Now that finals are over, I have been catching up on my reading. While reading the latest issue of Newsweek, George Will’s article on the first amendment and corporations caught my attention.
Will quotes William R. Maurer of the Institute for Justice in regards to the Citizens United ruling: “Corporations and unions are not individuals, but they are made up of individuals who have banded together for common purposes … To hold that First Amendment rights dissipate the minute one person begins to act in concert with another would neuter the Bill of Rights.”
The ruling in question overturned a law (part of the McCain-Feingold act) that banned corporations and unions from buying political ads. The law did not change the ban on direct contributions to candidates by corporations, but it does allow them to purchase ads that are independent of campaigns conducted by candidates. So, for example, a corporation could not directly fund Candidate John Doe, but could purchase ads attacking his opponent Candidate John Smith.
While Maurer’s point has a certain appeal, I believe that he is mistaken.
The gist of his argument seems to be that denying a collective the right to purchase ads as a collective would violate the 1st Amendment. The 1st Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
While a strict constructionist might simply note that there is no reference to the freedom of a collective to purchase political advertisements, I will not push that point. I will, instead, take a different approach.
One key concern is the matter of whose right would be violated by the limit on corporate and union spending. On the face of it, individuals would face no loss of rights. After all, the individual’s freedom of speech would be unharmed by this sort of ban. Of course, the obvious reply is that the individual’s right to freedom of speech would by limited because s/he could not join with others to create a corporation or union that would thus be able to spend money to purchase political advertisements.
However, there is something questionable about this. Consider Maurer’s argument with a bit of a modification:
Corporations and unions are not individuals, but they are made up of individuals who have banded together for common purposes … To hold that voting rights dissipate the minute one person begins to act in concert with another would neuter the right to vote.
Now, it would seem that if the original argument holds, then this line of reasoning about voting should hold as well. That is, corporations and unions should also have the right to vote. While this would no doubt be favored by some corporate and union folks, this seems rather absurd.
An obvious reply is, of course, that voting rights and the freedom of speech differ in ways that prevent this parity of reasoning tactic. That does have a certain plausibility but does require spelling out how one individual right can be legitimately “upgraded” to a collective right while another right applies on to the individual and not the collective.
Another approach that can be taken is to grant (for the sake of the argument) that there is a collective right of free speech and then consider under what conditions that free speech can be justly limited. For example, the GOP recently pressured the Smithsonian to remove a video depicting a crucifix covered in ants. Presumably, the GOP folks involved in this accept that free speech has its limits. In this case, their view seems to be that publicly funded art institutions should be subject to review by the GOP in regards to what should and should not be expressed. As another example, harmful expression (such as the classic case of yelling “fire” in a crowded theater”) can also be justly limited.
In the case of corporate and union spending, it could thus be argued that allowing such spending will create significant harms to the democratic process. For example, it can be argued that it will give corporations and unions disproportional influence in elections. After all, a multi-billion dollar corporation will have considerably more financial resources than a comparable number of individuals acting on their own. This seems to be a reasonable concern and does seem to provide a possible justification for limiting collective spending in the political arena.