Watch out for Wednesday's Other Donnybrook
Amid all the nail-biting over Obama's health-care speech on Wednesday, a quieter but no less fateful challenge to the republic will unfold the same day as the Supreme Court hears new arguments that Citizens United -- a murky non-profit that made the swift-boating "Hillary: The Movie" -- was unfairly restrained in distributing it by campaign-finance laws curbing corporate "speech" in elections.
We're for free speech here, aren't we? So says the ACLU, which has joined with the National Rifle Association in this case to support Citizens United, a Trojan Horse for big, publicly traded, for-profit corporations that want to use the wealth we let them amass to "crash" public debate to enhance their own bottom lines and public subsidies protections.
That's not "free speech." It's bought, over-determined speech. Conservatives who profess loyalty to the Constitutional framers' "original intent" are being hypocritical in supporting Citizens United, which isn't remotely the kind of speaker the First Amendment's framers intended to protect. The Roberts court may turn such intentions upside down.
So, who's entitled to constitutional "free speech" rights, and who isn't?
In the early 1990s, when Rep. Les AuCoin (D-Oregon), a gun-control supporter, contemplated a run against Sen. Bob Packwood, an NRA lobbyist paid AuCoin a polite visit and slipped a video into his office TV showing the kind of ad the NRA would run against him, 'round the clock, if he didn't vote its way. AuCoin escorted the man out, ran against Packwood, and lost, partly thanks to the NRA.
The NRA's speech was protected, however - and so was its threat to "speak" -- because it gets its money from people who contribute voluntarily because they consciously support its positions. The same is true of Political Action Committees, which, under laws now being challenged, must also disclose their donors' names and limit how much they can give.
But if the Roberts Court sides with Citizens United, the unknown elites of a corporation you bought your car or washing machine from or in which you've invested (perhaps unwittingly, through a mutual or pension fund) will be able to use profits they've earned from you to do what the NRA does, but without any mandate from you or other customers and investors.
"In a democracy, citizens are the only legitimate sources of law," writes law professor Daniel J.H. Greenwood. But not if the Roberts court decides there's no distinction between the NRA and a big, anonymous business corporation when it comes to public debate and elections.
"Just imagine the impact on a member of Congress in the midst of deciding what to do on health care or climate control or banking legislation if the member knew that dozens of companies in affected industries each could spend millions of dollars . . . on full-scale campaigns to defeat or elect the member," Fred Wertheimer of Democracy 21 told Robert Kaiser of the Washington Post.
In the Boston Globe this weekend I've made a 700-word "civic-republican" case against mistaking these quarterly bottom-liners for free, deliberating citizens. The column has drawn comments you can read and also personal messages from law profs and court reporters.
I must thank the political philosopher Michael Sandel and the legal scholars Greenwood, Milton Regan, and C. Edwin Baker, (see Baker's "Paternalism, Politics, and Citizen Freedom") for breaking this ground.
Sandel has just written me to commend also Alexander Meiklejohn's Free Speech and Its Relation to Self-Government, and he says he's worried, "from the standpoint of civic-republican ideals," that "this Supreme Court will come down on the side of corporate 'speech' and eviscerate campaign finance restrictions."
If it does, the American conservative fetish for "individualism" will subject actual American individuals to the virtual dictates of corporate bureaucracies they can't deliberate with. These vast engines' multi-billion-dollar consumer marketing campaigns -- and, now, perhaps, electoral campaigns - titillate and stampede the clueless into pretending, all the more degradingly and violently, that they're free.
Do read and share the short Globe column and this post with friends, colleagues, students, and others who should follow Wednesday's arguments in Court, as well as Obama's health-care speech in Congress.
And, even though the guys at "Car Talk" will want to drive off a cliff when they hear me say it, read this splendid New York Times editorial warning of the dangers ahead.
I don’t think this is such a black and white issue. The idea of corporations as persons is abhorrent, but that a group cannot publish anything critical of a political figure is equally repugnant. I think that is why there has been so much compromise in campaign finance (restrictions but not bans).
The timing also seems germane. If this was broadcast in the middle of a campaign, it would appear to be a long political ad. At any other time, it is a documentary, biased, but that’s free speech. Political advocacy is at the heart of free speech.
If it were just a paper circulated around, would it be as offensive. Would it be more protected as speech? If it was just a speaker representing a corporation or industry touring America, even during a campaign, and making the same points as the movie, would banning the speech be censorship?
I do think it comes back to bestowing personhood on corporations, which needs to be changed, but someone has to decide what is and isn’t a group’s right to free speech. It's a fine line.
September 7, 2009 3:11 PM | Reply | Permalink
I should have added that it's a nice article, Professor, and I agree with it. I just don't know that the law as it now stands does. I think there has always been this cloud hanging over McCain-Feingold and now they have the court that will let it rain.
