When Speech Isn’t and Money Is
The battle lines were immediately drawn following the Supreme Court’s decision to strike down certain restrictions on corporate spending in political campaigns. Many conservatives, particularly Republicans, cheered the decision as a victory for free speech. More liberal observers, as echoed by the President, decried the ruling as a “stampede of special interest money in our politics.”
I’ve always been of two minds on this subject, finding it far less clear cut than my more partisan friends on either side of the aisle. A certain libertarian streak still resides in me which puts forth a knee jerk reaction against “corporate fat cats” having a larger voice in the political arena than the blue collar man working for an hourly wage. And this voice also forces the question of whether or not corporations (or unions or other large entities) are actually “people” in the sense of being entitled to first amendment rights.
The conservative will quickly point out that the corporation may be an “entity” but it is comprised of people – perhaps tens of thousands of them – who have earned money through dint of hard labor, and should be able to exert that force in the form of political voice. The liberal will cluck his tongue and point out that the vast majority of the workers are primarily concerned with keeping their jobs and securing their paycheck, while the decision to use corporate funds for political speech is made by at most a handful of people at the top.
“Aha!” the conservative may respond. “Is not the livelihood of the worker and the future security of that paycheck tied to the welfare of the company? As such, the corporate leaders are, in a sense, still speaking for the benefit of the worker.”
This conversation can – and does – go on for days, and it applies equally to labor unions who may be supporting the exact opposite platform of the one endorsed by the corporation. As I said initially, it’s an important topic of discussion and not nearly as clear as some on either side might wish to make it appear.
Looking to the Founding Fathers doesn’t provide us much relief in the debate. True, Madison wrote at length in Federalist 10 about the need for free speech, but was largely silent on when, where and in what force that right would be exercised. It’s not as if revolutionary era America was a classless society. There may not have been television, radio or the internet in those days, but wealthy landowners with power, influence and access to a printing press were already engaging in political speech at a much louder volume than the workers in the fields, and this fact didn’t seem to overly bother the Constitution’s signatories.
Further, conservatives may find some comfort in the nature of unequal volume of political speech based on financial muscle in one of the core tenets of conservatism. Unlike the majority of liberals, conservatives across the board tend to believe in a vision of America as a land of equal opportunity, but not equal outcome. Everyone must have access to the same opportunity to make money and succeed. Those who work the hardest and achieve the most are entitled to the fruits of that labor. In this sense, everyone has the opportunity to exercise a loud voice in political debate if they strive to build up the power to do so. And nowhere in this process is the poor person denied that chance or having their voice suppressed, as the option of the soapbox in the public square always remains.
This line of thought leads to another scenario which argues against the court’s minority opinion. Where are we to find the real damages to free speech from this decision? Not every “corporation” has the same set of interests. Some will find their needs best suited by Democrats, while others will doubtless back Republicans. Similarly, well financed petroleum advocacy groups, for example, might back one candidate while a huge labor union might choose to back her opponent.
And what is left beyond that except an unrealistic demand that each individual voice in the country be given the same air time as the next? That idea is preposterous from the start. Should we assign the same amount of radio time to one individual who wants to outlaw the growing of broccoli as to ten million people who don’t want socialized health care or who want to legalize gay marriage? Volume in political speech comes from raw numbers of tongues as well as the bank balance of particular interest groups. A popular message will always find a way to be heard while fringe ideas are mostly left crying in the wilderness. This, again, speaks to the difference between opportunity and outcome, though from a different angle.
I remain unsure what to think about the recent court decision. Both the majority opinion and the dissent seemed to be worded in rather partisan, sniping tones, and neither finds much basis in the Constitution without engaging in “bold penumbras” of deduction. But in the cold light of day, my support of limits on corporate “speech” in this sense feels more like populist, Robespierre sentimentality, while arguments opposing such limitations look to be grounded in a realistic – if perhaps cold and brutal – acceptance of the reality of life in a free market nation such as ours.
34 Responses to “When Speech Isn’t and Money Is”
Hey, the SCOTUS ruled exactly the way that the ACLU amicus brief had suggested, but Associate Justice Ruth Bader Ginsburg, a former member of its board of directors and one of its general counsels in the 1970s, voted the opposite way.
But, just as Bill Clinton’s rich contributors put an end to the notion that “only Republicans are rich,” I fully expect many folks to be surprised to find out that all corporations aren’t conservative or Republican (think Ben & Jerry's).
