Thursday, February 4, 2010

Corporations are not people and money is not speech

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By Supreet Minhas

While speech can be interpreted loosely as any form of expression, such an open, ambiguous definition would create a myriad of problems with all kinds of laws.

In Citizens United v. Federal Election Commission, the U.S. Supreme Court overturned century-old restrictions on corporate spending in elections under the guise of protecting First Amendment free speech rights. Justice Anthony M. Kennedy, writing for the majority, said, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” This argument of the majority decision rests on the notions that corporations are covered by the same free speech protections as individual citizens and that campaign donations or financing are the same as speech.

Corporations, however, are inherently not the same as individuals and thus cannot have the same protections as individuals. There are a slew of laws that protect corporations and their interests in the arena for which they are by definition formed—namely the marketplace. The laws that govern corporations and the rights enjoyed by them are distinct from the laws and rights of individuals. A corporation, for example, can enter into contracts like an individual, but unlike an individual, a corporation’s members can be protected by limited liability so their personal assets are not at stake.

If a corporation, then, is a distinct legal entity governed by different laws than an individual is, corporations are not protected under the First Amendment in the same way that individuals are protected. Corporations, especially in their most powerful and wealthy incarnations, are exponentially more influential than most individuals in America. The restrictions on corporate spending in elections that were overturned by the U.S. Supreme Court were meant to redress this power balance between average individuals and unduly influential businesses. Corporations already have a plethora of ways to influence politics, from political action committees to lobbyists on Capitol Hill. The framers of the Bill of Rights wanted to protect the voices of the trampled, not amplify the voices of the elite.

The other part of the Supreme Court’s premise for its decision is that the First Amendment free speech clause applies to campaign funding. While speech can be interpreted loosely as any form of expression, such an open, ambiguous definition would create a myriad of problems with all kinds of laws. An architect has a vision of a building: it is his art, his self expression, yet he cannot ignore local zoning laws that, for instance, restrict the height of his building. Should he sue the state for violation of his free speech, his right to expression? Equating money with speech also opens the door to sundry ludicrous claims by, for instance, an employer who objects to minimum wage laws since he’d like to express that his employees are only worth paying $3 an hour. There have to be restrictions on what constitutes speech to prevent a bastardization of the term and an overly liberal interpretation of the First Amendment.

A corporation already has the power to issue a statement in favor of a candidate or policy through its political action committees, and individual members of a business are welcome to contribute money as well. However, allowing a corporation to use its vast profits to directly finance the election or to remove a candidate compromises the democratic notion of a free and fair election. There are unseemly ties even now between politicians and various industries, but this new ruling would make such connections more robust and give them a veneer of legitimacy. A politician financed by a business would become completely beholden to its political agenda and not to the voters.

It’s not only the independence of politicians that’s at stake, but also the independence of our judges, who are at the very least expected to be impartial. Many states still use elections to appoint judges, which leaves them vulnerable to the influence of political spending. In a recent speech at a law school conference, former Supreme Court Justice Sandra Day O’Connor worried about the impact of corporate campaign funding in judicial elections, saying that “judicial campaigning makes last week’s decision in Citizens United an increasing problem for maintaining an independent judiciary.”

Two cornerstones of our democracy—free elections and an independent judiciary—are threatened by the Supreme Court’s activist and meddling decision. The case could have been decided much more narrowly in favor of Citizens United, but instead, the majority of the justices decided to expand the case to champion the rights of big money over the interest of the American people. Senators Dick Durbin (D-IL) and Arlen Specter (D-PA) introduced the Fair Elections Now Act last March. It would prohibit contributions from political action committees and would match individual donations, limited to $100, on a 4:1 basis so that fundraising focuses on the people. Such a system has been in place in New York City since the 1988 Campaign Finance Act. The rest of the country is long overdue to follow. Never before has the fight for public financing been more necessary.

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