September 7, 2009 3:25 PM | Reply | Permalink
I grit my teeth and watched Bill Moyers Journal of 9.4.9. I think the Court (Roberts, Scalia, Alito, Scalias butt puppet, Thomas) is predisposed towards Corporatude uber alles and will use Floyd Abrams tack that First Amendment is paramount to other Articles and Amendments to justify their decision. This, regardless of any reasoned approach by amicus briefs such as delineated by the other guest, Trevor Potter.
September 7, 2009 4:46 PM | Reply | Permalink
laws curbing corporate "speech"
Hugo Black had it right..."No law means no law"
Putting scare quotes around speech doesn't mean that it is not speech for purposes of the Amendment.
I'm much more comfortable with undoing the 19th century footnote based grant of corporate personhood...
September 7, 2009 6:29 PM | Reply | Permalink
The ACLU has it right here. I'd like to see political film directors like Michael Moore stand up for the anti-Hillary producers on this one. Yes, big money has a louder megaphone and that's a problem but restricting speech isn't the answer. Like the ACLU, I'm going to stand behind these people's rights to express idiotic ideas.
September 7, 2009 7:01 PM | Reply | Permalink
Imagine where Healthcare companies throw up advertisements attacking President Obama in hour long infomercials simply because they can. Or where Energy Companies buy 1/2 hour slots to attack democrats on cap-trade.
Tell me that's a good idea. This would be an abominable shift by the Conservative Activist Court.
September 7, 2009 8:43 PM | Reply | Permalink
So people don't have the right to make a movie attack Obama? Again, I might think it's a stupid movie but... they have the right, don't they?
September 7, 2009 8:52 PM | Reply | Permalink
Corporations don't have a right to free speech. Especially if it is unrestricted. They may be considered to be an "individual" but corporations would actually be buying elections this way.
September 7, 2009 9:48 PM | Reply | Permalink
So what about one rich guy? If Warren Buffett uses only his personal liquid assets to make a political movie, would you restrict its contents? Of course, I pick Warren for a reason -- his message might even appeal to us. Wouldn't we scream bloody murder if some Republican judges shut him down?
September 7, 2009 10:35 PM | Reply | Permalink
I still think one solution would be to change libel laws so that political figures can sue for libel and defamation of character like the rest of us can--and how about making rewards a percentage of the assets of the offending party? If one cannot spread lies about me without threat of penalty, why should they be able to spread lies about Hillary or Barrack (or Mitch or Haley, for that matter) without penalty? Truth is an absolute defense against libel, and we could use a bit more truth.
September 7, 2009 10:47 PM | Reply | Permalink
Maybe we are coming at this from the wrong end.
What if we imposed a recusal standard (see, for instance, the West Va. Supreme Cojourt Case) where you could not vote or act on an issue where some donor reached some proportion of your total take?
In theory, the intervention of a nefarious and loathed cohort should alienate the electorate (Hell, it works in Iraq--we were the electoral kiss of death to anyone we supported)
September 7, 2009 11:10 PM | Reply | Permalink
When the first amendment was written, it applied to individual living people whose existance was independent of any legal structure. A corporation, however, by design has only a limited personhood, created by law. Constitutional questions of individual rights don't really apply. In fact, the only right a corporation has is the right to compete in the economy in an attempt to be a profitable business, within the limits of the law.
I can see why the ACLU would go to bat for Citizen's United, but I just don't think they're right here.
September 8, 2009 8:40 AM | Reply | Permalink
Ah, Yes.
Because a multi-billion corporation with control of several media outlets has precisely the same 'right' to free speech as a single unemployed individual.
And both, of course, have precisely the same 'effect' on society. And their words reach as many people - or have the potential to.
And we wonder why our country has become a corporate-owned militaristic cesspool populated in the main by idiots.
September 8, 2009 8:58 AM | Reply | Permalink
The problem with this is that many forms of expression like theatre or film are by nature collaborative. Brecht's Berliner Ensemble was a company too. Michael Moore works with production companies that are corporations.
What if I apppeal to George Soros to help fund a documentary about the war in Iraq. What if he gives me a billion dollars? Should my speech rights then be restricted when the check clears?
September 8, 2009 9:08 AM | Reply | Permalink
Lot's of good questions asked in the comments. Lot's of gray areas yet to be illuminated.
But no single law suit can answer all the questions or illuminate all the shadows. What's in question here is whether corporations have the same free speech rights as individuals.
No one is suggesting that the CEO of AIG has no right to free speech. But does AIG, a corporation, have that right?
It's a foregone conclusion, I'm afraid. This case was made by the majority on the Supreme Court for no other reason than to decide it in favor of their constituency - wealthy corporations and their friends who control them.
September 8, 2009 10:48 AM | Reply | Permalink
I'm pretty sytmied by this. If you ask me in isolation "Does AIG the corporation have the right to free speech" I might well say no.
But then what if you ask me "Does Talking Points Memo, also a corporation, have the right to free speech?" TPM is a for profit corporation, too, right?
