Supreme Court gives victory to free expression

The Supreme Court rendered a decision Thursday destined to significantly alter the shape of future elections, ruling that companies and labor unions can spend their own money on political advertisements that are uncoordinated with the campaigns of specific candidates. The case pitted the court’s five conservative justices, including swing vote Justice Anthony Kennedy, against the four liberals. The division along ideological lines highlights the struggle ensuing in many areas of government between liberty and the persistently anti-corporation attitude of the left.

The arguments presented in defense of campaign finance regulation claim that large companies would be too influential in protecting their own interests if allowed to spend from their own treasuries on advertisements. Often this interest is the preservation of America’s free enterprise system, as it is with the opposition of the health insurance industry to the current reform proposals and that of American banks to further financial regulation. Attempts at silencing these businesses because of their participant role in the economic system under attack by Democrats are thus a subtle and indirect content-based restriction on free expression. While Democrats persisted in trying to prevent companies from mounting their opposition, those who are thinking more clearly value their perspective – if anything, the vehement admonitions of the health insurance and pharmaceutical industries ought to awaken us to the detriment of current proposals.

With this ruling, businesses will be free to express themselves on these issues, just like regular Americans; under a now over-turned previous court decision the government could bar companies from spending money on campaign ads. Parts of the McCain-Feingold bill were voided which banned issue ads late in the campaign cycle. The issue at hand was the challenge to a video criticizing Hillary Clinton produced by a conservative advocacy group.

As I argued in a previous post, throughout the constitutional history of free expression, the rights of speech and press have been extended to financial capability. Some of the earliest attempts at censorship in America were licensing laws or taxes designed to hurt publishers financially and thus stop the presses. Such efforts are now unconstitutional; it is only logical that total disqualification from expression based on financial capability is now unconstitutional, as well.

34 comments

  1. "Often this interest is the preservation of America’s free enterprise system, as it is with the opposition of the health insurance industry to the current reform proposals and that of American banks to further financial regulation."

    This is laughably naive — corporations have a single interest, making more money. "Free enterprise" is for the rubes. Can you name a few major corporations that aren't heavily dependent on public subsidies and contracts?

  2. It's only laughably naive if you assume I am ignorant of corporations' interest in making money – that is a part of their interest in preserving the free enterprise system. My general belief that companies acting on that interest is to our benefit gives the argument its logic.

    Your other point seems to hit at a different issue of which I'm not sure of the relevance.

  3. Again, here is my argument: I thought conservatives loved freedom?

    By allowing corporations to spend money in elections, we would, in essence, allow foreign governments and entities to mettle in our politics. There are many corporations that are largely owned by foreign investors. I know it is an extreme and perhaps hyperbolic statement, but would you like China to be influencing who gets elected in this country? How about those despicable, socialist French?

    We're basically extending "free expression" to foreign countries and entitites.

  4. "My general belief that companies acting on that interest is to our benefit gives the argument its logic."

    Not exactly what I'd call logic, in both its argumentation and the assumption itself. Businesses have never made decisions that disadvantaged the public good.

    "…businesses will be free to express themselves on these issues, just like regular Americans…"

    "Regular Americans" don't have billions in other peoples' stock with which to buy themselves favors from all levels of government.

    1. "Some "regular Americans" do have billions of dollars. Should we erase them from the political realm?"

      No. But we shouldn't let them have a bigger say in elections just because they have deeper pocket books. The lowest paid employee at Wal-mart can more or less only vote with a ballot. Sam Walton doesn't deserve a ballot, and 19.2 billion dollars with which to vote in the media. I don't know about you, but I don't care much for plutocracy.

      As a side note, I'm continually surprised by the lack of philosophical opposition to corporate power from the modern right. Conservatives think they sniff out the evils of collectivism under every rock on the left-wing, but when it comes to the overwhelming power of corporate collectives there are few critics on the right to be seen.

      1. The Court says it better than I ever could. Let me quote the opinion:

        "The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censor-ship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful inexpressing their views on matters of public concern. Its theory, if accepted, would empower the Government toprohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations—as themajor ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy."

      2. The Court also wrote, of the super-rich corporate leadership, "The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt. … Ingratiation and access, in any event, are not corruption, and the appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy."

        No sir, when everyday Americans see multi-national corporations with billions of dollars in assets dropping money on politicians like it's their job (because now, in part at least, it will be), they don't think anything is amiss. That's just everyday democracy. I got to hand it to Scalia and co., they're some really smart legal surgeons. No common-sense conservatives, these.

        The dissenters, who in a strange historical irony might in fact more accurately be termed "Protestants" here, say it better than I ever could.

        "Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests ofeligible voters. The financial resources, legal structure,and instrumental orientation of corporations raise legitimate
        concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races."

