Corporations are people, and Mitt Romney was right when he said it. Underlying their constitution are two basic and entirely non-controversial ideas. The first is that individuals have a right to pool their resources in the pursuit of a common goal, and the second is that these same individuals have the right to appoint for themselves a legal representative who will exercise personal rights in their stead. Upon this foundation are built important constructs such as the legal power of attorney, trusteeships, and labor unions. Remember then that to say corporations are people is not a statement of value. The essence of a corporation is simply the reflection of the people who control it, and as such a corporation can be as greedy or as good as it’s owners. But, like any other communal activity, the organization of corporations carries with it the power to amplify. Whether it be for profit or ideology, the efforts of an organized whole will almost always outstrip what its constituent parts could have achieved individually. Because of this power, it’s right that corporations should endure the increased scrutiny of the public. In the wake of the Citizens United v. FEC decision, a large portion of this scrutiny has fallen upon the realm of campaign finance and speech, with a common assertion being that money is not speech and that corporations do not deserve the same First Amendment protections as a person. While I understand and sympathize with the feeling that our system of elections should be reformed, curtailing speech is a remarkably dangerous way to go about it.
And, should Citizens United have been decided oppositely, restraint of speech is exactly what we would have won, and the country would have been far poorer for it. Our founding fathers, many of whom owned a press and were therefore editors of newspapers by trade, understood this intimately. Should democracy do more than survive, if it wishes to in fact prosper, it depends upon the vivacious and fearless exchange of ideas. That each person in the community should be free to express their conscience is the hallmark of democratic liberalism. But, that each person has the right to speak does not necessarily imply a corresponding right to be heard. For this reason the First Amendment protects the shout alongside the whisper, as its entire function depends upon the fact that it cannot distinguish forms or content of speech as worthy or unworthy. Such power of selection is left to the mob who, scary though it is, must be trusted to rationally discriminate among the ideas with which they are presented so as to preserve only those that they find beneficial or agreeable. However, an opposite decision in Citizens United could well have left the government as the arbiter of which ideas can be advanced and when. What then would be the position of newspapers if it was found that corporations had no right to free speech? Could the Seattle Times safely publish editorials on issues of public concern, or could they endorse candidates? Could a paper fearlessly provide factual coverage of an event which nonetheless gave a negative impression of a politician or position? That ‘no’ could be the answer to these questions is the real possibility of a world wherein corporations are prohibited from engaging in political discourse. The function of legislating the methods through which political ideas can be expressed simply cannot be trusted to government because such power is inevitably dangerous in that it invites abuse and disadvantages minority viewpoints. Although the democratic mob is often fallible, at least it does not have the power to force certain things to never be said at all.
Instead, the power of the mob lays with its ability to react to speech. In a democracy such as ours we hold the power to censure rather than censor speech. While this may not seem like much, the experience of Donald Trump this last week demonstrates the pure strength of public reprobation. His ill-considered speech has earned him public scorn, and perhaps more significantly, it has also cost him a serious amount of money. In reacting to his odious comments about Mexican immigrants, many of Donald Trump’s former business partners have chosen to make their opinion known by withdrawing from their contracts. They have withheld money in order to express themselves, which brings us to the question of exactly what it means to speak. Clearly the definition cannot be so strict as to exclude everything outside the actual vocalization of an opinion, since wearing a slogan on a button or flying a flag above your house or even dying one’s hair or tattooing one’s body are rightly protected modes of expression. After all, it is not only speech which the First Amendment protects, but also freedom of expression and conscience and association. Consequently, any meaningful understanding of these freedoms must also include the freedom to spend money in order to realize them. To organize a club one might well need to buy posters and other supplies, just as speakers at a political rally might need a microphone and amplifiers, and it undoubtedly costs money to travel in order to participate in the various public functions of democracy. So, among the freedoms protected by the First Amendment is the freedom to realize them by spending money as one chooses, or has happened with Donald Trump, to refrain from spending money. The act itself, of spending or withholding money, is unavoidably an act of expression. In every act of consumption can be found a political statement, as when someone chooses to shop at the local farmers market instead of a major chain, or when someone donates to their church or a worthy non-profit, or when someone contracts a printer to produce huge banners declaiming how wrong I am about money being speech.
