Citizens United protects

Overturning the Citizens United decision will provide no benefit to this country. Though its opponents have promised to take careful aim at the nefarious interests of manipulators and schemers when they promise to chase the corrupting influence of money from our politics, the tool by which they propose to do it is one which could do more harm than good. A constitutional amendment is a cudgel and a last resort that can return greater harm to the bearer than to the target if swung carelessly. It is not possible to override the precepts upon which Citizens United was decided without also fatally wounding the free speech protections that the First Amendment imparts. This not only for large corporations, but for you the individual as well.

Friend, the fact is that corporations are people. They are founded by people and controlled by people, and like people they can be as good as they are bad. Any act that is taken against a corporation prejudices the freedom of the people who control it. Sometimes this is necessary, especially in the cases where regulations are drawn up to provide for common protection against the harm that a single entity could do if it were to act in a reckless or uncaring or greedy manner. As insurance against those cases we have laws promoting worker safety and punishing pollution or market collusion. In these instances the intrusion against a single person’s or small group’s rights to own and exercise control over property is justified by the greater protection it affords to society as a whole.

In other instances, however, intrusions against corporate rights cannot be justified as promoting the common good because of the danger that such intrusions might pose to individual rights. For example, what couple could feel secure in the ownership of their marital home if Congress took it upon themselves to suspend the right to hold property in common in order to seize corporate assets? Might that couple then be required to one day board tenants against their will on the basis that what they own together could better serve the greater good by housing the homeless? This is obviously an extreme example which might be easily dismissed as improbable, but such dismissal in fact underscores the point. When the founding fathers amended the Constitution to include the explicit enumeration of protections that we now know as our Bill of Rights they did so because they knew that rights which were believed to be held only by inference or practicality or tradition could not be trusted to endure. Especially as they relate to the right of the individual to live a private life, rights exist as guarantees against every eventuality. They are not made to be withdrawn easily. If it is instead said that one enjoys protection only against most outcomes, if a right can be suspended on the basis of political expediency, then it cannot be said that a right exists at all.  

As far as opposition to the Citizens United decision is concerned, the common refrain is to concede that the point that overturning it will diminish rights of a sort while also arguing that those rights should never have been recognized in the first place because they attach to corporations and not to people. This is the line taken by Wolf-PAC, a group which has provided a model for an eventual constitutional amendment to counter the Citizens United decision. Though they haven’t yet advanced a specific proposal, their call for a change centers upon the demand that the offered amendment will hew to the principles that corporations are not people, and that they have none of the constitutional rights of people, and that they cannot raise money for political causes either directly or indirectly. Simply put, this is a terrifying statement of blind principle that, if enacted, would spell doom for the United States.

If you consider what a corporation is in its simplest form it is clear that the distinction which opponents of Citizens United hope to draw between people and corporations is ultimately unworkable. At its base a corporation is nothing more than a group of like minded individuals who have combined their assets for a common cause. Their cause may be business, or politics, or philanthropy, and all sorts of regulations have sprung up to differentiate these minutiae, but no matter the goals of a corporation, the underlying structure is nothing more than an expression of one’s right to association with others as one pleases.

This is the second half of the First Amendment which reads such that Congress shall not only “make no law… abridging the freedom of speech,” but also that “the right of the people to peaceably assemble” shall remain inviolable. Within those words are found the basis for our commonly held freedom of association which is itself the basis for the formation of a corporation. To strike out against corporate personhood is to strike against the foundation of our civil society. A labor union after all is a type of corporation. When they are formed it is at the behest of a group of people with the common interest of improving the conditions of their employment. In order to accomplish that task they legally bind themselves to each other so that one or a couple of representatives may speak for many in negotiations with management. Those few representatives are also charged with controlling the finances of the union, and in order to expand their influence and attract membership they may go so far as to host speaking tours or educational events or even pay for television advertisements with the money they collect from membership dues. What then would be the function of a union if it held no collective right to associate or speak freely under the guise of their corporate status?

Nor is it only unions which might be negatively impacted were it decided that people cannot exercise personal rights through the corporations which represent them. Charities, churches, trusts, and medical power of attorney arrangements (among others) would all be imperiled. Take for example churches or other religious organizations. Many are formed such that church assets are held in common through a corporate structure. This way congregants can be reassured that the money they donate to support their place of worship will be accounted for and used only according to the charter under which the church was incorporated. The corporate status is at least partial insurance against miscreants taking undue personal profit from donated assets. If we lived in a world where personal rights did not attach to corporations then it would be no violation of the freedom of religion to deny a church building permits because of distaste for the group it represented. In China, where religious protections exist only in name, this is already the case. Catholics, Baptists, Muslims and followers of the Falun Gong system of belief are among those who are forced to worship in secrecy in private homes and great fear.

We already live in a world where Donald J. Trump might become President, and the power that he could wield if Citizens United were overturned would be disastrous. Already he has expressed interest in closing up the internet, loosening up libel laws to target news media,  prosecuting political opponentsand he has barred reporters from covering him because he takes umbrage at their tone. If Citizens United were no more, and if corporate personhood were no more, and if corporations were prohibited from exercising the right to free speech, then Donald Trump would be free to go ahead with his plans to muzzle dissent against him. The New York Times, a corporation, would have to tread carefully if its right to free speech was not guaranteed because without the guarantee of that personal right its reporting could be censored according to the whim of government power.

