New Powers of Speech for Corporations and Unions!
Last week, I described some of the privileges the corporate form had to offer individuals thinking about forming a business. One week and a Supreme Court decision later, we can add another—the right to free speech. In Citizen’s United vs. Federal Election Commission, the Supreme Court decided 5-4 the First Amendment includes corporations and unions as eligible for political speech protection during campaigns. In its decision, the Court struck down as unconstitutional part of the McCain-Feingold Campaign Finance Law.
The Court’s opinion was 183 pages, highlighting the complexity and fervent disagreement within the Court. The case concerned Citizen’s United, a nonprofit corporation funded by individuals and other for-profit corporations, that created Hillary: The Movie, a motion picture about Hillary Clinton, created for the 2008 Presidential primary season. Everyone agreed the film portrayed Clinton in a negative light. The issue in the case was not the content of the movie, but the legal identity of the entity creating it. It is not what was said, but who said it.
Political speech is the most important kind of speech our First Amendment protects. Our democracy is reliant upon free political speech; opposition to or allegiance with a particular candidate for public office is necessary for a democracy. Careful distinction needs to be made between giving money directly to candidates as opposed to paying for commercial airtime, pamphlets, books, internet postings, and lobbyists. Government suppression of political speech was strictly scrutinized by the Court, which required the Government to prove the restriction on speech “furthers a compelling interest and is narrowly tailored to achieve that interest.” The Court found the Government did not meet its legal burden.
Prior to the decision, funds of a corporation or union could not be spent for the election or defeat of a candidate within 30 or 60 days of a primary or election, respectively. The reasoning for allowing corporations or unions not to make expenditures was based on three rationales: antidistortion, anticorruption, and shareholder protection.
The antidistortion rationale was based on the premise corporations and unions could have too much influence in the election process, so they should be excluded from speaking completely. Second, the anticorruption rationale was based on the premise corporations/unions funds could bring corruption to elections. Third, the shareholder protection rationale was argued on the basis shareholders or union members were going to be forced into giving up some of their right to profit when money was spent on speech they didn’t agree with. The Court accepted none of these arguments as overriding the Constitutional right to free political speech.
All sorts of pundits are making claims of how this will affect elections. Is it better to have fewer political commercials in exchange for the total restriction of corporate political speech? Look at the potential positive of allowing corporate and union political speech. Corporations and unions are often experts in the issues deciding elections. More speech allows more information for the public to digest when an election approaches. Yes, some of the speech will be infuriating, annoying, stupid, and even deceitful, but it will be tied to the corporation’s or union’s name, as the Court upheld with regard to disclosure and disclaimer requirements. Therefore, anything placed into the public domain will be at the corporation’s or union’s own peril. Common sense will likely be the greatest restriction on their speech, where it properly should be and not with the government.
