Whither campaign spending limits? Speech and money are fungible, and that principle cuts both ways. It costs money to buy a megaphone, print a newspaper, or buy off a congressman. More money means more megaphones and more congressmen on your side. It distorts our representative democracy. At the same time, limits on spending are implicitly (some would say explicitly) limits on speech. It's a bit strange for us to claim that a person can advocate for whatever views he might have while at the same time stripping him of a powerful and lawfully-obtained means of doing so.
This issue has come to the fore again recently with the recent Supreme Court's decision in Citizens United v. Federal Election Commission. (Astute readers may recall that I wrote about the Citizens United case back in September.) Our courts have in the past issued inconsistent rulings with respect to whether corporations enjoy the same free-speech protections as do individuals. The ruling in the Citizens United case sways the balance far into the Yes camp. They may speak -- i.e. spend -- as they wish, as we do. (Thanks to John Gruber for the FreeSpeechForPeople.org link.)
I think this idea is nonsense and that by holding to it we throw away an excellent opportunity to thread that needle I talked about in the first paragraph above. Let me break down what I think would be a better model.
We the People
...should face few or no limits on our political spending, aka political speech. The Constitution grants us extensive free-speech rights, irrespective of the state's interest, limited only when speech turns into violence.
Corporations Are Not People
...and the law has only recognized their rights as pseudo-people selectively. They may currently receive free speech protections, but they do not vote and are they not taxed in the same way as individuals. (Although at least one corporation is running for Congress, albeit in jest.)
A corporation isn't "real." It's an abstraction to to make it easier for people to do business with one another. But it has no natural interests beyond those of their members.
This is not to say that the interests of a corporation reflect those of all of it's members. In fact, a corporation's actions and messages are determined by its executives but funded through the actions of all of its workers. The effect is to amplify the voices of a very few, regardless of the wishes of others.
Moreover, the power relationships and financial motives in a corporate environment encourage people to act against their own beliefs and values. People are far more likely to contribute to a project they don't believe in if they're told to do so by someone above them, if their jobs depend on it, and/or if they're paid to do so.
Therefore, let us purge from our minds any thought that a corporation is entitled to the same speech protections as a person. I favor a strict ban: corporations should not be allowed to spend money on political campaigns -- at all. Our electoral system must not be for sale.
Voluntary Associations Are Different
...from corporations. Corporations are defined and circumscribed by statute. Churches, charities, and clubs, by contrast, come about directly through the will of their members. This distinction means that a restriction on corporate speech/spending need not -- should not -- apply to these other kinds of voluntary associations. "[T]he right of the people peaceably to assemble, and to petition the Government" is established in the first amendment to the Constitution; corporations are not.
This distinction is critical. Without extending the protections due individuals to groups of individuals, you and I could not join together in petitioning the government, I could not hire you to lobby on behalf of our shared interests, and we could not bring our friends together to discuss our values and priorities.
Just to Stir the Pot
...a little bit more, let me bring out one more idea from our country's founding creeds: No taxation without representation! If corporations aren't really real, why do they pay taxes as if they were? The revenue of a corporation will eventually become the revenue of individuals. Therefore, let's further support in law the concept of unreal corporations by eliminating corporate income and payroll taxes. We're all paying those taxes indirectly anyway, so let's make those payments directly. We'll simplify our tax regime and make it more transparent along the way.
Our goal should be the elimination of barriers that prevent government from representing and responding to the will of its citizens. To that end, we should strengthen the protections granted to those citizens, remove distorting and distracting influences, ... and perhaps offer some inducement to hurry the money men out the door.
Boy, that's some pot-stirring there! :)
ReplyDeleteSupposing, for a second, that non-taxation and non-personhood go together, how do you propose churches and charities should be granted entity rights to free political speech?
Even if taxed, why should churches or charities or clubs be allowed to spend on politics if corporations are not? They are not people any more than the companies are.
Furthermore, preventing them from spending money on politics would NOT (counter to your claim) prevent you and me from "peaceably [assembling]", nor from "[petitioning] the government".
Even if we mangle that quote to actually say we have a right "peaceably to assemble IN ORDER to petition the government", we'd still be welcome to do so, just so long as we didn't elect a representative officer with purse powers over our club's pooled cash.
I think you're making what is actually the main mistake in this type of discussion by failing to distinguish between the actions of groups and the actions of members of groups. If everyone who works at Google donates to Mitt Romney, that's ok. If Google ITSELF donates to Mitt Romney, or acts to coerce its members to donate (which would be an infringement of THEIR rights, and thus requires no new legal mechanisms) that's not. Substitute "the Catholic Church" or any other group for "Google", and the same goes.
The fact is meta-individual organizations DO behave as entities. If you think a corporation (even a private one) just does what its CEO (or someone else) wants it to, or that the Catholic Church just does what the Pope wants it to, then you're forgetting about internal politics, contractual obligations, etc. These entities move according to a complex inner logic which is often more simply described in terms of the entity than in terms of its members. They just don't always behave as very NICE, wise, or forethoughtful entities, and there is literally no legitimate reason (including this corporate-personhood "precedent", if you read up on it) to accord them a right to do whatever they want despite their flaws.
