice, they're its embodiment.

Leonidas

Where in the constitution does it say that anyone, besides natural persons who are citizens of the states have any constitutional rights?

The proper question is, where is Congress empowered to restrict freedom of speech in any way?

" Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

It doesn't.

tidbits

Leonidas - You're really going off the deep end here...contradicting your own argument. If the SC should not interpret the Constitution, then the law stands...........and corporate speech remains restricted by the statute...which is the existing law.

And, if the SC doesn't interpret the Constitution, who does? You? It's not like the document is crystal clear, as this thread points out.

No insult intended, but when we first encountered each other here at TMV we had some interesting and positive discussions. Since then you have moved five or six neighborhoods to the Right. Speaking only for myself, I liked our discussions better when you were a center right moderate and didn't take outrageous wingy positions like the Supreme Court shouldn't interpret the Constitution. That the SC interprets the Constitution is how it's been for 200 years. Geez, get used to it already...or pass a Constitutional Amendment to change it (sorry, couldn't resist). . :-)

Gegenschattenbild

Think of the design opportunities!

ProfElwood

I could accept that under two conditions:
1. That they are for the sole purpose of political speech. For instance, right now, union leaders are trying to implement card check, which the majority of union members don't agree with. The union leaders are using their member's money to further the leader's interests, not the members' interest.
2. The organization can't be used to disguise who the real givers are, and can't be used to get around total campaign contribution limits.

ProfElwood

My "proper question" is, who does the constitution apply to? It doesn't apply to foreigners; it doesn't apply to people living in territories; it doesn't apply to illegal aliens. The law, not the constitution, created corporate entities -- as such, it has the power to limit them.

Dr J

#1 seems tremendously artificial. The groups with something to say about an issue will be the groups involved in it in an operational sense. If I'm a part of a union, of course I want the union to use its pull in Washington on my behalf. If I don't feel they're representing my interests well on any front, I should vote its bums out or cancel my membership.

#2 is more bad rules to paper over the cracks in the first set of bad rules. Campaign contribution limits are a bad idea to begin with, putting government in the hopeless business of metering first amendment rights. That immediately steers us into this series of quicksand bogs over who the "real" givers "really" are and whether their intentions are "properly worthy" and so on.

There's no need. All these worries about the "wrong" voices crowding out the "citizens'" voices are based on a failure to recognize how citizens' voices actually sound.

DLS

"The proper question is, where is Congress empowered to restrict freedom of speech in any way?"

That is correct. Congress (the only federal branch that would possibly have such power) has no such power; this is expressly prohibited. Freedom of speech especially means political speech, of course, and envy of others' deep pockets in no way legitimizes the wrongful curtailment of the right of free speech simply because it may make some people feel good (or just assuage their envy and anger).

DLS

"The Supreme court should uphold the laws not interpret them."

Absolutely. "Due process" is one thing (fulfilling its almost-exclusive role as an appellate court); what is called "due substance," instead, is not the role of the Supreme Court nor any other, to say what the law "is" or more, "should be." The courts have no right to arrogate legislative (or executive) power to themselves, the judiciary. That has sadly been a problem for ages, and in modern times (since the later 1930s) has been notorious, with liberal judicial activism. This pleases liberals, as to them the ends justify whatever means may be used to get what they want, but is dangerous as well as wrongful. And of course, many of us who have outgrown our more childlike, naive liberalism will puzzle the rest when we correctly blame them if the courts ever were to engage in conservative judicial activism (after decades, to today, of the opposite): It is the Left which demanded the breaching of the levees properly constraining the judiciary, and it is the Left that can be blamed if the released leftward flood of judicial activism were to shift course momentarily to rightward instead.

DLS

"Campaign contribution limits are a bad idea to begin with, putting government in the hopeless business of metering first amendment rights."

[snicker] The lib House Dems have the answer. Liberal media newspapers aren't enough; once they have been taken over, ahem, bailed out, then they'll be even less likely to be pesky critics of Dems in Washington.

tidbits

"The [courts] should uphold the laws not interpret them."

That's too simplistic and does not accurately set out the role of the judiciary. The actual role of the judiciary is to provide a formal and peaceful process for resolving disputes, in the course of which they are required to "apply" the law to particular circumstances. Often parties disagree on what a law means, and they disagree honestly and sincerely. Laws come in many forms: statutes, ordinances, regulations, treaties and the various constitutions of the states and the federal constitution. When the parties disagree on what a law means, resulting in their being unable to resolve their differences without resort to the courts, the court must determine what the law means (interpret the law) in order to resolve the dispute.

This is not only the province of the Supreme Court, but happens thousands of times a day in courtrooms across America. As a result we have, going all the way back to English Common Law, "rules of construction" that apply not only to interpreting laws but private agreements (contracts) as well.

Within that context, determining what a law means, may include determining whether the law is constitutional. And, the parties may disagree on the meaning of the Constitution or how it should be applied in a particular case. That is where determining the meaning of (interpretating) the Constitution comes into play.

Without courts to make these determinations, disputes could not be resolved (if the parties agreed on what the law meant and how it should be applied, they wouldn't be in court). With thousands of lawsuits in play every day, Congress cannot issue an opinion on what any particular section of any particular law means thousands and thousands of times a month. Nor can, or should, the executive branch. And, the Founding Fathers are no longer here to ask. It is, and rightfully so, the province of the judiciary to determine the meaning of laws, including the Constitution, and it is necessary to fulfill our national committment to resolving our disputes peaceably through a formal system of justice.

DLS

To clarify a meaning is legitimate. To substitute one's own whim or desire is something else entirely.

Matt Pearl

Not to be nit-picky, but often citizens can't openly criticize any given product. Courts have applied libel and slander laws to accusations of poor quality or lack of safety. This is particularly true in the food industry.

Frankly, I don't think that money is an extension free speech, a view that the court has held since the early '90s (I believe), for the sole reason that it implies that a rich person is entitled to more free speech than a poor person simple because the former has more money. Sure, money facilitates speech, in much the same way that money facilitates eating, but money isn't speech the same way that money isn't food.

I'm all for public financing of elections, and I'm saying this as someone who studies economics and wants to make a career in that field.

Dr J

Public financing has not worked well for us here in San Francisco. Taxpayers pay millions to fund the doomed campaigns of various bozos seeking public office. Despite the many tons of extra campaign posters we're paying for, we don't seem to end up with better government.

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