Money, Speech, and Corporations

I'm coming back to this back to this because it's an important debate, the outcome of which underlies our understanding of freedom, democracy, and natural rights. As I mentioned in the last post, those on the left are furious that, 1- corporations have rights, and 2- that speech is money. On the surface, these are very persuasive complaints, but it doesn't take much digging to show that there's not much of a logical, strong philosophical basis to ground those arguments. My last post on the subject linked to Glenn Greenwald's various hypothetical on the subject and what I've got here is one more all-inclusive hypothetical involving abortion rights (based on Eugene Volokh's discussion on the Volokh Conspiracy) along with some other major points.

First abortion. Eugene Volokh points out that sure money isn't speech, but money isn't abortion either. Money is necessarily tied up with almost everything we do because that's the nature of the world we live in. Saying you can't spend any money on speech or you can't spend any money on abortion has the same practical effect of banning the right in question. We can apply the same logic to corporations. If corporations have no rights, than what would be a problem of a ban on all abortions performed with corporate resources?

In terms of corporate rights, the fact of the matter is that corporations are organizations of people and not simply inanimate objects. The idea that corporations have no rights is facially absurd and I would just invoke the 5th and 14th amendments here. If corporations have no rights, than they are not entitled to the Constitutional guarantees of due process and could have their property and assets seized by the government at any time and have absolutely no legal recourse.

What many on the left would like is for the rights of corporations to be limited by the government, but there is no Constitutional basis for distinguishing corporations from other groups of individuals. I suppose one could argue that the logical basis for making a distinction would be that corporations are profit-seeking organizations, but this wasn't a distinction in the campaign finance laws which applied to both for-profits and non-profits. Furthermore, if the basis for such a distinction is the profit motive, than such logic could be extended to individuals as well. It makes little sense that groups of individuals engaged in a profit seeking enterprise could have their speech rights limited, while individuals acting alone would be free to speak in furtherance of their profit seeking activities. The slippery slope here is that any speech in furtherance of one's own economic interest could logically be restricted under this argument.

I've been trying to come up with a reason some progressives are as upset and frustrated about the decision as they are and I finally have some ideas. The problem is that many folks on the left, including perhaps the dissenters on the Court, have mistakenly entangled Constitutional notions of equality with the Constitutional protections of free speech, primarily because the speech were dealing with is directly related to the election of our government officials. This notion of one man, one vote has been extended in to the realm of electoral speech, where large expenditures on electoral speech are truly feared by the left.

Ultimately though, free speech has zero connection with voting rights or any Constitutional protections of equality. Put aside the question of money for a moment and consider that each and every one of us have various capacities of persuasion. The power of speech of a mentally impaired person is not the same as that power for Barack Obama or a writer for the New York Times. And just as obviously, each and everyone of us have different financial resources and different standing from which to disseminate our speech. Speech is inherently unequal and nothing- not laws or Fairness doctrines can ever gives individuals equal powers of persuasion.

So yes, some people are more convincing than others, people have access to different sorts of soap boxes to disseminate their speech, and financial capacities to disseminate speech are drastically different. And there's nothing wrong with this. To return to it's classical liberal roots, free speech theory developed because of the ability of rational people to discern the best speech in a free market place of ideas. Given the opportunity, good ideas would win out over volume and the danger of bad ideas drowning out good was not a real concern. But even if it were a concern, the real problem is that there's no fair way to restrict the volume of speech. It's easy to place restrictions on those who want to buy tv ad time, but what about the newspapers and media outlets that already have access to millions of ears?

And it's all fine and dandy to separate the press from other large corporations (as Justice Stevens apparently did in his dissent), but there's no Constitutional basis for that distinction. There's a major problem with laws that say to Wal-Mart "you can't spend any money on political advertising which supports or opposes candidates for office" but then allow the New York Times and Fox News to make endorsements to millions of readers and viewers seven days a week. Freedom of the press is mentioned in the First Amendment, for sure, but there's not a single Supreme Court precedent that bestows on an institutional press special rights that don't apply to other groups or individuals.

The big point is this: There's no right to any sort of equality in regards to speech and it's not just that it's not in the Constitution or that it's a bad idea, it just plain doesn't work. We can pinpoint equality in the democratic electoral process with one man, one vote and you could even see how income inequality could be achievable by counting dollars. But as we've seen with these pernicious aspects of campaign finance reform, attempts to equalize speech invariably lead to censorship.