Duel re: Unrestricting Corporate Speech

Mike threw down the gauntlet:

“The appearance of influence or access will not cause the electorate to lose faith in our democracy” Justice Kennedy writing for the majority in the Supreme Court’s decision to allow unregulated corporate spending in Federal elections. You’ve gotta be kidding me.

And followed it up with this gem, which is quite funny:

News Flash: “Conservative Supreme Court Fellates Corporate Interests”

I responded by referring Mike to this Reason article, which essentially argues that limiting corporate / union speech for fear of ruining democracy is a classic example of the soft bigotry of low expectations.

This hyperbole betrays a belief—common among proponents of restrictions on political speech—that Americans, like lemmings, are merely dull creatures who can be easily led off a cliff. Thus, unless the government “protects” us from hearing corporations’ speech about politics, we’ll always vote in ways that benefit corporations because they will spend lots of money to convince us to do so.

This conclusion is as ridiculous as it is patronizing. * * *

The answer, of course, is that Americans are not imbeciles who mindlessly succumb to corporate advertising campaigns. We are fully capable of evaluating corporate speech on its merits; thus, we do not need “protection” from it.

Mike, um, disagreed:

This is really a bullshit Libertarian argument Ryan: “The answer, of course, is that Americans are not imbeciles who mindlessly succumb to corporate advertising campaigns. We are fully capable of evaluating corporate speech on its merits; thus, we do not need “protection…” from it”. Money buys votes plain and simple. The framers of the constitution were well aware of the dangers corporate influence could pose to a healthy democracy and I doubt their first amendment guarantee of free speech was intended to protect corporate influence over the political process. (Emphasis added).

He wasn’t done:

“Two centuries ago, the Supreme Court under Chief Justice Marshall first recognized that corporations are artificial creatures of the State, subject to government oversight to ensure they do not abuse the special privileges granted to them. Corporations cannot vote in elections, stand for election, or serve as elected officials, but the Court … today ruled they can overwhelm the political process using profits generated by the special privileges granted to corporations alone”.  http://seminal.firedoglake.com/diary/25541

Still wasn’t done:

Hard to argue against Stevens dissent: “corporations “are not human beings” and “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.” He insists that “they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”

I responded:

Well, here’s Scalia’s response to that: http://reason.com/blog/2010/01/21/antonin-scalia-vs-john-paul-st
“I write separately to address JUSTICE STEVENS’ discussion of “Original Understandings”… This section of [Stevens'] dissent purports to show that today’s decision is not supported by the original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment. It never shows why “the freedom of speech” that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form. To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters; but the dissent provides no evidence that their speech in the pursuit of those objectives could be censored….

The [First] Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals–and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is “speech” covered by the First Amendment. No one says otherwise.”

I haven’t read the case, and given that it’s nearly 200 pages I probably won’t have time. But this case, like so many other 5-4 decisions, likely reflects a much deeper, philosophical argument. Under the Majority’s view, as quoted above, nothing in the Constitution permits Congress to abridge the right of speech even with respect to corporate persons.

However odious the results of free corporate speech may be, the conservative wing of the court feels – as in so many other issues – that the proper vehicle to enable Congress to limit corporate speech is a constitutional amendment enumerating the power to do just that – rather than by a court decree which is arguably, or in fact, an extra-constitutional legal fiction.

Rather than directing your perhaps justified outrage at five judges, use your political speech to persuade our fellow man/woman to amend the Constitution to reflect your views. Like this law professor is doing: http://www.federalismamendment.com/.

An interesting aside is that, while ‘judicial activism’ (a term I use lightly because every judge at every level is is activist on some level – it’s like ADD, it’s on a spectrum rather than absolute ends) can accomplish desired ends far swifter than constitutional amendments (requiring, today, 38 states consent) an activist court in the 19th century doomed Indian Tribes through a number of legal and extra-constitutional fictions. For example, these fictions justified holding ‘title’ to Indian land by the ‘doctrine of discovery’ (granting Indians only a possessory interest so long as they occupied their land (in the European sense); unilaterally amending and abrogating US-Indian treaties; forcibly moving Indians West; allotting their reservations; and on and on.

Court fiats are a double edged sword with little or no remedy (except a different court) if you don’t like the Court’s result. The conservative viewpoint is a single edged knife the remedy to which is amending the Constitution. I prefer the later because it safeguards our Constitutionally enumeraged form of government and amendments effect greater, longer lasting change.

Mike disagrees with Justice Scalia:

I understand his originalist argument but for me the crux of the argument is whether extending the rights of free speech to corporations benefits or is injurious to a healthy democracy, which after all would’ve been of primary concern to the framers. It runs counter to common sense, common wisdom, and 100 years of court precedent to extend free speech rights to corporations.

Sorry I missed the rest of your reply (beyond the first paragraph). ooh wee baby. Have to tackle that one later. Thanks for your thoughtful response! Take it easy Ryan. TTYL

Just got around to reading your full post Ryan. Great stuff. Thanks for your insight.

Ryan hits it on the nose. I personally fear the Unions more than the “corporations” (that is a whole ‘nother thread), but I disagree with Mike on the crux of the decision, which I see as procedural, and not philosophical.

I see huge potential for abuse by opening up this avenue, but things need to be handled the right way.

I am pro-choice, but I don’t like the decision in Roe v. Wade (state’s rights, ninth amendment privacy, blah blah, etc.). Same sort of thing here…

On a more positive note, I would like to give a shout out to discourse. While emotions run high, I think that we (at least Mike, Ryan and I) might start to notice that our opinions are not so far apart as we may have thought before we started arguing about them.

Well put, and quite true Pila. I have a tendency towards rigidity of thought on some ideological sacred cows. Discourse grants flexibility and reveals common ground.

We all have our sacred cows. And yes they taste delicious. There’s strong policy arguments for and against restricting corporate / union speech. But note that Nevada, Utah, and Virginia have no restrictions on corporate speech in State elections; it hasn’t prevented Nevada from electing Harry Reid, Utah from electing a moderate governor (now serving in Obama administration), and Virginia from becoming (gasp) purple.

Duels, Socio-Political