Collective Conscious

The tone of Reason’s video is a bit sour for me, but the under­ly­ing logic has some inter­est­ing points. Think­ing of the “cor­po­ra­tion” as being fun­da­men­tally a pool of cit­i­zens’ resources makes intrin­sic sense. On free-​​speech grounds, I can’t see any­thing wrong with deny­ing sim­i­lar rights to cor­po­rate bod­ies as to cit­i­zens them­selves — yet as Rehnquist’s dis­sent­ing opin­ion from the 1^st National Bank of Boston v. Bel­lotti prece­dent said:

It does not nec­es­sar­ily fol­low that such a cor­po­ra­tion would be enti­tled to all the rights of free expres­sion enjoyed by nat­ural per­sons. Although a news­pa­per cor­po­ra­tion must nec­es­sar­ily have the lib­erty to endorse a polit­i­cal can­di­date in its edi­to­r­ial columns, it need have no greater right than any other cor­po­ra­tion to con­tribute money to that candidate’s campaign.

How­ever, issues of free speech are not what ought to be at issue with respect to the Cit­i­zens United deci­sion. The core prob­lem is the cam­paign finance restric­tions which have been imposed, even on actual cit­i­zens, by McCain-​​Feingold and other pieces of leg­is­la­tion.  We face cam­paign dona­tion lim­its, and enabling cor­po­rate orga­ni­za­tion to cir­cum­vent those restric­tions effec­tively inval­i­dates the under­ly­ing prin­ci­ples that inform campaign-​​finance leg­is­la­tion. A log­i­cal exten­sion of the unlim­ited polit­i­cal speech granted to cor­po­rate per­sons by the deci­sion would be that cam­paign con­tri­bu­tion lim­its them­selves impinge on our rights as cit­i­zens to free speech. In fact, this was the approach taken by the Supreme Court dur­ing Mitch McConnell’s orig­i­nal chal­lenge to the McCain-​​Feingold law (empha­sis mine):

[McConnell et al.] argue that the jus­ti­fi­ca­tions that ade­quately sup­port reg­u­la­tion of express advo­cacy do not apply to sig­nif­i­cant quan­ti­ties of speech encom­passed by the elec­tion­eer­ing com­mu­ni­ca­tions def­i­n­i­tion. That argu­ment fails to the extent that issue ads broad­cast dur­ing the 30– and 60-​​day peri­ods pre­ced­ing fed­eral pri­mary and gen­eral elec­tions are the func­tional equiv­a­lent of express advo­cacy. The jus­ti­fi­ca­tions for reg­u­lat­ing express advo­cacy apply equally to those ads if they have an elec­tion­eer­ing pur­pose, which the vast major­ity do. Also rejected is plain­tiffs’ argu­ment that new FECA §316(b)(2)‘s segregated-​​fund require­ment is under­in­clu­sive because it does not apply to print or Inter­net adver­tis­ing. The record here reflects that cor­po­ra­tions and unions used soft money to finance a vir­tual tor­rent of tele­vised election-​​related ads dur­ing the rel­e­vant period. Con­gress jus­ti­fi­ably con­cluded that reme­dial leg­is­la­tion was needed to stanch that flow of money. Finally, §304(f)(3)(B)(i), which excludes news items and com­men­tary from the elec­tion­eer­ing com­mu­ni­ca­tions def­i­n­i­tion, is wholly con­sis­tent with First Amend­ment prin­ci­ples as applied to the media.

The con­cern of the Court at that time was the way in which cor­po­rate activ­ity was cir­cum­vent­ing the express lim­i­ta­tions on polit­i­cal activ­ity set forth by stand­ing law. Fol­low­ing this deci­sion, 527 orga­ni­za­tions like Swift Boat Vet­er­ans for Truth took off, because they offered yet another legal way to cir­cum­vent the reforms. They, too, have since been restricted from issu­ing “coor­di­nated” cam­paign ads.

Now, if this is the direc­tion that courts plan to take Amer­i­can pol­i­tics, and if the free-​​speech prin­ci­ples of the First Amend­ment must be con­strued to allow it, so be it. I don’t nec­es­sar­ily dis­agree with that inter­pre­ta­tion; in fact, I do think polit­i­cal speech, even by cor­po­ra­tions, is a crit­i­cal part of any democ­racy. But the mish-​​mash of restric­tions on expen­di­tures, of both the hard and soft vari­ety, can’t pos­si­bly be con­sis­tent with those prin­ci­ples; and as the Court has already upheld the lim­i­ta­tions as con­sti­tu­tion­ally con­sis­tent, it’s by no means a pure issue even of free speech.