Free Speech and Money: A Nonpartison Issue

September 22, 2009

Unless one is very active in looking for and absorbing a variety of news sources which treat matters with some depth, one might miss a critical event thats about to occur.  The U.S Supreme Court is probably going to gut McCain Feingold and give corporations unfettered power to make campaign contributions. 

As background, the Court held a number of years ago, in ruling that the federal government had only limited right to regulate campaign contributions, that, effectively money is speech and the first amendment bars limits on the freedom of speech.  Recently, several corporations made contributions to the cost of producing an anti-Hillary film that was to be aired right before an election and the lower courts (upheld by the Court) determined the film to be a campaign film.  The Court will now determine whether that film can be shown as a campaign presentation having been funded with corporate contributions outside the limits of McCain Feingold.  The premise of the ruling requested by the film’s producers is that those corporations are “persons” and therefore are entitled to first amendment protection in the form of the right to use its wealth to influence elections.  The ultimate ruling is now likely to be in favor of the producers based on the alignment of the Court, with Kennedy, the regular “swing” vote siding on the ‘right’.

Is this the right decision and why should we care?  As to the first question, there are liberals and conservatives on both sides of this issue.  Politically speaking, there are liberals who see this as an opening for political contributions by “Big Labor” in addition to big business and there are conservatives who’d rather not see unions have an expanded role in campaigns.  In fact the producers are represented by a well know first amendment attorney who has worked for many ACLU causes.  And they say “politics makes strange bedfellows”. 

But lets look at the two legal issues, is money a form of speech and are corporations “persons” entitled to first amendment protection.  As to money equating to speech, an example might help.  Last year I made $500 in political contributions in an effort to make my voice heard in a local election not governed by McCain Feingold.  That was all I could afford.  This enabled my candidate to purchase roughly 3 seconds of local TV airtime.  Concurrently a local gaming company privately held by a local family backed the opposing candidate and contributed orders of magnitude more to that candidate, giving enough money to purchase hours of local TV air time.  In effect, that corporation’s contribution enabled it to drown out my voice by the sheer weight of its contribution.   In effect, that family is permitted by virtue of its wealth to have a greater and very direct impact on the outcome of the election. 

And if money is speech does a corporation really have a first amendment right?  Did the framers of the Constitution really mean for Congress to be hamstrung in its rights to control corporations?  Did they even think about corporate entities?  While corporations did exist at the time, they were nothing at all like the corporations of today.  They were not the megaliths that exist today.  And they had little if any political role.  And if they are “persons” for purposes of the first amendment, is that because of the constitution or because of the State laws that creates them and treat them as a “person”.  And what of the concept of “strict construction”?  Why is it that the 5 Justices who decry judicial activism the loudest when the fourth amendment is stretched to bar limits on abortion because abortion is not an express right, are not saying that corporations are not mentioned in the constitution and so have no rights? 

The whole concept of free speech is that the free flow of information in the marketplace of ideas assures that the electorate will have the opportunity to make its decision on the basis of all available concepts.  Freedom of speech does not require that wealthy be given a higher podium in that marketplace or more time at the podium so as to tilt the playing field in their favor.  But when we allow corporations to use their wealth to monopolize that marketplace, to overwhelm it with their ideas and values, the values and ideas of the less wealthy, of which there are far more, are drowned out to the point of irrelevancy.  When one looks at the data of the last generation of elections, the one fact that jumps off the page is that the candidate with the most money to spend wins a greater percentage of the time than any other single determinant, i.e. the vast majority of the time.   And the margin of victory is generally directly proportional to the difference in funding.  Therefore,  one can conclude with some certainty that, if corporations are allowed to pour significantly more dollars into elections, they will have a significantly greater impact on the results.  One can reasonably argue that this will move us from a Democracy towards a “Corporatacracy” where the greatest share of political power is wielded directly and clearly by the wealthy, corporate interests and not by individuals.   Does the first amendment really require this?