But, that it should be so does not lay us entirely bare to the dangers of corruption. The First Amendment protects the right to try to influence opinions without admitting a right to buy a vote or an official privilege. As before the Citizens United decision, corporations, individuals, and all other manner of organizations, are prohibited from contributing more than a set amount to any political party, campaign, or candidate. Nothing has changed in that regard. The main consequence of Citizens United, along with the subsequent Speechnow.org v. FEC decision, is that private organizations are allowed to accept donations intended to advocate for a particular candidate or political position. These private organizations are prohibited by law from coordinating with the candidate that they support, although lax enforcement of that rule leaves it ripe for reform. It’s this change which has given rise to the explosion in campaign related spending, but these ‘super-PACS’ really aren’t doing anything particularly remarkable. The advertisements that they run are pure political speech in the sense that any individual in the United States has a basic right to declare their support of a politician with as much might as they can muster. The existence of super-PACS doesn’t create any new venue for speech. Their function is purely coordinative, in that these super-PACS allow individuals with similar interests to combine their efforts. While it might be louder, there is no basic difference in the character of group speech as compared to individual speech.
It is here that one of the lesser understood facets of the Citizens United v. FEC decision gains importance. Between Citizens United and the subsequent FCC v. AT&T Inc. ruling, the Supreme Court drew a distinction between a ‘personal right’ and the rights of a person. The first can be held individually, while the other is dispersible. In the judgement of the Court, and in my own as well, speech is rightly understood as a communal right of persons, while something such as privacy is more closely interpreted as a personal, and individual right. This means that while the Court indeed ruled that corporations enjoy the rights of a person, it is only in the sense of a legal person, whereas they do not enjoy all the privileges associated with individual personhood. The exact consequence of this is that corporations are recognized to possess the rights which people can exercise in concert with each other, such as the right to own property or speak, but not those rights which are purely individual, such as the right to vote or marry. The rights which corporations enjoy as ‘people’ are simply those which the persons controlling the corporation are exercising communally, as a natural extension of the First Amendment right to freedom of association. As such, corporations deserve exactly the same First Amendment protections as anyone else. How could we say that a group of people are allowed to speak individually but not communally? Are the individual rights of these persons somehow diluted by the fact that they are exercising them in concert with others?
To this I say no, and rather emphatically. Every proposed solution which I have seen advanced in order to fix the supposed problem of corporate spending in elections would empower the government to select which political speech is acceptable and which is not. It’s almost impossible for me to express the revulsion with which I regard this notion. The danger of inviting the government to dictate the maximum amount of fervor with which an idea can be advanced simply cannot be exaggerated. Such regulation would empower the government to select which ideas should be winners and which should be losers, and in that selection we would lose the vibrancy of debate which has sustained our nation for so long. It is impossible to disassociate the freedom to speak as one pleases as an individual, and the concurrent right to speak similarly as a part of a group. We need not all be our own spokesmen, and the Citizens United decision simply recognized the fact that people do, and should, possess the right to contribute money, or time, or whatever else they wish, in order to make their opinion known.
Ultimately, we must ask ourselves what matters in our elections. Are these corporations who can run advertisements, or the newspapers who report on candidates, allowed to vote? Of course they can’t. Voting is a purely personal right. So, ultimately, politicians are elected on the merit of the votes which they receive. The power of money in politics is therefore nothing more than the power to advertise, to convince. It’s true, votes can be bought, but only if the voter is willing to sell it. And, if they are, then so what? It’s their vote to do with as they wish, no matter how it’s used. Frankly, what a conceit it is to examine another person’s vote and say that they were wrong to have exercised it as they pleased. It’s their business, and theirs alone. Because of this, I cannot help but feel that the criticism of money in politics is basically an oblique criticism of people with opposing political views. It seems to assume that these nameless ‘other’ voters are being deluded by advertising and that they are therefore too dumb to be trusted to vote correctly, or perhaps at all. What an unspeakably dangerous thought that is.