      3. Your concerns about the voice and power of entities larger than the individual derive from your left-wing perspective more than they derive from a concern about individual liberty.

        In a market system, actors vote with their money: Boeing buys parts; McDonald's chooses suppliers; Wal-Mart outsources product demonstrations to another firm. These actions, taken by individuals (hopefully) incentivized to act generally according to the interests of the capital that made the firm's existence a reality and that made the firm's demand for labor possible, have enormous influence over the lives of individuals. But few long-term decisions in our society are really made by individuals; they are shaped more by the general will of the collection of individuals that make up society. In a capitalist economy, capital and labor are reshaped in part according to these collective decisions.

        For example, if people don't way to buy Windows Vista because it is junky, they may buy Apple computers.

        Most economists recognize that these reshaping decisions, made by those in positions of power but shaped by forces of the collective, don't require government intervention. There's no need for the feds to raid Redmond, fine and jail the controllers of capital (putting labor out of work), and divest its owners (stockholders) of their short-term decision-making capacity just because the corporation is in a position of power.

        If the corporation is speaking, it's probably because the owners of this capital have something to say about the very powerful interests of government. When a populist President goes on a crusade against private interests, those private interests should be free to use their power to defend themselves against the voice and power of an overbearing master seeking votes. Shouldn't individuals be free to hear both sides of the story? According to your point of view, only the Federal Election Commission and elected officials may speak on political issues close to election time.

        Political power can be just as strong and overbearing as economic power. The two can be useful counterbalances, and can check each other. I like it that way.

      4. You know, I was wondering why I was so upset about this issue. For a while I was starting to worry that I was actually concerned about the voices of regular Americans, most of whom are not largely invested in corporate America and don't know how to wield the reins of large corporations, and therefore will now have their voices drowned out even more than they already are in the lobbyist-infested, revolving-door corporate playground that is Washington DC. But you've solved my problem: I'm actually just too ideologically inclined.

        Because there's clearly no ideology involved in your perfectly reasonable idea that "if [corporations are] speaking, it's probably because the owners of this capital have something to say about the very powerful interests of government." There is absolutely no naivete involved in the assumption that corporations don't try to manipulate or hoodwink people and public institutions when they are left to their own devices. They clearly only speak out when they are being oppressed by an overbearing master. Corporations never pick fights on the playground and they never steal other people's lunch money. It's so easy to follow the rules, when there aren't any rules to follow.

        I'm well aware of the way that markets work, thank you very much. But just as the Court is now confusing "metaphor with reality," in the words of Rehnquist on the corporate personhood question, so you are confusing metaphors with the idea of voting in the marketplace. Yes, it is a useful metaphor to say that consumers and investors "vote" in the marketplace with their dollars, but this isn't really comparable to "voting" in the sense that it is used in political discourse. In a democracy, one citizen gets one vote. Citizens cannot aggregate votes by being wealthier than others, as they can with the metaphor of voting in the market. Some of the American founding fathers thought that they should be able to aggregate votes; others did not. Those who thought that they should were wrong, and their ideas have been discarded. This is because economic markets and political elections, while similar in some ways, have fundamentally different aims, even with your naive view of capitalist economic pluralism. This is why markets and elections need to operate on different principles. This is why we don't give the rich more votes based on how much money they have. This is why treating money as speech is going to undermine our democracy. It amplifies an already amplified voice. In the words of Johnny Q, "I'm of the belief that corporations already have a great deal of influence in Washington." More than a great deal, in fact. An undue, corrupting amount. And I would bet a CEO's yearly bonus that most Americans agree with me.

    2. You can't equate corporations and individual citizens. If that is your argument, then should we not allow corporations to run for office and vote?

  5. The like and dislike button make this site look childish. A bunch of kids in their fourth year living in the dorms standing around a computer in their underwear giving each other high-fives.

    You and bweynand are getting at the same point here: "With this ruling, businesses will be free to express themselves on these issues, just like regular Americans…"

    Therein lies the issue; they don't express themselves like other Americans. They have far more means by which to do so, through corporate mechanisms, through lobbying levels of government, through campaign contributions and so on.

    One way Duke Power garners power in North Carolina is to encourage its employees to run for town councils. In that position, they have job security, because they can pass zoning ordinances favorable to the company. Free-market until you have your retirement tied up in property that the power company wants, aren't we?

    Those individuals with billions of dollars ought to have every right that every other American has, but not any more. All this ruling does is allow companies to use their money (which, in a very real sense, is not theirs but our money) to push for their desired legislative outcome. I don't know when free-market became synonymous with corporate baronism; they are far and away different things.

    1. But then consider the case of media corporations, such as CNN, MSNBC, and the like. Why should these corporations be allowed to trumpet their political views, while other corporations cannot? This ruling appears to level the playing field in that respect by putting all corporations on equal footing.