Jazz, thanks for a well reasoned commentary on this topic. Although, free speech is important, loud speech in the form of those obnoxious people who used to sport boom boxes, and now holler in restaurants and public transport on their cell phones. Well, although it may be legal, those ads for candidates bombarding us for a year and a half leading up to an election, is still hollering to me. As far as freedom of speech of a union member or an employee in a corporation, is ridiculous. The powers that be, will support the candidate that lines their pockets the best. How many fat cats at corporations get nailed for crimes perpetrated “by the Corporation”, think the financial meltdown. Unions are just as bad when they use union dues to lobby their members to vote for a particular candidate. I know the whole election system is a mess, but the excessive campaigning, although legal, is a pain in the butt.
For me the issue is what the Constitution says, the First Amendment does not distinguish between labor unions, corporations and individuals, all have their rights protected.
That being said, previously I supported McCain-Feingold on this, not because I felt it was Constitutional, but because the limits on big business balanced previously legislated restrictions on Big Labor found in Smith-Connally and Taft-Hartley (and trust me I'm anything but a fan of Big Labor, but fair is fair). This ruling takes the restrictions off all the players so I'm behind it as it applies the guarenteed Constitutional protections equally to all.
I think we can rename the blog “The Latter Day Populist Voice” anytime now.
“A certain libertarian streak still resides in me which puts forth a knee jerk reaction against “corporate fat cats” having a larger voice in the political arena than the blue collar man working for an hourly wage.”
You must operate under a new definition of “libertarian” in upstate NY……….leveling the playing field for the poor man is decidedly liberal/progressive, not libertarian.
And it is that very issue of leveling the playing field via the concept of restricting the rights of another that the Constitutional law interpretations by SCOTUS have been consistently ruled against since 1957 when
guys named Burger, Warren and Frankfurter populated the bench…….hardly conservative reactionaries.
None of any of these threads address stare decis, but merely expect SCOTUS to throw the history of law out the window and decide things because some who have not succeeded want the playing field leveled against those who have.
The Court invariably starts from the assumption that rights are a given and any laws that seek to abridge “anyone's” rights have to be weighed very seriously for unconstitutionality. The Constitution doesn't exist just to please the whim of the have nots.
Jazz, you say “wealthy landowners with power, influence and access to a printing press were already engaging in political speech at a much louder volume than the workers in the fields, and this fact didn’t seem to overly bother the Constitution’s signatories.” This is, of course, because the constitution (and the rights in it) only applied to male landowners. The voices and rights of the “workers in the fields” never mattered to them, since they were never supposed to have them. Ah, originalism.
jazz
As I have been saying in a quiet tone all morning, the issue is not free speech, it's a matter of volume.
Would TMV allow me to cap-lock and shout it across every thread on the site?
To state it metaphorically one more time, “I have the protected right to say “fire” in a movie house, but I don't have a right to shout “Fire” there.
If money is speech and corps derive their money from investors, are they not reducing my return and thus my “speech” when they spend money based upon the political whims of the CEO? Who gave the right to corporate boards to steal my money/speech?
leo
the constitution makes no mention of corporations, so quit trying to say that it does.
What I find funny is that the same people against a bank tax because “it will be passed on to customers” support the Supreme Court's decision to open the money flood gates for corps but where will they get their money for these campaigns? Oh yea they will pass the cost on to their customers lol.
In the end we will likely see the rise of the “political corporation” meaning companies created like Credo that offer a service others do with a promise to give to causes you support. It is not viewed this way now but in the end I think this will end up hurting wall street and the corps most of all, of course if I am wrong the other option is that our gov will loose all legitimacy with both sides of the aisle and we will live in a corporate anarchist like state once officials are no longer viewed to have any true authority.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…
So what's the liberal revision going to say?
“Congress shall make no law abridging the freedom of speech except for some corporations when Congress in its infinite wisdom decides it is best to do so” How about that?
Note that there were a number of selective exceptions under the law that was overturned. The media had a right to deliver hit pieces against candidates, and play politics for example. They were not required to silence Olbermann, Hannity, and the like just because an election was on the way that could threaten incumbents. Newspapers and magazines, almost all of them run by corporations, had no such restrictions.
And how were the restrictions being applied? Look at the Massachusetts race. The unions poured money into the Coakley campaign. So did the big health care corporations in their major fund raiser in DC. I'm not claiming that was illegal, but that's the point. They just had to jump through a few legal hoops to do it. They were hardly excluded from the dialogue. Obama cut a deal with Big Pharma to spend $ 150 million dollars on an advertising campaign supporting his favored legislation; where was all the angst from Obama about the evils of corporate money in politics then?
