Sunday, January 31, 2010

The Courage to be Free

Just over a week ago, the Supreme Court handed down a 5-4 decision that free speech is a good idea. Okay, okay, I'm being somewhat snarky to open with that, but bare with me.

Until recently, corporations were limited in the sort of political ads they could produce and fund. Specifically, “electioneering communications” from corporations was banned in the 30 days before a presidential primary and in the 60 days before the general elections.

I suppose where it comes from is the idea that corporations aren't literally people, without at the same time remembering that Africa, small towns, and the Democratic Party aren't literally people either. Liberals too often talk about “corporate interests” as if these interests are coming from some disembodied evil thing floating about and manipulating the world in accordance with its evil will. Just because you aren't in a religion doesn't make you immune from, uh, functional theism.

“Corporate interests” means the interests of people organized into a group. It does no good to claim the stockholders' interests are different from the bosses. No they aren't. Buying stock is an agreement where the buyer gives the management the right to make choices with the money. If you are a stockholder and you don't like this deal, then sell. No one is stopping you. If the financial loss of selling is too great, then that's another way of saying the agreement reached about the money and power transfer is in your interests too. Laws are not needed to keep you from trampling upon your own interests.

Of course, there's the problem that the stockholders might not know what's going on. But this isn't an argument for corporations not being able to speak out for their interests, it's an argument for transparency. And so the Court ruled 8-1 that Congress has the power to require corporations to disclose their spending. If Congress thinks they have the ability to regulate corporations closely enough to know that they aren't spending on elections, surely they can accomplish the much easier goal of regulating them enough to make sure they are revealing what they are spending. So I wish to hear no more dehumanizing of “corporate interests”, except in contexts where no more than buzzwords, catchphrases, and partisan hackery should be expected anyway.

To further bury the corporations-as-the-new-Satan worldview doesn't require some hypothetical good corporation or some obscure example. The corporation that brought suit will do. This was a non-profit corporation, Citizen United, that made an anti-Hillary video and wanted to show it on TV. This case isn't about whether or not the video was accurate, and so I really don't care what's in it. Here's the set-up: a group of citizens with similar political views organized, raised money, and wanted to pay the money it takes to show a movie on TV. And they couldn't do this. What country is this again?

(As an aside, despite it's imperfections, our justice system is totally bad ass. You can hear about a law, decide the law is wrong, break the law on purpose, admit you broke the law, and still you get to argue “screw you, the law is wrong!” If you have a really good case, you make it to the Supreme Court, and if they agree, you have just taken down the man. That's totally bad ass.)

Corporations are not just things like Microsoft, Google, and Exxon. Corporations are organized groups of citizens. This includes the Christian Coalition, the Cato Institute, the Sierra Club, unions, the Center for Inquiry, the ACLU, Americans United for Separation of Church and State, and any other group of citizens who care enough about how our country is run that they have goals big enough that they can't be accomplished by any one person. And so they organize with the goal of getting out their message, and you can be damned sure the First Amendment lets their messages include electioneering.

Corporations also include MSNBC, FOX, and CNN. Why should they be allow to speak and no one else can? Don't kid yourself – MSNBC and FOX are practically partisan organizations in all but name. Why can they push their views all throughout election season while partisan organizations who are honest about their goals cannot?

Even given the premises, it is not enough to say this ruling gives power to corporations, corporations are bad, so the ruling is bad. Compared to what? Who has the power when corporate speech is silenced?

First the media. Yeah. FSM help us all if they are allowed to rule the country. Second, the power goes to the legally knowledgeable. Justice Kennedy wrote, “Campaign finance regulations now impose 'unique and complex rules' on '71 distinct entities.' … These entities are subject to separate rules for 33 different types of political speech. … The FEC has adopted 568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975.” (Pages 24-25 in the opinion of the Court.) Complex laws that seek to restrict the power of money gives the power to the legally well-connected, which means to lawyers. It gives power to lobbyists who can influence the details of the complex law and hence get around the entire purpose of the restrictions. And of course, it also gives the power to the people with access to mercenary legal minds. Which means the power goes right back to the rich anyway, and on top of that, we're stuck with a complex legal web, violated freedom of speech, and even more scraps on which all the blood sucking lawyers feed.

You can't take away the power of money without replacing it with the power of the sword. The power of money isn't just some curious and accidental side effect of how our country is set up. Resources give you power – if they didn't, they wouldn't be resources. Money is an abstraction of resources, and to seek to dampen the power of money is to seek to alter a fundamental truth about reality. (The way the money is distributed can be changed, but the power that comes with money cannot.)

Not only are the pragmatic arguments against this ruling flawed, this isn't even a case where such a naive pragmatism makes any sense. Free speech is not something that you can suppress in the special cases where it will be damaging. The concept of free speech requires it to apply to even people you disagree with and even to people who you think have bad enough ideas that they have the power to undermine our political system. Even pragmatically speaking, the result of a naively pragmatic approach to free speech is an undermining of the very concept of free speech and a Constitutional democracy.

I find it to be almost a joke that my opinion is such a minority among liberals. The United States found itself in another free speech case a generation ago, a situation where free speech seemed much, much more dangerous than that of corporate free speech. It was a case where even I occasionally pause and wonder if the First Amendment goes too far. In 1959, the conservative majority ruled 5-4 that Communism was one case where ignoring the First Amendment would be a good idea in Barenblatt v. US. The case dealt with a professor who had once been a member of the Communist Party. The liberal minority thought that while his views were repugnant, he had the right to his views and was not obligated to rat out everyone else and subject them to the righteous indignation of patriotism unleashed. Justice Hugh L. Black wrote in his dissent:

“Ultimately all the questions boil down to one - Whether we as a people will try fearfully and futilely to preserve democracy by adopting totalitarian methods, or whether in accordance with out traditions, and our constitution we will have the confidence and courage to be free.”


  1. I've read a lot of articles on this topic and I can honestly say that this is the best one I've read.

  2. I can honestly say I don't understand this material well enough to comment on it myself, but another blog I follow posted on the same topic here:

    and here:

    ...thought you might be interested.

  3. But the interests of the shareholders are different from the bosses. The meltdown of the Lehman Brothers, Bear Stearns, and Merrill Lynch proved that. Back when these companies were organized as partnerships, they would have never taken these kinds of risks because the managers and the owners were the same people. When you separate management from ownership by legislative action, you create conflicts of interest and its proper for the legislature, not the courts, to decide how best to mitigate those conflicts.