Is Money Free Speech? (Part II)

In Davis v. Federal Election Commission (2008) and Arizona Free Enterprise PAC v. Bennett (2011) the Court held that the governmental compelling interest to “level electoral opportunities for candidates of different personal wealth” was not a reason to limit free speech. All candidates have different “strengths”. Will the government regulate other strengths such as name recognition of a celebrity running against a no-name commoner?

In Citizens United v. Federal Election Commission (2010), the Court overruled McConnell where it abridged corporate free speech and Austin v. Michigan Chamber of Commerce (1990) in its entirety. In Austin, the Court held that corporate free speech restrictions were constitutional because “corporate wealth can unfairly influence elections.” However, media corporations have the same power but they are exempt from Austin ruling. In Citizens United the Court held that laws which burden political speech are “subject to strict scrutiny.” The First Amendment was created to protect “political speech” so citizens and groups could speak freely without the threat of being restrained. The Court in Citizens United applies the standards held in Buckley and Bellotti. In First National Bank of Boston v. Bellotti (1978) the Court held that corporations have the First Amendment right to make contributions to ballot initiatives. Bellotti said political speech is “indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.” Justice Kennedy asserts if Austin was correctly decided then “the Government could prohibit a corporation from expressing political views in media beyond those presented here, such as by printing books.” Kennedy also says that Austin is flawed because the “majority undertook to distinguish wealthy individuals from corporations” since both can have “unfair input” on elections. Also “All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech.” Austin also brings forth another government “compelling interest”: the anti-distortion rationale. Kennedy says that the “anti-distortion rationale” is a “dangerous and unacceptable consequence because Congress could ban political speech of media corporations.” A corporation that owns a media company would have preferential treatment over other companies that the First Amendment does not distinguish between. Austin is also discriminatory because it “prevents the distorting effects of immense aggregations of wealth” and it is “not aimed at amassed wealth.” Another compelling government interest brought up in the Citizens United case was to “protect dissenting shareholders from being compelled to fund corporate political speech.” Corporations, like the U.S. political system are democratic in nature, and a minority of dissenters lose out to the majority all the time. Besides, shareholders can sell if they do not like the corporate message or feel they wasting profits. In Bennett, the dissent says that “public funded” elections are acceptable even though 100% of the public will not like the candidates (this obviously conflicts with their “protecting dissenting shareholders” compelling interest). Another compelling interest brought forth by the government is the fear that “foreign individuals” working for U.S. corporations could “influence our Nation’s political process.” This argument also does not hold muster since a vast number of American citizens have multiple citizenships and or even live overseas but their right of free speech is not regulated even though they may have opinions of foreign influence. Also, a large majority of Americans are first generation immigrants who still have loyalty to their mother nation, but they are not restricted in their freedom of speech.

The dissenters in Citizens United try an “originalist” argument claiming that the Founders never intended the First Amendment to cover corporations. They contend that the Founders disliked corporations. This is true, Thomas Jefferson, like many Republican founders favored agriculture, but would they dislike the many agriculture companies that exist today? This did not stop the government from creating a National Bank and other companies over the centuries that would aid in carrying out its enumerated powers for the People of the United States: Amtrak, Conrail, Tennessee Valley Authority, and a number of financial, insurance, and retirement companies to name a few. Why is acceptable for the government to own corporations free from speech regulation while private sector companies are held to a higher standard of regulation and free speech rules? It was shown earlier that the Court has found on numerous occasions that corporations have constitutional rights. And let’s not forget what the First Amendment says: “Congress shall make no law abridging the freedom of speech.” The Amendment makes no distinction between individual, groups, organizations, unions, or corporations. They only way the dissenters have an argument is if the First Amendment text does not say what it means or mean what it says. The dissenters even go as far to hint that “newspapers” and the media did not have First Amendment rights in the founding era.

The dissenters in Citizens United argue that Federal Commission regulations do not account for a ban on corporation free speech because they can form PAC’s. However, PAC’s are highly regulated and are not ideal for midsize or smaller companies. I will not place the full BCRA rules for corporations in this writing (they can’t reach more than 50,000 people, campaign finance money cannot come from the company treasury, they can’t broadcast messages, and there is more) but if you read the entire list of restrictions it is essentially a ban on corporate speech.

Corporations are people and money is free speech and this is defended by over 200 years of precedent. People and corporations use money every day for free speech: advertisements, marketing, gifts, travel, pamphlets, books, blogs and so forth and so on. Where would people be without corporations? Corporations may have been a bit foreign to our founders, but by the 19th century corporations have been deep rooted in American history and tradition. Corporations coupled with people have been successful in fighting evil around the world. Without corporations, we could be speaking German. Thus, corporations are just as important to our freedom as are people. This should not be forgotten.