A good friend and fellow traveler in the liberty movement recently asked my opinion on last year’s U.S. Supreme Court’s Citizens United decision. The ruling still generates controversy, especially when its effects are described as “chilling” - conveying personhood onto corporations and equating money with speech.
The notion that corporations are separate legal entities – i.e. “persons” - is not new; it is a foundational concept in commercial contract law and torts. It is what spares us from having to get each of the stockholders of ATT&T to sign our cell phone service contract among other useful considerations. And when President Obama is preparing to spend over $1 billion in his re-election bid, money is speech, whether we like it or not. Color me “not”.
While all rights belong to individuals, the individual right to free speech can be amplified via the companion right of association. A corporation is a form of association; and while we think immediately of huge multinationals, most corporations are small and many are non-profits. If we think of McCain/Feingold as muzzling the family farm or a local co-op, the Court’s decision to strike it down takes on a whole different cast.
We all tend to forget the specifics of landmark legal cases. Citizens United, a non-profit advocacy corporation, tried to buy advertising for its documentary film about Hillary Clinton within the window that McCain/Feingold banned corporate purchases of “electioneering” speech – 60 days before an election and 30 days before a primary. It was their law, not the Court decision, which equated money with speech.
Citizens United challenged the law on constitutional grounds – freedom of speech, freedom of association, equal protection. Amicus briefs supporting Citizens United were filed by Heritage Foundation (conservative), CATO Institute (Libertarian) and the ACLU (liberal). I thought that alignment was a sign of the end times.
And the court ruled in its favor, deciding 5 to 4 that it is (duh) unconstitutional to ban free speech selectively - only certain forms, only at certain times, and only to certain types of associations. Previous cases had struck down other provisions of McCain/Feingold, so another defeat should come as no surprise.
The criticism from Democrats and media was predictable – McCain/Feingold protected incumbents from competition and created a virtual monopoly for the mainstream media – themselves big and powerful corporations – to control the narrative during the weeks when regular people actually pay attention to elections. The stacked deck was unstacked by the Citizens United decision and the deck-stackers are still whining.
Not my team, but I don’t imagine that the Republican establishment was all too happy with the ruling, either – it enabled 2010 tea-party candidates like Rand Paul, Marco Rubio, Allan West, Nikki Haley and dozens of others to break through against the old-guard of the GOP and a media openly hostile to the liberty movement.
Feingold himself was defeated by a novice, and McCain barely survived an insurgent primary challenge. 60 new faces went to Congress and changed the trajectory of the debate on spending, deficits, and debt. Could the 2010 revolution have succeeded under the old rules that bought Barack Obama his victory? Maybe, but I doubt it.
What I find most troubling about the Citizens United case is that the dissenting opinion of the four liberal judges did not rest on any constitutional principle; rather it questioned the wisdom of rejecting the “common sense of the American people…who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.” Say what?
This is quite remarkable, yet almost never remarked upon. First of all, it is not the job of the Supreme Court to judge the wisdom of laws, only the laws themselves. Not to mention that the collective common sense of the American people is vested in its elected representatives, not in 4 partisan jurists appointed for life. Finally, the theories and ideologies of the early progressives (Roosevelt) are not the standard against which constitutional challenges are to be judged – the Constitution is the standard.
During my own fleeting campaign for Congress as a Libertarian Party candidate, I would have loved to have some corporation write me a check for $100,000 so I could take a full swing at socialist (c’mon, just say it) incumbent Tammy Baldwin – better yet, a dozen of them. I would have worn their logos on my suit like a NASSCAR driver so you all know who it is that loves liberty enough to send it a check. I would be happy to modify my stump speech: “I want to be your Congressman, not your Mommy…and buy all your ammo at Todd’s House of Guns.”
And Congresswoman Baldwin could have worn her backers’ logos, too – knowing Tammy, I’m sure she would do so with pride, as would Republican challenger Chad Lee. That debate would have been refreshingly honest, transparent as all get-out, and, heaven forbid, fun. Are we better off with processed-cheese candidates marketed on TV like timeshares and bankrolled by billionaires who have been sanitized by 7 layers of McCain/Feingold facades?
Isn’t it better to just know the truth than to hide the money trail through a labyrinth of PACS, 427s, 501c, foundations, institutes, associations, and all other mutant forms of “independent expenditures” that only exist to protect incumbents, insulate the two establishment parties, and seal the deal for entrenched special interests?
The best campaign finance reform is a blank piece of paper; let individual donors – and only individuals - give to individual candidates and put the entire sham-ethics industry out of business. Milton Freidman argued that corporations should make no donations of any sort, as it deprives shareholders of dividends that rightly belong to them. I agree. Let individual shareholders decide what causes, candidates, and charities are worthy of their donations, and remove all limits on their generosity. And ditto for individual union members.
It doesn’t concern me terribly that corporations seek to influence government; what concerns me terribly is that government has enough influence that they would bother. It was not supposed to be like this. Government was supposed to limited, and the “general welfare” was supposed to be the handful of things that are good for everyone, not favor one minority interest at the expense of another.
And the Supreme Court was supposed to set the boundaries for the political process, not be an extension of it. The 5-4 Court did not split over how to apply the Constitution in Citizens United; it split over whether or not to bother. That is chilling.
“Moment Of Clarity” is a weekly commentary by Libertarian writer and speaker Tim Nerenz, Ph.D. Visit Tim’s website www.timnerenz.com to find your moment and watch for the upcoming release of his new book, “Capitalista!”