      Also, I'm not sure that you can lay claim to money that you've traded with a corporation in exchange for some good or service. You've surrendered ownership of that money in exchange for whatever you bought from the corporation. Unless of course that you want to claim that you don't actually own anything: all your DVDs are owned by Best Buy, Home Depot owns your refrigerator, while Food Lion owns all your cereal.

  6. I'm not talking about that. I'm talking about subsidies, tax breaks, bailouts and no-bid contracts. Not money you willfully trade. Duh.

    This "trumpet" business is hyperbole, but I don't put it past any writer of this publication to speak in categorical certainties and then expect to defend an argument using that as a base.

    Comparing it to the press also misses the point of the legislation, and even the post: financial contributions. Until now, companies, print & publishing or otherwise, were allowed to do that. So what's your point?

  7. If that is indeed what you meant, I suggest that you be a little more careful with your choice of words in the future. Corporations sell you stuff, which you buy with your money. That money enters into the "their money" you referenced above. Duh.

    How does "broadcast" sound? These networks, even outside their normal news reporting, broadcast political views via their political commentary shows.

    It all boils down to a free speech issue and the privileging of some people's speech over others. While the networks may not have been directly contributing to candidates' campaigns, they did spend money to produce their various political shows which in turn ended up benefiting some candidates over and above others. The lawsuit brought by Citizens United demonstrates that corporations outside the media that attempted to produce their own political media using their money could expect a lawsuit from the federal government.

  8. I think this is less about my "word choice" (by which I think you mean my locution) as it is about your failure to think critically, but from here on I'll be sure to keep it elementary.

    Broadcast companies broadcast ideas. This is a clear and existential threat to the rights of non-human entities.

    Does that mean that every newspaper that carries Charles Krauthammer fully endorse his views? What if that paper carries Leonard Pitts two days later? This is ridiculous.

    Mseelingerjr, if that is indeeeeed your real name, the difference between columnists and editorial columns is obvious, or at least it should be. If you didn't know that columnists don't represent the views of a paper, they don't. Why is it hard to understand that commentary shows that are based around broadcast personalities (Beck, Dobbs, Zakaria) are a broadcast version of a column?

    Yes, it does boil down to privileging the speech of some over others: with this ruling, the boardroom now is louder than town hall. The money being used to make political media doesn't belong to them; it belongs to a company, which is not a person and does not have rights.

  9. True statement. However, it still costs a corporation money to broadcast or run the column/commentary either through real costs (on things such as page space and air time) and the opportunity cost (such as running another program or simply running ads).

    You're argument regarding boardrooms and town halls is a slippery slope. While companies are not people, it does not follow they do not have rights. They clearly have rights regarding contracts and that sort of thing. They also have the right to sue and be sued, which also entails a right to due process, etc. So, it does appear that corporations do have rights. I have yet to see why free speech shouldn't be among them, and it would appear that the Supreme Court agrees with me.

    1. Corporations only have rights that are necessary to conduct business. Due process is a good example. How could our nation function if businesses had no way of legally interacting with people and other businesses? But that does not mean corporations should have all the rights that we do. Corporations should not have the right to free speech because everyone who is associated with a corporation already has that right. In other words, why should we let shareholders, CEOs, etc. "double-dip" in our constitutional salsa?

      I find you all to be quite hypocritical: one day you thump the Constitution in Obama's direction for perceived unconstitutional acts — the next you're rewriting the document to include corporations as constitutional benefactors. Do you really believe giving corporations the right to free speech was the Founders' intent?

      It is fair to say that the Supreme Court agrees with you, but don't think for an instant that a 5-4 ruling is settled law.

      1. And the hypocrisy doesn't stop there. So far the CR crew has been tight lipped on the equally important philosophical questions of individualism and corporate collectivism that this ruling raises. I wonder if they are conceding the point? Chris Jones has been the only one willing to display even a little skepticism at its implications.

      2. If you'll allow me to thump the Constitution a little bit more… The first amendment states "Congress shall make no law… abridging the freedom of speech or of the press." You'll notice that within the first amendment, it doesn't say that freedom of speech is restricted solely to individuals. In fact, it doesn't restrict it at all. Congress is prohibited from making laws that infringe on anyone's or anything's right to free speech. You'll also note that shareholders, CEOs, etc. are all individuals, so you contradict yourself anyway. Why should I lose my right to free speech simply because I decide to buy into a company or happen to work for one?

        Also, if a Supreme Court ruling isn't settled law, then what is? There all of two ways this could be reversed. Either the court could overturn its decision (unlikely as they just issued it) or the Constitution could be amended (also unlikely). They're the final court of appeal, short of Obama appointing himself dictator, I don't see how this could be overturned.