Does Josh personally have free speech rights but not the right to speak through the company he's building?
September 8, 2009 10:55 AM | Reply | Permalink
I think what you need to do to understand the differences between some corporations and others is to read some of the links in the piece -- maybe my Globe column and/or Robert Kaiser's Washington Post column, just for starters, and maybe Daniel J.H. Greenwood's essay, for another.
And think just a little about what I say in my post here. The First Amendment was intended -- if you read what its framers said and thought about it -- to protect speech by citizens who are intending to persuade others, and perhaps to be persuaded themselves, in deliberating about what's good for the republic.
'Speech' by a business corporation -- say, an oil company telling us how much it values a clean environment -- is not speech by a real person who actually values a clean environment. It's an advertisement by a publicly traded company that's trying to cash in -- for one purpose, and for one purpose only (to enhance its bottom line) -- on a consensus about the environment which wouldn't even have emerged at all if the public debate had been overwhelmed by corporate ads. The oil company needs to make money for its shareholders. Beyond that it doesn't need to think about what's good for the republic and the society, and, indeed, it is barred by its charter and by market pressures from doing any such thing.
That's not the free speech of a citizen who is deliberating with others and is open to persuasion. There's no evidence that its shareholders, who fluctuate daily at the click of a broker's mouse, gave their money to the company because they signed on to any one of its messages. When this company starts using the shareholders' money to support a political candidate, as it could do depending on what the Supreme Court decides after Wednesday's hearings, corporate elites will be using shareholders' money for things shareholders didn't intend or even know about. They are shareholders only because some investment formula or broker told them they could make money that way -- so that making money is what drives the business corporation's speech. Nothing else drives it. Nothing else can. That's bad for public debate, because it overwhelms it with billions of dollars.
In contrast, a Political Action Committee has an open, obvious purpose and must disclose its donors and set limits on what they can contribute. And even a corporation like the National Rifle Association -- which is formed by willing members and other individuals who join and/or donate to it intentionally to advance a particular point of view and particular policies (virtually no gun regulations) -- is protected by the First Amendment. Business corporations and shell corporations that front for them shouldn't be protected. We the people charter them, subsidize them, and bail them out, and so we should be able to regulate them in this way, rather than let them use their wealth, which we allow them to amass, to set themselves up as the equals (and indeed the superiors) of citizens in debate.
September 8, 2009 11:48 AM | Reply | Permalink
There's a lot to think about there. Thanks for it, professor!
September 8, 2009 12:24 PM | Reply | Permalink
It's still not clear to me how you would define what sorts of corporations should be held to a more restrictive speech standard. So many entities such as artistic production companies and the press are registered as for-profit business corporations and include making money for their owners among their other goals. I believe TPM is in this category, as are large public companies such as newspapers.
I'd rather address the issue you're raising through a combination of transparency and corporate governance. Corporations that fund public information items should be obliged to report the expenditures, and the media pieces in questions should clearly display their sources of funding.
Your argument that shareholders end up funding messages they don't directly support is a little reminiscent of the old conservative complaint about union dues being directed to politics. I don't find either argument especially convincing. What we do need, for many reasons, is better corporate governance and shareholder democracy to align the corporation with its owners.
September 8, 2009 12:37 PM | Reply | Permalink
And even a corporation like the National Rifle Association -- which is formed by willing members and other individuals who join and/or donate to it intentionally to advance a particular point of view and particular policies (virtually no gun regulations)
Virtually no restrictions???? You're confusing the NRA with Gun Owners of America.
September 8, 2009 11:54 PM | Reply | Permalink
I agree with you on better corporate governance and transparency, but don't forget that people join unions ("voluntarily" or automatically) because their bodies are in a workplace and because their income depends on their labor. Shareholders are as thin as air, compared to that.
They don't really have bodies, if you think of how a person's portfolio changes at the click of a broker's mouse or in response to fluctuations in a mutual fund's formula. What I "own" as an investor may change from 11 am this morning to 3 pm this afternoon without my really being aware of it -- the reason possibly being that I've entrusted someone to increase my earnings, no other questions being asked.
"Speech" that emerges from that kind of swirl of connections isn't republican speech, and it's different from the pronouncement of a corporation that was set up, precisely, to pronounce -- that is, to advocate for some positions or policies its donors sign onto in funding or creating it.
September 8, 2009 1:48 PM | Reply | Permalink
By the way -- The arguments before the Court this Wednesday morning will last about 80 minutes and should be on C-Span's website shortly after they're completed.
September 8, 2009 1:49 PM | Reply | Permalink
The Supremes have already ruled that commercial speech is not protected speech. For-profit limited liability corporations engaged in speech for the furtherence of their commercial interests (And, by law, just what other legitimate purpose could a for-profit corporation have?) are transparently engaged in unprotected speech. A wealth person is a different type of legal entity altogether.
September 9, 2009 2:03 AM | Reply | Permalink