Home > Uncategorized > Things Fall Apart: Guest post on further developments in the Dangerous Corporate "Free Speech" Balderdash

Things Fall Apart: Guest post on further developments in the Dangerous Corporate "Free Speech" Balderdash

I have commented extensively on the decision last year by the Scalia majority in the Supreme Court’s decision in Citizens United.

An important point is that it is perfectly clear that (1) the Founders hated corporations and were seeking to protect inviduals against government in the First Amendment, and that (2) in the Fourteenth Amendment the Congress and states were trying to secure the liberty of freed slaves and non-citizens (like the many Chinese at work on railroads) against excesses by states. But the most important point is that corporations are not real flesh-and-blood people, but the creations of states, which thus have every right to condition the grant of corporate status (and the special benefits included in such grant, such as legal entity status, limited liaibility of shareholders, unlimited purposes, unlimited life, etc.) on a curtailed ability to influence political decision-making. Limits on “corporate speech”do not, of course, pose any limits on the rights of speech of the individuals who own, manageor work within particular corporations).  Related points are that the incentives faced by decision-makers within corporations are different from those faced by individuals within communities, that corporations have special advantages over citizens in seeking to influence government, and that corporations are becoming increasing entangled in rent-seeking behaviors.

These are fundamental points that far too many are overlooking.

I recently stumbeld across a June 23 article at The Atlantic by Garrett Epps, a former reporter for The Washington Post, who is a novelist and legal scholar, and teaches courses in constitutional law and creative writing for law students at the University of Baltimore. Epps was writing in response to further, recent judicial developments in the wake of Citizens United.

While I don’t agree wholly with Epps and find his analysis incomplete, I thought it worth bringing his article to your attention. Epps kindly agreed to allow me to cross-post his article here.

I note that the bolding is mine:

Constitutional Myth: Corporations Have the Same Free-Speech Rights as Individuals

By Garrett Epps

The problem isn’t “corporate personhood”; it’s simple-minded interpretation that refuses to take note of the real function of the First Amendment

On June 16, Judge James C. Cacheris of the Eastern District of Virginia ordered charges dismissed against two criminal defendants charged with violating federal election laws [Actually. he made this decision in May, and just re-affirmed it.] The defendants allegedly allowed corporate employees to attend Hillary Clinton campaign fundraisers, then reimbursed them for the cost out of funds of their corporation, Galen Capital Group. If the allegations (as yet unproved) are true, this was a direct violation of 2 U.S.C. 441(b), which forbids corporations from contributing to federal election campaigns.

Judge Cacheris contemptuously brushed the statute aside as a restriction on the corporation’s free speech rights. The Supreme Court has never held the statute unconstitutional, but the judge did it for them, relying on their latest campaign finance ruling, Citizens United v. Federal Election Commission.

The Court in Citizens United went out of its way to say it was not invalidating contribution limits, but Judge Cacheris explained they couldn’t be serious:

Taken seriously, Citizens United requires that corporations and individuals be afforded equal rights to political speech, unqualified. . . . Thus, following Citizens United, individuals and corporations must have equal rights to engage in both independent expenditures and direct contributions. They must have the same rights to both the “apple” and the “orange.”

Judge Cacheris’s opinion is a prime example of right-wing judicial aggressiveness and simple-minded constitutional mythology. Like levees on the Mississippi, the extremely modest restrictions on corporate domination of American politics are being deliberately breached; the result, as in New Orleans in 2005, is a man-made disaster, a flood of corporate money that is distorting, and indeed threatens to destroy, American democracy.
The First Amendment exists, in the new logic, only to protect the right of those with money to drown out those without
Almost every literate American knows that in 2009 [sic; actually, it was 2010], the United States Supreme Court held that corporations must be given the same free-speech rights under the Constitution as ordinary Americans to fund advertising advocating the election or defeat of political candidates. (The Court did explain that its opinion applied only to independent expenditures, not to direct contributions, but Judge Cacheris apparently saw them winking at him when they delivered that part of the opinion.) The Court gutted the McCain-Feingold Act, the first significant (even if timid) attempt at campaign finance reform since the laws passed in the wake of the Watergate scandals. What that means, of course, is that corporations, with their enormous financial resources, could flood the airwaves with ads from deceptively titled “issue groups” with names like “Americans for Prosperity” and “American Future Funds.” This is precisely what happened in the 2010 campaign, when these anonymous funds swamped Democratic and progressive candidates with semi-anonymous attack ads in the days before the election. Perhaps coincidentally, those elections produced a radical shift to the right in the membership of both the House and the Senate.