      3. Yes, but free speech is restricted by the government. You can't yell "fire" in a crowed movie theater, for instance. So, your point is not valid. Unless of course you're against restricting free speech in similar cases which would put you in the ideological minority even amongst conservative thinkers. And let's take this further: if free speech is not restricted at all, then should we allow foreign governments to purchase political advertising on our television networks? How about bestowing free speech (and other rights) to animals? Hedge funds? You see, you can't simply adhere the literal text of the Constitution to present issues. There were no corporations or political TV ads when the Constitution was written — we must therefore consider intent when crafting legislation.

        I did not contradict myself. You missed my point entirely. As I said, shareholders, CEOs, etc. ALREADY HAVE the right to free speech. They don't lose it by buying into a corporation. However, by allowing them to, in essence, to "re-exercise" their right to free speech through a corporation, you are privileging their speech. You have the right to free speech whether you own stock or not; I don't understand how restricting the free speech of corporations — *things* that are created by laws — is restricting the free speech of those who are associated with said corporations. They can still exercise free speech as they please without the added benefit of having their voices amplified by their corporation. In fact, the word "abridge" can imply that Congress ought not diminish the right to free speech. By allowing corporations to spend freely, I don't think you can argue that the Supreme Court hasn't abridged the right to free speech of millions of Americans.

        "Settled law" is a legal concept. If an even controversial decision has been the law for long enough without having been legitimately challenged, it's said to be settled law. Citizens United v. Federal Election Commission, a 5-4 decision with a flawed majority opinion is not settled law. A change in the make-up of the Supreme Court, even by one judge, could overturn the decision.

  10. So the strength in your argument is not in that they said it but that they didn't NOT say it? Rather, a marketed personality didn't NOT say it? Patent silliness.

    Legally speaking, groups can be legal "persons" for the sake of lawsuits and to defend property rights, but that is far from individual rights. To over-personify them in this way is an existential threat to the legitimacy of our democracy.

    1. No, that's called economics. The first part of my argument should make sense. It costs money to produce political commentary. Political commentators don't just volunteer, and neither do the producers, technicians, researchers, and everyone else necessary to put that person in front of the public eye. If you're unfamiliar with the concept of opportunity costs (which apparently you are), then I suggest you get yourself into the nearest Econ 101 class and learn some basic theory.

      That is also far from having no rights. There is also nothing in the Constitution to suggest that free speech is limited to individuals only.

  11. If money is speech, then constitutional rights vary directly according to income. Compared to ADM or Goldman Sachs, my own right to free speech is negligible.

    Now, I don't know why this decision is upsetting to Democrats per se, because the largest corporations have demonstrated that they are more interested in backing candidates who win elections rather than those of any particular ideology — contrary to the OP's impossibly naive belief that multinational corporations have a primary interest in the "preservation of America’s free enterprise system." I am still laughing at that one. I am also eagerly awaiting the arrival of the xenophobe brigade, once they figure out that this decision will greatly expand the influence in US elections of foreign-owned corporations and governments.

  12. If money is speech, then constitutional rights vary directly according to income. Compared to ADM or Goldman Sachs, my own right to free speech is negligible.

    Now, I don't know why this decision is upsetting to Democrats per se, because the largest corporations have demonstrated that they are more interested in backing candidates who win elections rather than those of any particular ideology — contrary to the OP's impossibly naive belief that multinational corporations have a primary interest in the "preservation of America’s free enterprise system." I am still laughing at that one. I am also eagerly awaiting the arrival of the xenophobe brigade, once they figure out that this decision will greatly expand the influence in US elections of foreign-owned corporations and governments.

    1. 527s and 501c4s are already barred from supporting specific candidates.

      I don't think this decision is going to change much at the national level, where corporations already have undue influence over elected officials (and unelected ones, via the revolving door between business and government). At the state and local level, though, what's to stop a corporation from stacking a town council or elected board with its favored candidates? In local elections where a candidate might spend $10-20K or less on a campaign, a large corporation could easily dominate the political process.

      1. The same thing can be said about unions, which brings us back to my original question of why it's ok to privilege the speech of some select groups over that of the corporations.

  13. That was in fact exactly what I said. I even gave examples. My point was that there are costs (monetary and otherwise) attached to a media corp's decision to run political programming. I'm not particularly concerned about why they run the programming (either to advocate an agenda or to meet demand), the end result is the same. Also, I will throw in, that CNN is facing some real trouble with its ratings, particularly with their political programming. So, at least in this case, their concern does not appear to be to meet market demand.

    Should make sense, as in should make sense to any normal person. I really don't understand why this is so hard to understand.

    Campaign contributions are an extension of free speech. I never said that because people can do it, corporations can too. I merely pointed out that there is nothing in the Constitution that forbids corporations from taking part in the same rights as people.

    Also, I found this article particularly enlightening regarding how far the government intended to take this whole campaign finance thing.
    http://www.washingtonpost.com/wp-dyn/content/arti

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