Tuesday, September 15, 2009

Free Speech and Campaign Finance

I've been meaning to blog about this for a week or so now, but there is a huge, huge case before the Supreme Court this term. That case, Citizens United v. F.E.C., raises the question of just how much free speech can be restricted in the name of campaign finance regulations. (Reason has more here.)

For those unfamiliar with the case, Citizens United produced a documentary entitled "Hillary: The Movie" during the 2008 presidential primaries, but was unable to advertise the film or offer it on pay-per-view because according to the F.E.C. such advertising violated provisions of McCain-Feingold banning "electioneering communications" paid for by corporate interests within 30 days of a primary. According to all reports, the Supreme Court is on the verge of overturning the FEC's decision, but what's unclear is whether such a decision would be narrow, applying just to this particular case or be more broad and strike down this entire provision.

One point of interest before I get to my larger discussion. One, the case drew interest earlier in the year when Deputy Solicitor General Malcolm Stewart claimed the FEC had the authority to ban books that fit this electioneering vein. This comment was retracted by current solicitor general Elana Kagan. Regardless of your feelings on the case, free speech, and campaign finance reform in general, it's pretty clear that the law of McCain-Feingold is broad, and the book banning argument is a perfectly reasonable interpretation. The question before the Court is, obviously, the First Amendment question, but it's pretty frightening that Congress comes up with laws in the first place that are ambiguous about something like book burning.

The response from the left has been ... interesting. It's mixed in that plenty of the left have no problem with the FEC's decision being overturned, but hope that it is overturned on narrow grounds. The interesting discussion point was noted by Reason's Ron Bailey last week: What are the free speech rights of corporations?

I believe I've dealt with the corporate question in this blog before, but it always amazes me that some on the left get their feathers so ruffled by the idea that corporations might have rights. One of the problems is made clear in the Citizens United Case. Citizens United isn't a traditionally evil; corporation, it's a non-profit. Yes, corporate form is defined by law, but ultimately, a corporation is a collection of individuals. As a collection of individuals, it's difficult to see the legal distinction between a for-profit company, a non-for profit company, and a loose collection of individuals organizing for a political purpose. The logical distinction is, of course, the money-making one, but that's not a legal distinction made in the Constitution or anywhere else.

Folks on the left always get very worked up about the notion of corporate personhood, worrying that our legal system has somehow given corporations rights to which they would otherwise not be entitled to. (Part of the problem is the philisophical place where this argument comes from, one where rights are granted by government and not held naturally by the people.) But when you break it down logically, it's pretty easy to see that it's much ado about nothing. The only special protection offered to corporations is the limited personal liability provided to shareholders, which is one of the driving engines of our economy. Other than that special protection, we're talking about corporations as having the same rights as any other collections of individuals. Forget about free speech and campaigns for a moment, but shouldn't corporations be protected by the 4th amendment? Or do you give your freedom from warrantless searches and seizures the moment your organization incorporates? Similarly, should the simple act of incorporating give up your to due process? And if you're a local organization, should you be free to speak and advertise on elections as candidates as much as you'd like but then be faced with severe restrictions the moment you choose to incorporate your organization?

The goal of campaign finance laws is always to keep big money out of elections, but the truth of the matter is that there's no way to really do that in a free society. Even under McCain-Feingold, the obvious loophole is that campaign finance laws don't apply to the speech of individuals. Bill Gates could have financed and produced the Hillary movie himself and there would have been nothing the F.E.C. could have done about it.

Ultimately, the FEC's pattern of enforcement and McCain-Feingold itself is about restricting speech in the days leading up to an election (30 days in the case of a primary, 60 days in the case of a general election) and this is a huge, huge problem people need to wake up and see. Speech is speech, whether it's a paid-for advertisement, a movie, or a book. The idea that bureaucrats sit around making decisions about what we're allowed and not allowed to hear in the weeks leading up to an election is just plain unacceptable. And it's one of those issues where I wonder whether or not supporters fully understand what they're supporting. We're not talking about campaign contributions here or money donated talking to political campaigns. We're talking about the independent speech of independent organizations and I just can't see on what planet that such speech would ever be a bad idea.


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