5 Responses to “Free Speech and Money: A Nonpartison Issue”

  1. wf said

    Hi. I don’t like the idea that people, let alone companies, with more money should have a more prominent voice in our democracy than those with lesser resources, but isn’t the real problem that it costs money to run for office, to lobby the Congress or pitch an idea to the people for their popular support?

    If all you needed to run for office was volunteers going door to door, and a fair and open-minded media to cover the campaign, big money wouldn’t make any difference. Unfortunately, no one wins high office without television. Using the Internet to run for office isn’t free, but it’s cheap, and may someday replace the tube as “the” campaign platform of our time. Until then, it’s television that’s so essential to victory, and so costly as to give the advantage to the wealthiest candidates and supporters.

    Suppose it was against the law to sell air time to candidates for public office. The networks can and should give that time away on some reasonable basis. They just couldn’t charge for it. Suddenly, the playing field is a whole lot more even.


    • amateurpol said

      First thanks for your comment.

      To take your notion one step further, television stations (at least the ‘over the air’ kind) hold their license to use the public airways as a public trust. We could easily legislate anything from no political ads to requiring free ad time. And constitutionally, we could probably enact limits on cable/satellite stations as well.

      But can it happen as a practical matter? Aren’t we and haven’t we always been a wealthocracy? In the early years, only landowners could vote. And only the wealthy could afford to hold office. In local government, thats still generally true as the pay is euphemistically “part time”. No, on this issue I’m somewhat of a fatalist. We have been, are and likely always will be a a government of the powerful by the powerful for the powerful and it shall not perish from this earth anytime soon. And Justice Kennedy together with the ‘fearsome foursome’ of the right will etch that in stone for the foreseeable future when they decide this case.

    • amateurpol said

      Been a while since I checked in on this site and just wondered how you responded to Justice Roberts’s views on corporate contributions? Can you spell “wealthocracy”?

  2. wf said

    You sound just a tad pessimistic.

    Last time I checked, there is still something called the “popular vote.” I’m no pollster, but my sense is that the American people would wholeheartedly support legislation which greatly extended media access for lower budget candidates and causes. It’s self-empowering legislation whose only opponents, by virtue of their extraordinary resources, would be making the point of why the legislation was so necessary.

    In any case, hasn’t the precedent already been set? Aren’t we only talking about (significant) extensions to laws already on the books?

    As for the Supreme Court, not everything that might make common sense to you and me is supported by the Constitution or the Court’s interpretation of it. What can you do, except turn back to the people for a little old-fashioned grassroots movement to get the President’s and Congress’ attention?

    Under the general heading of “Nut Ball Proposals,” you might want to read “Congressional Dreaming: Doing Away With The Senate And Other Radical Changes We Need To Make Congress Work,” posted 9/1. (As it turns out, I’m one of those people who wonders if a 220+ year old document, however well meaning and brilliantly conceived, can be relevant for an indefinite future. Times change, an observation with which I’m pretty sure our Founding Fathers would agree.)


    • amateurpol said

      Funny you should say that. Ben Franklin commented during the constitutional convention that the framers would be foolish to expect any structure that might be agreed upon in Philadelphia to last more than 150 years. While he was wrong from a certain perspective, the underlying concept was correct.

      The framers operated in the context of a government run by white landowners, where all workers couldn’t vote, and life was orders of magnitude simpler than even in the 20th century, let alone today. There were no big corporations, the population was a tiny fraction of todays. There was no “religious right”. And racism was an accepted perspective. The issues of the day related to matters like state debts to the national government which arose in fighting the Revolutionary War, and whether Pennsylvania’s exports could be taxed by Maryland or Delaware en route to England. Why would anyone believe that a document written to address those relatively simple issues can be used as authority for todays far more complex issues.

      But the politics of re-writing the constitution today are scary beyond belief. God knows what we would come up with that wouldn’t be even more divisive than arguing about how to interpret a 220 year old document?


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