Friday, January 22, 2010

Free Speech Lives

The days are few and far between where I am made genuinely happy by something coming out of Washington, and this has been truer the last few years than most. But yesterday's decision in Citizens United v. FEC was positively electrifying. The language is sweeping:

"The First Amendment’s protections do not depend on the speaker’s financial ability to engage in public discussion.”

“When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”

“Our Nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights.”

“The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.”


Yes indeed. The arguments against the decision fall into several categories, none of which withstand much scrutiny:

Unlimited corporate speech leads to corruption. Fearing a torrent of corporate cash to achieve their election defeat, Congressman will knuckle under to corporate demands. Alternatively, Congressmen can reap the benefits of corporate money spent in their favor. Here, Congressmen are basically saying "stop me before I take a bribe again." There is no corruption problem if Congressmen are not corrupt, and the solution to that problem is to punish corruption or, much more saliently, to remove the opportunities for corruption by ending Congress's capacity to take loot from one party and give it to another. The implied contempt for John Q. Public -- that public opinion can be rolled by the expenditure of enough cash -- is also striking.

Corporations will drown everyone else out. Corporations have money, and no other voices will be heard. Senator Menendez of New Jersey opined that "We must look at legislative ways to make sure the ledger is not tipped so far for corporate interests that citizens' voices are drowned out." Alas, the First Amendment oes not read "Congress will make sure everybody gets a turn, because otherwise it's no fair." Instead, it reads, movingly in its simplicity, "Congress shall make no law abridging freedom of speech." So Senator Menendez's "legislative ways" will have to take account of that.

Indeed, the speech that is backed by the most resources is not the speech of large corporations, but the speech of Congressmen themselves. The media crave interviews with politicians, who also use public resources to communicate with constituents. Every blowhard senator or representative who rushes to a microphone to condemn this decision needs to realize that what it is about is the power of people argue for their defeat, and that campaign-finance law is one big incumbency-protection racket.

Corporations ain't people. No, but the people who compose them are. A group of citizens who unite for a particular purpose and call themselves "Citizens against Corporate Slavery” certainly has the right to issue a statement and to give money to politicians in the name of that group. So does a group of citizens who unite for a particular purpose and call themselves "Google." The First Amendment makes no distinction among for-profit associations and associations formed for other purposes. Period. It is true that some shareholders or employees may object to a statement issued in the name of the group of citizens who unite to call themselves “Google,” but that is true of any group. In a free society, they may exit the group, issue a dissenting statement, or just swallow hard and ignore it. That is no rationale for shutting down the power of the group to speak collectively at all.

Corporations are generally not formed to speak, but when citizens choose to associate that way, and to speak on behalf of that association, their First Amendment rights are not affected in any way. The First Amendment has no asterisks.

Special interests will hijack the legislative process. Tell me another one. President Obama actually used this argument after the decision came down, saying the decision has “given a green light to a new stampede of special interest money in our politics." In short, his agenda is the public interest, and opposition to it is the special interests. This is the oldest rhetorical trick in the collectivist playbook. People who think drug companies should fund the health care of third parties are the public interest, but the companies objecting to it (and people who object to it philosophically) are something else.

As a final aside, Googling "corporate power" and "Citizens United” already yields over 10,000 hits. Sen. Schumer in particular has already said, "The bottom line is this: The Supreme Court has just pre-determined the winners of next November's elections. It won't be Republicans, it won't be Democrats, it will be corporate America." As far as I know he is more or less in the mainstream of current progressive thought. And so the corporations-run-the-world trope appears to be firmly ensconced on center stage in progressive thinking.

So overall, a fabulous day. The only disappointment is the realization, given the accelerating politicization of the law, that this decision is only as good as the next Justice's retirement.