Corporate Speech

The unusual re-argument of Citizens United v. Federal Election Commission before the Supreme Court yesterday gives us a window on the absurdities that sometimes arise when we enshrine reality in words. I’ll get to those, but the background first. At issue in this case is: Can government regulate corporate spending of money to influence elections? Is such expenditure protected by the First Amendment’s right to free expression or can corporations, artificial persons that they really are, be treated in a different way. “Corporation,” in this context, may be of any kind whatever–for profit or not-for-profit, thus including unions and advocacy groups of the left as well.

The history, nicely summed up by the Washington Post here: in 1907 Congress banned direct contributions from corporations to candidates. In 1947, Congress extended the ban to include expenditures by the treasuries of corporations and unions of money for support of candidates, including buying ads. In 1990, the Supreme Court decided (in Austin v. Michigan Chamber of Commerce) that states could ban corporations from spending dollars on political ads for or against candidates. In 2002 McCain-Feingold passed, a broad statute limiting the expenditures of corporations, unions, and political action committees. In 2007, the Supreme Court loosened the strictures of McCain-Feingold. It decided against the Federal Election Commission in two cases that it combined (FEC v. Wisconsin Right to Life and McCain et al. v. Wisconsin Right to Life). The Court permitted groups to use the names of candidates in ads—which, before this decision, McCain-Feingold forbade. Finally comes the current case, in 2009, which concerns the rights of a group to produce a film, Hillary, a work of straightforward political advocacy, and to show it over cable television.

The real issue in this conflict is whether or not corporate bodies can participate in politics as corporate bodies. In Austin the corporations lose, in Wisconsin they lose, in Citizens it looks as if they’ll win again.

I listened to the re-argument on C-Span. Those speaking for corporate rights relied on the notion that citizens, as stockholders, had First Amendment rights to speak—thus that the corporations were merely channels of citizens’ expression, the voice of citizens in their personae as stockholders. Those speaking in favor of curbing corporate bodies emphasized the artificiality of such bodies. The citizens’ right to speech is in no way curbed by preventing artificial persons from participation. Furthermore, many stockholders aren’t even citizens. They live in Germany, Brazil, Saudi Arabia, Japan, or wherever.

For the record, I don’t think that corporations are “persons” and have rights to free speech. But, at the same time, I think that that claim is ultimately irrelevant. And here is why. Let’s start with the First Amendment. It’s full text is here:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The entire core of this debate appears to center on words, “the freedom of speech,” not otherwise elaborated. I don’t find any references here to “corporations,” “unions,” or “stockholders.” Two institutional structures are mentioned: religions and the press. The First Amendment seems to link speech and other forms of communication by following “speech” with a reference to “the press,” which, in those days (1791) communicated by the printed word.

The difficulties become obvious. Speech is always associated with people. If a corporation speaks on behalf of its stockholders, do I, when I speak (I am a stockholder) speak for all of the corporations that I own? If it goes one way, it goes in the other. Logically, anyway. The First Amendment implicitly authorizes corporate speech by guaranteeing freedom of the press. The press manifests in corporate forms and, in its editorial comment, it is clearly a corporate entity that speaks, not the readers or the viewers.

Where do we draw the lines? We can speak as individuals; we can also speak as representatives. In this debate one side wants to eliminate any distinctions between the two modes; the other side wants to limit speech to individual speech. But how can we actually get there?

Ultimately this debate is about power. What exercises both sides is that individuals, organized as groups, exert more power than the same individuals possibly could speaking individually. The only way really to curb corporate speech would be to prohibit all organized forms of advocacy, including that of the media. And such a solution isn’t in the cards.

For this reason, I’ve concluded that however the Supreme Court decides Citizens United, the debate will simply continue. If they decide for the FEC, corporate groups to left and right will devise yet other work-arounds. If they decide for Citizens United, new legislation will be crafted. The sky will still be up there no matter which way it goes. And the uproar will just keep roaring up.