Thursday, January 21, 2010

Corporate Free Speech

Today the Supreme Court decided Citizens United v. FEC, overruling established precedent to declare unconstitutional statutory restrictions on the ability of corporations to pay for political advertisements. Back in the day when free speech cases concerned obscenity or civil rights or anti-war protests, the more liberal members of the Court would take the side of the First Amendment, while the more conservative members generally supported restrictions on speech. So today, when the five most conservative members of the Court are extolling the virtues of free speech as protected by the Fist Amendment, you have to wonder whether this case is really about free speech at all.

One problem with the decision is that the Court seems to have conflated the issue of free speech with the issue of the money that is spent to air political advertising. Granted that you sometimes need money to get your message across, restrictions on the amount of money that corporations can spend to air political advertisements do not seem the same as direct restrictions on speech itself. The campaign finance laws that the Supreme Court struck down today represented an effort to limit the impact of money in determining the outcome of elections (in other words, the amount you can pay to get your message seen, as opposed to the kinds of messages you can create). These laws obviously did not limit all of the unfairnesses of the current system, of course (wealthy individuals, for example, still have a tremendous advantage in using their personal fortunes to run for office), but is the solution to throw out all campaign finance restrictions, so that election contests become complete financial free-for-alls? I'm sure the tv networks will appreciate all those new advertising dollars, but is the elimination of all advertising restrictions really the best way to promote democracy? Can corporations really be trusted to spread messages that are in the people's best interests?

What also gets conflated in this decision are the rights of corporate "persons" and the rights of natural persons. I'm not saying that we should dispose of the legal fiction of corporate personhood entirely. In fact, there are good arguments for treating corporations as persons under the law. It may even be necessary for the law to have adopted that legal fiction in order to hold corporations legally accountable for their actions. But does it necessarily follow that fictional persons should have exactly the same rights as human beings? I heard a talk by an economist named Raj Patel last night. He mentioned a recent documentary, The Corporation, that attempted to answer the question of what kind of person a corporation would be if corporations were actually human beings. Strangely enough, a corporation seems to fit most, if not all of the criteria the medical profession uses to label patients as psychopaths. But you don't have to agree that corporations are evil to wonder whether corporations should have exactly the same rights as actual humans. Should corporations be allowed to get married, for example? I think the Supreme Court would say no.  As Justice Stevens stated:
[C]orporations have no consciences, no beliefs, no feelings, no thoughts, no desires. . . . [T]hey are not themselves members of "We the People" by whom and for whom our Constitution was established.

So what kind of world can we look forward to if Congress cannot find a way to scale back this decision?  I imagine a world in which the networks are flooded with corporate political advertising to the extent that most people will probably distrust most of it, even more than they already distrust advertising.  Jesse Ventura has suggested that politicians be required to wear their corporate sponsorships on their clothing like NASCAR drivers.  Maybe in the future world of politics, we will become more aware of the corporate money bankrolling various election campaigns, and we will know which of our representatives were brought to us by Exxon or Archer Daniels or Wal-Mart.  Fortunately, other ways have emerged, most prominently on the internet, in which competing voices can be heard even without large amounts of resources behind them.   Youtube levels the playing field to an extent.  In the so-called marketplace of ideas, all sources of information, including the demagogic, the salacious, the corrupt, and the idealistic, get their chance to broadcast.  One hopes that people can be discerning enough to understand what it means when a political message carries corporate sponsorship.

(photo by Kevin Labianco on flickr)


  1. I've posted this elsewhere, but here's some food for thought :)

    Frankly, I'm waiting to see how the repubicans squawk when CITGO (it may be owned by Venezuela, but is a US Corporation) drops a few BILLION dollars on media for a slate of candidates in congressional primaries. Maybe they can get their candidates to run as Republicans, just to screw around that party. :)

    Or maybe the nice folks at ARAMCO (Exxon-Mobil-& The House of Saud) can put up some candidates and toss some more BILLIONS in media buys. They can get their guys in and vote for US partnership with some of the more nasty radical jihadists...

    The gloves are off, the tyrannosauruses are going to get into battle with each other.

  2. I envision something more like this: in future elections, people will just be saturated by campaign ads, even more than now, to the point where everyone will become cynical about everything. It will be like the Soviet Union, with propaganda everywhere, but most people don't believe any of it. Except we will have both government propaganda and corporate propaganda. Even more corporate than government. So by allowing almost unlimited spending for campaign commercials, the effectiveness of those ads will be diminished, though they will still make us dull and dispirited. And luckily, as I mentioned in my post, we have the rise of free media to counter the profusion of corporate advertising.

    Thanks for stopping by and commenting.