Good summary of many of the issues Jazz. I'm with the ACLU on this one — a major blow for Freedom of Speech. Thank you SCOTUS!
DaMav
I can see why you think limiting speech and spending money is the same thing….. When you show me the mouth of a corporation, I'll protect its right to speak. The Constitution is for the people of the US, not the legal fictions of corporations.
When corporations can pay the price for wrong doing, when they can also have the full benefits, that is, right after that mouth shows up… I take it you think they should vote too.
Southern plantation owners believed they should get 3 votes for every five slaves they owned. Wealth is not franchise, nor is it speech.
Speech comes from humans, not a series of papers.
The Court has recognized that First Amendment protection extends to corporations. … This protection has been extended by explicit holdings to the context of political speech. … Under the rationale of these precedents, political speech does not lose First Amendment protection “simply because its source is a corporation.” The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not “natural persons.”
What I find funny is that the same people against a bank tax because “it will be passed on to customers” support the Supreme Court's decision to open the money flood gates for corps but where will they get their money for these campaigns? Oh yea they will pass the cost on to their customers lol.”
I hope I'm not alone, I oppose both this SCOTUS refusal to use common sense and the Bank Tax.
Good summary of many of the issues Jazz. I'm with the ACLU on this one — a major blow for Freedom of Speech. Thank you SCOTUS!”
When you get a chance ask your constitutional lawyers if it's ok to play (insert your least favorite music or commentator) at full blast using my corporate truck fleet 24/7 from now to 2012. (Are local noise laws constitutional?) Things in moderation are ok, but campaigning for O, or P, starting now, is stepping on my right to pursue happiness.
I support “a bank tax” though I do not know much about this particular one. The reason I do though is only because if they need bailed out or insurance on being bailed out it should not come from the citizens that did nothing wrong but those that also need the insurance. It is akin to making sure those that own a car have insurance since they may need it, instead of asking all citizens to bailout every driver that could not afford the cost of their accident when most citizens do not even own cars. In other words banks of the size that would be “too big to fail” should be the ones subsidizing bail outs if they are needed/wanted. The reason is mostly because they need to insure themselves the people can't afford to do it as we have for 30 years or so for many industries, the other reason is that if you do not want them to pass on the cost move to another bank and the problem is solved. The big banks shrink and you did not pay a dime though the tax may not generate as much as hoped its still a win win.
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This post was mentioned on Twitter by cheapnotebook: When Speech Isn’t and Money Is: The Moderate Voice
Looking to the Founding Fathers doesn’t provide us much relief … http://bit.ly/7ERJqe...
The “bank tax” should be some form of return to Glass-Steagall, as advocated by McCain and a Democrat.
Done slowly as Barney Frank proposes would be a big tax on them but they need a separation of commercial and investment banking because current regulations seem to be inadequate. These guys are gamblers (genetic?) you have to take their taxpayer leveraging ability somehow.
Agreed, I would also add if Barney Frank is for it I am almost always against it, he is kinda like Pence for me…either of them speaks and I almost always disagree in strong and extreme ways lol.
Agreed, I would also add if Barney Frank is for it I am almost always against it,
I also used to be 100% anti-Frank. I don't know what has happened lately, but I now am agreeing with him sometimes. (Not that there is anything wrong with that- Seinfeld).
Which is the original problem. This court ruling is a logical continuation of a bad one (IMHO) made long ago. The constitution was written for natural people, and extending those rights to non-natural people is just as wrong as extending them for foreigners. I understand the need for consistency in judgments, but sometimes, they have to keep it from being consistently bad.
No, CO, that is factually untrue. The case to which you probably refer was Santa Clara County vs. Southern Pacific Railroad, in 1886. The railroad argued that they were taxed unfairly because the wrong tax assessor (for the county) assessed the taxes on fences, which are not real estate. Among the numerous arguments put forward by the railroad was the contention that corporations as “persons” were protected by the 14th amendment. Here's what Chief Justice Waite said of that argument:
“The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”
Waite and the court, however, did NOT rule on this issue. In fact, as Waite wrote “we avoided meeting the constitutional question in the decision.” And indeed they did. In the official written decision of that case, the court said,
“These questions belong to a class in which this court should not decide unless their determination is essential to the disposal of the case… Whether the present cases require a decision of them depends upon the soundness of another proposition, upon which the court, in view of its conclusions upon other issues, did not deem it necessary to pass.”
In other words, it was clear that the county should not have assessed taxes on the fences, so deciding on the constitutional issues was not necessary, AND WAS NOT MADE.