To hear the right discuss it, though, anyone who questions Citizens United is spitting on James Madison’s grave. “Any proponent of free speech should applaud this decision. Citizens United is and will be a First Amendment triumph of enduring significance,” Sen. Mitch McConnell (R-KY), who is to campaign finance laws what Darth Vader was to Alderaan, crowed on the Senate floor after the decision. Rep. Mike Pence (R-IN) also explained that “the Court has taken important steps toward restoring to the American people their First Amendment rights. This decision is a victory on behalf of those who cherish the fundamental freedoms protected by the First Amendment.” Sen. John Cornyn (R-TX) told the New York Times that “I can’t think of a more fundamental First Amendment issue.” He also noted that, by a bizarre coincidence, the decision would “open up resources that have not previously been available” to the Republicans.

There’s another way to look at it. In his dissent in Citizens United, Justice John Paul Stevens–a moderate-conservative Republican–spoke for many citizens when he said, “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

The problem is not that corporations are “persons” under the law. That’s been the law for more than a century. And the problem is not the mere idea that corporate “persons” have free speech rights. Of course they do; otherwise the government could prohibit the New York Times Co. or MSNBC from engaging in news coverage. [wrong; the First Amendment also specifically mentions “the press”]

The problem is the kind of simple-minded interpretation of the Constitution I have discussed elsewhere. The current Court in Citizens United claimed to be choosing between a system in which corporations would have no free-speech rights and one in which corporate “persons” must have precisely the same free-speech rights as natural persons do. There surely is a middle position. In fact, our laws treat many kinds of “persons” differently for various purposes–citizens differently from non-citizens, minors differently from adults, members of professions differently from non-members. Each group’s rights–even important rights like free speech–are treated differently for some purposes. High-school students do not have the right to criticize their school administrations; college students do. Minors do not have the right to purchase sexually explicit entertainment; adults do. Non-citizens cannot contribute to federal political campaigns; citizens can.

That a corporation is a “person” does not mean that its participation in politics has to be completely free of regulation. Any sane system of laws would take into account the facts that corporations control vastly more money than individuals; that they never “die,” and thus can influence events indefinitely; and that, by law, they must (and do) concern themselves with one thing and one thing only–making profits for their shareholders.

Over the past generation, the conservative majorities on the Court have systematically destroyed any idea that the First Amendment relates to democratic self-government, or civic equality. Earlier this year, when the Court considered Arizona’s Clean Elections Act, Chief Justice Roberts asked the lawyer for Arizona this remarkable question:

I checked the Citizens’ Clean Elections Commission website this morning, and it says that this act was passed to, quote, “level the playing field” when it comes to running for office. Why isn’t that clear evidence that it’s unconstitutional?
The First Amendment exists, in the new logic, only to protect the right of those with money to drown out those without. This is such an obtuse reading of the Constitution that anyone can be forgiven for thinking it was a self-interested, overtly partisan decision by a five-Justice majority of conservative Republican appointees deeply disappointed that their party had been roundly defeated in the 2006 and 2008 decisions.

Having said that, Barack Obama and the Democratic Party bear their share of the blame for this sorry mess. By wrecking the public-finance system in the presidential election of 2008, the Democrats did a lot to convince reasonable people that their concern about money in politics was as self-serving as the Republicans’ concern for corporate “liberty.”

The proper vision of corporate “personhood” would consider the meaning of the First Amendment not as a simple on-off switch but as a provision that protects a key ingredient in democratic self-government–speech to and about politics by ordinary people.

As Judge Cacheris’s decision demonstrates, the rot has progressed almost to the terminal stage. But remember the worlds of Miracle Max in The Princess Bride: “It just so happens that your friend here is only mostly dead. There’s a big difference between mostly dead and all dead.”

Equality and self-government, as ideas in the law, are mostly dead–but not all dead. The battle is not over. Sustained popular pressure may force right-wing courts and activist groups to back off from their continuing demands for special political rights for corporations and the rich.

[More on the decision by Judge Cacheris here: http://www.scotusblog.com/2011/05/expanding-citizens-united/ and http://volokh.com/2011/05/27/unconstitutional-to-ban-corporate-contributions-to-candidates-even-when-independent-expenditures-are-allowed/  and http://electionlawblog.org/?p=18848.]
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  1. October 2nd, 2013 at 04:24 | #1

    Epps makes some good points but I believe he’s in a wrongheaded majority on the meaning of the First Amendment. The assumption is that the affirmation of artificial personhood in Dartmouth College v. Woodward (1819) is the precedent that lays the foundation for the constitutional protection of corporate speech. But that wasn’t even a concept until after Santa Clara in 1886. And even then, it took until Buckley in 1977 and First National Bank of Boston in 1978 for it to be codified in case law.

    Also, press freedom is mostly about preventing the use of “seditious libel” to silence political speech. In British Common Law, truth was not a defense against being convicted of libel against the king or parliament. The American Founders were having none of that and made sure by adding press. But it’s not a free ticket to print whatever one wants just because it’s called news. The early history of the Bill of Rights has been lost on far too many scholars.

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