I think Glenn Greenwald does a good job here of working through some of the very real issues surrounding Thursday’s Supreme Court decision striking down the McCain-Feingold campaign finance law and allowing corporations to directly fund political candidates. It’s really not an easy call: corporate money is obviously a blight on the political system and certainly a matter of considerable public interest, but restricting free speech rights, even of corporations, should give us considerable pause too. This isn’t an easy question.
I’m probably closer to Glenn’s pro-First Amendment position today than I was in 2002, when McCain-Feingold first passed, but at the same time I think he glosses over some of the issues in Citizen United a little too lightly. For example, there’s respect for precedent:
It’s absolutely true that the Citizens United majority cavalierly tossed aside decades of judicial opinions upholding the constitutionality of campaign finance restrictions. But what does that prove? Several of the liberals’ most cherished Supreme Court decisions did the same (Brown v. Bd. of Education rejected Plessy v. Ferguson; Lawrence v. Texas overruled Bowers v. Hardwick, etc.). Beyond that, the central principle which critics of this ruling find most offensive — that corporations possess “personhood” and are thus entitled to Constitutional (and First Amendment) rights — has also been affirmed by decades of Supreme Court jurisprudence; tossing that principle aside would require deviating from stare decisis every bit as much as the majority did here. If a settled proposition of law is sufficiently repugnant to the Constitution, then the Court is not only permitted, but required, to uproot it.
But there’s a difference here: in the case of, say, Brown vs. Board of Education, the pernicious effects of Plessy over the previous half century were plain. In Citizens United, we had an equally plain view of the effects of previous restrictions on corporate campaign funding, and those effects were…..negligible. Corporations quite clearly haven’t been shut out from the political system and quite clearly haven’t suffered from being unable to directly support candidates for federal office. It’s one thing to correct an injustice that’s become ever more manifest over the years, but quite another to overturn a long-held precedent that pretty obviously hasn’t led us down a slippery slope to increased injustice.
There’s also the nature of corporations vs. individuals. Corporations do have First Amendment rights, but to call corporations mere “organized groups of people,” as Glenn does, seriously obscures some genuine distinctions. Modern corporations are far more than that, and long precedent recognizes this by allowing them fewer speech rights than individuals. Fairly broad restrictions on advertising, for example, are both constitutional and widely accepted. Ditto for laws that prohibit corporate officers from discussing earnings forecasts during “quiet periods.” So it’s perfectly defensible to suggest that corporations might also have more restricted rights when it comes to campaign speech.
On the other hand, there’s no question that political speech is at the core of the First Amendment. Restricting commercial speech is one thing, but restricting political speech, no matter who’s doing it, ought to raise much louder alarm bells. On a practical level, there’s also the question of whether campaign finance laws even work. Did McCain-Feingold reduce corporate influence on the political process? It’s hard to argue that it did. As Glenn puts it: “Corporations find endless ways to circumvent current restrictions — their armies of PACs, lobbyists, media control, and revolving-door rewards flood Washington and currently ensure their stranglehold — and while this decision will make things marginally worse, I can’t imagine how it could worsen fundamentally. All of the hand-wringing sounds to me like someone expressing serious worry that a new law in North Korea will make the country more tyrannical.”
I’m just enough of a First Amendment fundamentalist to believe that there are plausible arguments for allowing corporations to make political contributions; just enough of a realist to think that it might not make as much difference as a lot of people think; and just enough of a cynic to think that corporations might not be as eager to spend huge pots of political money in plain view of their customers as you might suppose. On the other hand, I’m not credulous enough to think that modern multinational corporations are mere voluntary assemblies of concerned citizens who deserve to be treated the same way as the local PTA. The world is what it is, and in a practical sense corporations have such enormous power that it would be foolhardy in the extreme to think that we can just blindly provide them with the same rights as individuals and then let the chips fall where they may.
In the end, I guess I think the court missed the obvious — and right — decision: recognizing that while nonprofit corporations created for the purpose of political advocacy can be fairly described as “organized groups of people” and treated as such, that doesn’t require us to be willfully oblivious to the fact that big public companies are far more than that and can be treated differently. Exxon is not the Audubon Society and Google is not the NRA. There’s no reason we have to pretend otherwise.