50 years later, SCOTUS Chief Justice Hugo Black said “I do not believe the word 'person' in the Fourteenth Amendment includes corporations… Neither the history nor the language of the Fourteenth Amendment justifies the belief that corporations are included within its protection.”
SCOTUS Chief Justice William O. Douglas said, 60 years later, “There is no history, logic or reason given to support that view [that corporations are legally 'persons'].”
As for what our founding fathers thought of the subject, here's a sample:
“There is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity by … corporations. The power of all corporations ought to be limited in this respect. The growing wealth acquired by them never fails to be a source of abuses.”
— James Madison
“I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country.”
— Thomas Jefferson
“In this point of the case the question is distinctly presented whether the people of the United States are to govern through representatives chosen by their unbiased suffrages or whether the money and power of a great corporation are to be secretly exerted to influence their judgment and control their decisions.”
— Andrew Jackson
More:
Martin Van Buren said “I am more than ever convinced of the dangers to which the free and unbiased exercise of political opinion - the only sure foundation and safeguard of republican government – would be exposed by any further increase of the already overgrown influence of corporate authorities.”
Abraham Lincoln said
More still
On that last point, I do not believe those on the right agree with “public interest and not private advantage” being the goal of government “of the people, by the people and for the people.”
The chasm between our core ideological beliefs is simply too wide to imagine a purposeful debate. I do , however, respect you for your recognition of the legal precedents that exist……which most all other commenters here simply choose to pretend do not exist.
Yours is a tough row to hoe…….you need to coordinate your political firepower to create enough populist officeholders to exist on the dates of further SCOTUS retirements. Then you need to start moving a whole plethora of cases up the judiciary chain and get them docketed with SCOTUS. You not only have a number of First Amendment cases to reverse, but property rights, due process rights et al otherwise you are left with troublesome conflicts in the notion that there are no rights to corporations. And if rights do not belong to state created persons, then be careful not to abridge the rights of citizens solely by virtue of state creation. I haven't given exhaustive thought to the matter, but enough to lead me to believe you shall be skiing down a pretty slippery slope for a good long while.
I would recommend that Republicans championing this decision go and read what their beloved Lincoln had to say on the matter when the movement to give corporations the same rights as individuals was new.
Are there any easy ones in the legal world?
Since they are created by the states, the states really should be the ones deciding these, but that also causes problems at the federal level. Maybe it would be best to assign fines to legislative campaigns that equal the amount of the donation, in order to limit the undue influence of corporations. It wouldn't hurt to have a constitutional amendment laying out the rights and limits of corporations transparently. I'm a fan of transparency.
My problem, as always, is how to fight the concentration of power into either public or private hands. This one does both.
Yes, a part of which is quoted above. And CO is wrong about this one. There was no SCOTUS precedent in favor of corporate rights under the constitution, nor any act of Congress empowering them.
[...] Shaw at the Moderate Voice takes that point about bipartisan influence and runs with it. Where are we to find the real damages to free speech from this decision? Not [...]
[...] Shaw at the Moderate Voice takes that point about bipartisan influence and runs with it. Where are we to find the real damages to free speech from this decision? Not [...]
Frankenstein was also a created creature, just like corporations. Please don't give him unlimited contribution privileges.
The Corporation is to a person, what a Portugese Man-o-War is to one of the individual symbiotic entities that make it up.
They're not the same, Corporations and people, even though the corporation is made up of people.
This is a terrible and dangerous turn of events, and when the people see what it does to their country, they're not going to like it. The question being, of course, whether there will be anything they can do about it.
We're going to have Global Financial powers battling for control over US politicians, and through them, control over US resources and security interests.
The ruling stopped quite a ways short of declaring corporations to have all the rights of people.
[...] Shaw at the Moderate Voice takes that point about bipartisan influence and runs with [...]
Did no such thing, merely pointed out that it does not differentiate but protects ALL free speech.
The Government is not empowered to decide who are the preferred speakers and who are not. The government lost their case when they said the laws applied to banning books as well.
Corporations share a single interest, and that's a very short-sighted interest in profits over the environment and over the health and welfare of the current and future generations of Americans and other citizens of the world. The other thing that corporations share is very deep pockets. Seems dangerous to me…it's the handing over of more power to the already powerful.
I have to agree that we shouldn't further concentrate power. I'm not so sure if people or corporations would be better advocates of your interests.
My main worry is that, since the advocates of this decision are most often conservatives, they're thinking that more corporations are conservative, and therefore this will help their interests. If so, I bet that they'll change their tune if it doesn't turn out that way.
You're right…people probably aren't any better than corporations at advocating for the things I care about. Now I'm really depressed:)