I think that precisely when the best description shifts from gaggle-of-individuals to meta-entity, the shutters should come down on the accordance of human constitutional rights, unless or until we decide that those entities are good neighbors, and not (for example) obligate sociopaths. I'll grant that churches are not the same kind of entities as corporations, but nevertheless: to the exact extent that they are not the sum of their parts, I don't feel like extending them equal-terms citizenship.
It may be that making some distinctions about (eg) "when is a club pooling its money, versus just coming to a consensus", or "what about sociopaths that ARE people", etc... but EVEN (IF) SO, the normative "should" question remains tractable, and I don't buy your argument that any meta-entity SHOULD be seconded any rights just because they were accorded to people in the constitution.
And, if (!) that's not long enough:
ReplyDeleteI don't even agree with you that "Speech and money are fungible, and that principle cuts both ways." Really? Try convincing the next homeless guy who asks you for money that he aught to take speech instead. Most beggars won't even take FOOD instead of money.
Why, from an enlightened, realistic perspective, should a right to /free speech/ automatically entail a right to hand out money?
I think this whole subject is as ridiculous as Newt Gingrich suddenly turning around and saying "Don't cut Medicare. The reform bills passed by the House and Senate cut Medicare by approximately $500 billion. This is wrong."
What times we live in.
Adam,
ReplyDeleteWow, so I'm as ridiculous as Newt Gingrich. Got to say that stings a bit.
Clearly, money and speech are not fungible in all directions. You can't buy your groceries with speech. But restricting spending very quickly restricts speech. Suppose I tell you that you can say anything you want verbally, but you're not allowed to pay to put your words in the newspaper or on television. What about recording your words on a device you paid money for, or transmitting them over a network you have to pay to access? What about paying someone else to carry your message to your intended recipient for you if you can't travel personally? What if you can't afford to pay the messenger yourself but can find 20 other people who care about the same thing, and you all go in together?
I very nearly posted my article making exactly the argument you make in your first comment: all organizations are created equal, and none should have the right to spend money on political speech. I hate the amount of influence special interest groups, including churches, buy in our elections. But my chief interest is in general rights, not specific restrictions on political spending. A general principle that "no organization has free speech rights" would be very broad indeed and could be applied in many dangerous ways.
Fortunately, corporations have a different basis in law than other types of organizations. Their whole existence is contingent on a state charter, and that charter establishes the scope of their legal activities. That's not the case for the Catholic Church, the NRA, or MoveOn.org. It is therefore possible to establish a much more parsimonious principle with respect to corporations than with respect to other organizations and thereby avoid troubling side effects.
What about Constitutional protections regarding search and seizure? Jury trials? Unreasonable punishment? I think it is far safer to grant organizations Constitutional protections by default, and look for specific carve-outs where known problems and strong legal distinctions exist, than to start from the premise that you and I receive protection but we do not.
Ooopsie, I got a bit carried away there, didn't I... my apologies. I got home late and made the mistake of trying to reply before dinner!
ReplyDeleteNo, obviously neither YOU, nor your post are in any way ridiculous. But I find the twinned notions that corporations should have the rights of people and that a gift of money cannot and should not be distinguished from protected speech to be (perhaps subtly, still) dangerously wrong.
The examples you come up with involving paid couriers or ad space all share a common characteristic: money leaves the "speaker" but doesn't arrive at the politician. That's a clear enough distinction to make, isn't it? Thou shouldst not give money, but thou mayest participate in commerce in pursuit of expressing thy sentiments. To claim no reasonable distinction exists, you would have to map donations onto commercial transactions, in which case the politician who accepts a donation must be selling something for it (influence? votes? a blind eye?), and don't we already think of that as wrong?
Regarding different types of organization, with the possible exception of mere clubs, all those other ones from churches to moveon already have a special legal statuses with specific consequences for how the government does or does not touch their capital inflows. Do we need a type of organization that CAN donate money directly to politicians? Maybe, but certainly it seems like a bad idea to start granting that right by default to organizations that exist for other reasons. To become an LLC a group ought to give up its right to donate money to politicians; to become a tax-exempt religious organization, same deal; to become a narrow PAC which can donate money but doesn't pay taxes on income (say), a group ought to give up its right to make a profit (or something like that); etc.
I see where you're coming from with wanting to do carve-outs rather than carve-ins... but in this case I think that's fundamentally unjustified. There is no legal reason to grant all human rights by default, since the constitution does not grant those rights to groups, only people. And there is no (obvious) first-principles reason to do it either, since (most) groups lack the compassion, skin-in-the-game, etc. that people ante up in exchange for their rights. So, we should take cultural wisdom (including but not limited to the constitution) into account when determining how to regulate organizations... but if we consider requiring trial by jury (of whose peers?) for organizations, then whether people deserve trial by jury aught not to figure in as a key question. After all, wouldn't it be a mistake to assume that sauce for the goose is necessarily sauce for the 501(c)(3)?
(though I've always found 501(c)(3) employee particularly delicious with chestnut stuffing and a port reduction ;)