Friday, January 22, 2010

More on Citizens United

While libertarians, some conservatives, and free speech absolutists have celebrated the Supreme Court's Citizen's United decision, the reaction from Democrats, many progressives, and President Obama has been outrage and frustration at the presumed giveway to large corporations at the expense of the rights of ordinary Americans. Of course, as Reason's Matt Welch points out, it was ordinary Americans who were restricted by the previously existing campaign finance restrictions.

The plight of "ordinary citizens" is precisely the reason why non-Republicans like me (let alone many conservatives who refused to support John McCain) opposed the campaign finance laws struck down yesterday. When a law requires any group of two or more people who raise $5,000 for the purposes of making a political statement to adhere to a blizzard of federal regulations subject to fines, that law by definition chokes off the "voices of everyday Americans" that President Barack Obama, in his ridiculous reaction to the decision yesterday, expressed outrage on behalf of. Free-speech campaign-finance enthusiasts are willing to censor or chill those small voices for the greater purpose of attempting (and largely failing) to blunt the political activity of hated Corporations (or "Wall Street banks, health insurance companies and the other powerful interests," in the words of a president who has been bailing out Wall Street banks and crafting legislative deals with health insurance companies and other powerful interests for a year now). What campaign-finance supporters are not willing to do, at least most of the time, is admit that they're making any tradeoff on political expression at all.

Most of the outrage from self-styled progressives has focused on two major points: 1- That corporations have free speech rights and 2- That money is speech. Liberal constitutionalist and civil libertarian Glenn Greenwald responds to those points here, pointing out that neither of those points were directly addressed by either the majority or the dissent. (Greenwald's initial post, which provoked an intense negative reaction from his readership, can be found here.) Greenwald also poses a series of hypotheticals to those who claim money spent to spread speech is not protected by the First Amendment:

Anyone who believes that would have to say that there's no First Amendment problem with any law that restricts the spending of money for political purposes, such as:

"It shall be illegal for anyone to spend money to criticize laws enacted by the Congress; all citizens shall still be free to express their views on such laws, provided no money is spent;" or

"It shall be illegal for anyone to spend money advocating Constitutional rights for accused terrorists; all citizens shall still be free to express their views on such matters, provided no money is spent"; or

"It shall be illegal for anyone to spend money promoting a candidate not registered with either the Democratic or Republican Party; all citizens shall still be free to advocate for such candidates, provided no money is spent."

Anyone who actually believes that "money is not speech" would have to believe that such laws are necessarily permitted by the First Amendment (since they merely restrict the expenditure of money, which is not speech).

Do you actually believe that? I don't even find that argument sufficiently coherent to warrant much discussion.

It would be like saying: "No person shall be permitted to use a megaphone or television outlet to advocate liberal views -- there's no First Amendment problem: megaphones and television outlets are just 'property, not speech'."

And a similar list of hypotheticals to those who would claim corporations have no Constitutional right to free speech

Do you believe the FBI has the right to enter and search the offices of the ACLU without probable cause or warrants, and seize whatever they want?

Do they have the right to do that to the offices of labor unions?

How about your local business on the corner which is incorporated?

The only thing stopping them from doing this is the Fourth Amendment. If you believe that corporations have no constitutional rights because they're not persons, what possible objections could you voice if Congress empowered the FBI to do these things?

Can they seize the property (the buildings and cars and bank accounts) of those entities without due process or just compensation? If you believe that corporations have no Constitutional rights, what possible constitutional objections could you have to such laws and actions?

Could Congress pass a law tomorrow providing that any corporation - including non-profit advocacy groups -- which criticize American wars shall be fined $100,000 for each criticism? What possible constitutional objection could you have to that?

In some ways, the response on the left to calls for free speech rights for corporations mirrors the response on the right to calls for due process rights for terror suspects. People on all ends of the political spectrum tend to get hung up on law as an abstract concept, forgetting the logical formulations from which law flows. Even if you vehemently disagree with the Citizens United decision, you still need to come up with a cogent and logical system for the protection of rights. You can't completely separate speech from money because money is what enables all but the most basic forms of verbal communication. And you can't completely separate corporate rights from individual rights because at it's most basic, the corporate form is an organization of individuals.


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