Wednesday, January 27, 2010

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.


Anonymous rose said...

Very nice post. I couldn't understand the uproar on the left either, but I think you nailed it. They think that the sheer volume of corporate money flows would make a mockery of one-person, one-vote.

I've heard a few libs, including Keithe Olbermann, complain that foreign companies are going to be able to impact US elections now. Even heard a few folks suggest that state-owned-enterprises of Venezuela and Saudi Arabia are gonna be successfully boosting candidates.

How delusional lots on the left get when it comes to BIG CORPORATIONS. If some Saudi Oil company runs ads for Mitt Romney in 2012 because Romney is opposed to cap and trade, Obama will get 85% of the vote.

Lastly, let's think about the context of Olbermann's democracy-is-dead tirade:

-Olbermann works for NBC, which is owned by GE
-Olbermann and his network are huge Obama supporters and global warming pushers
-GE has one of the biggest lobbying presences in congress of any corporation and they lobby specifically for cap and trade and anything else to boost demand for alt energy. GE's CEO has met w/ Obama multiple times this year.

-Oh and GE is a profit-seeking bigass corporation.

So in other words, in order to protect the little guy, we gotta restrict corporate freespeech to those corporations that can afford to acquire a media-arm.

1:56 PM  
Blogger lonely libertarian said...

You hit the nail on the head. I didn't get into it too much, but there's this attitude (sometimes stated clearly, sometimes implicit) that however you restrict corporate speech, the media should some how be exempt. So GE and Disney are completely free to speak through their media outlets, but corporations who don't own media outlets would be silenced. The insanity is, under this logic, Exxon-Mobil could by a radio station that broadcasts day and night in support of Republicans and that would be perfectly okay, unless of course you get in the business of the government determining which press entities are legitimate (which I believe the Obama administration is already familiar with).

The other thing I failed to mention are the real Marxist assumptions underlying the progressive point of view. Classical liberal theory extols free speech, as I discussed, but for Marxists, the whole idea of free speech plays into notions of false consciousness. Just as the working class in a liberal democracy may not realize they're being exploited by the capitalists, the voters in our democracy are supposedly unable to judge speech for themselves and may be swayed by powerful messengers. It's a denial of rational man that I find quite offensive- the poor and middle class are capable of making decisions for themselves and are capable of judging speech based on it's content.

7:26 PM  
Anonymous rose said...

I witnessed that attitude- that 95% of the population is so dumb that bad speech needs to be filtered for their own protection- just the other day.

Someone had posted on facebook a daily kos story about the US losing its AUTONOMY to foreign corporations because of cit. united(lol!). I pointed out how any pol backed by Citgo would instantly be labeled a shill for a Venezuelan oil company and would be finished.

And the response I got from this guy was something along the lines of, "you don't actually believe that. americans are too dumb to notice anything other than the hyped up soundbite delivered from the message."

Ironically, this sentiment isn't coming from some 55-year old Harvard poli sci professor who clearly is smarter, more educated and knowledgable than the average american, but rather from some 24 year old w/ an undergrad degree.

9:58 AM  
Blogger lonely libertarian said...

That's really it. It's as though people won't be able to rationally judge a political ad sponsored by Citgo. But I'd take it a step further. People should be able to judge speech based on it's content, regardless of who's conveying the message.

There's this entire industry of outrage built on this idea that money can buy elections and it's just simply not true. Do we really think the American people are so stupid that the candidate with the most ads is going to win? I took a poly sci class in college where we studied campaign expenditures in House races throughout the country and there was one inescapable conclusion- that incumbency was a far greater indicator of electoral victories than money. And for any individual cases you can point to (say Obama over McCain, Bush over Kerry) where money wins out, you have to consider the possibility that the more popular candidate is simply able to raise more money in the first place. As I always like to point out here, correlation is not causation.

And finally, doesn't it all come back to this, from South Park's Die, Hippie, Die:

Stan: So it seems like we have enough people now. When do we start taking down the corporations?
Man 1: [take a deep drag from his joint] Yeah man, the corporations. Right now they're raping the world for money!
Kyle: Yeah, so, where are they. Let's go get 'em.
Man 2: Right now we're proving we don't need corporations. We don't need money. This can become a commune where everyone just helps each other.
Man 1: Yeah, we'll have one guy who like, who like, makes bread. A-and one guy who like, l-looks out for other people's safety.
Stan: You mean like a baker and a cop?
Man 2: No no, can't you imagine a place where people live together and like, provide services for each other in exchange for their services?
Kyle: Yeah, it's called a town.
Driver: You kids just haven't been to college yet. But just you wait, this thing is about to get HUGE.

11:31 AM  

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