The example might seem far-fetched, but it is exactly what is invited by the abolition of the rights which were confirmed under Citizens United. And, if we were to go so far as to say that corporations have none of the rights of people, then the New York Times would have far more than censorship to fear. Lacking the protections against unreasonable search and seizure which are afforded by the Fourth Amendment, the New York Times might find its presses and computers seized. An antagonistic government could even demand the ability to freely inspect corporate mail in order to identify and punish whistleblowers who might have approached the newspaper in order to expose wrong doing. Less dramatically, the proposal that a corporation should have no right to influence elections would prohibit the New York Times from writing and printing editorials that cover political figures or topics. They could be prohibited from endorsing or even criticizing candidates for office. Stripping corporations of the right to free speech would muzzle the press in the United States.

This even before considering the absurdity of the construction that it is somehow possible to prevent corporations from raising money for politicians either directly or indirectly. As a statement of principle, the idea that money and politics can be entirely dissociated is vague to the point of incomprehensibility. Michel Foucault was once asked why he was interested in politics, and his response illustrates the depth to which politics infiltrates every aspect of life about us and therefore the impossibility of approaching politics as if it can exist in an unencumbered and pure state. He questioned “what blindness, what deafness, what density of ideology would have to weigh me down to prevent me from being interested in what is probably the most crucial subject to our existence, that is to say the society in which we live, the economic relations within which it functions, and the system of power which defines the regular forms and the regular permissions and prohibitions of our conduct.” Everything about the way in which we conduct ourselves is in some way a political act.

This is seen clearly in the recent controversy which has embroiled North Carolina. Among other places, the state took it upon itself to pass discriminatory laws in an effort to castigate transgender men and women that have been arbitrarily slandered as dangers to society. The motive behind these laws, besides being a reaction to a perceived deviancy encroaching upon ‘normal’ society, is founded in a broader intuition about the role of religion, gender, and sexuality in American politics. In reaction many corporations have decided to dissociate themselves from North Carolina. By making a choice about how to spend their money, or in this case by refraining from spending money, the corporations that have boycotted North Carolina are using their finances to make a political statement. What’s more, some of them have donated to political action groups like the Human Rights Campaign and the American Civil Liberties Union in order to support those organizations’ efforts to overturn discriminatory laws. For some corporations that pride themselves on supporting progressive ideals, opposition to the North Carolinian law was a natural choice. No doubt the choice was made easier by the pressure to act which was levied against them by consumers and shareholders.

However, no matter how you cut it, a prohibition against corporations raising money either directly or indirectly for political causes would prohibit such action. Whenever a corporation decides to fly the rainbow flag or fire off a supportive tweet from a corporate Twitter account or sponsor employees that wish to march in a gay pride parade, they are using money to directly and indirectly support political causes. The crux of the matter is that despite the pronouncements to the contrary, money and its use is an act of speech. Whether it is a choice between buying local organic produce or mass market frozen dinners, or else a choice between buying shoes that are made in America by well paid workers as opposed to shoes sourced from Bangladeshi sweatshops, the choices that any of us make in how and why we spend money are wholly imbricated by politics. A world where the act of spending money is not protected as an act of speech in one in which government could prohibit people from buying Bernie Sanders stickers to display on their cars and water bottles.

Again, the protestation might be made that the true target of campaign finance reform are soulless corporations and not individual acts, but the principles which best protect individuals also protect cooperative action by their very nature. What’s more, there is good cause to allow corporations to be formed so that people can anonymously support political causes. Not one of us knows what views might be in vogue even a year from now, but looking to the past it is clear that some of the views that are now gaining common currency were extremely dangerous to express even a couple of decades previous.

On the issue of gay rights, it was not long ago at all that someone who spoke out in favor of gay, lesbian, transgender or any other non-normative individuals would likely face extreme personal criticism. They would be risking their job, their social connections, and even personal physical danger for daring to advocate on the behalf of others or themselves. The amazing thing is that people were willing to risk all that, but it is unreasonable to expect everyone to be so brave. However, so long as an individual is able to form a corporation with others of like minds then they can veil their identities and thereby remain secure while also advancing the causes that they find just. The corporate right to free speech allows people to advocate for controversial ideas like gay rights without exposing themselves to personal danger. As before, no one among us knows what ideas might be controversial in the future. It could even come to pass that vitriol against Muslims might rise to the level that speaking up for them would attract accusations of sympathy for terrorism. Considering the slanders that Khizr Khan has already endured, it’s clear that such an eventuality is not impossible. Should this bleak future be realized, it would be essential that mechanisms like corporate personhood existed to shelter advocates for unpopular ideas from personal risk.

It is frankly conceited to demand that government apply its power to discriminate between acceptable and unacceptable speech. Even when the Koch brothers have raised enormous amounts of money to advance causes that seem ridiculous, proposing to counter them by prohibiting their speech altogether assumes that one’s own views will never be targeted for similar treatment. If we were to concede the principle that some speech by some groups can be prohibited because of the influence it exerts on politics, then it might be possible to prohibit petroleum companies from advocating for new pipelines or fewer restrictions on drilling because of the danger that those activities pose to the environment. However, in winning that victory we would expose ourselves to the possibility of far more painful defeats. Should the political winds shift, and without the protection of the principle protecting the corporate right to free speech, Planned Parenthood could be forbidden from advertising on the basis that their advertisement promotes the murder of children.

For all the harm that might be attributed to it, the Citizens United decision ultimately protects our rights. It is still illegal for corporations or individuals to donate more than a limited amount to a candidate or their campaign. It is still illegal for candidates to accept bribes to change their positions, as it is illegal for such bribes to be offered. It is even illegal for third party advocates to coordinate with candidates or their campaigns in order to ensure consistent messaging. Of course there is room for better enforcement in all of these arenas, but that is a failure of the application of law rather than the law itself. Ultimately, voters decide the fate of the United States. No matter how much David or Charles Koch or other titans of political advocacy might spend to advocate for their preferred political positions, their votes count exactly as much as anyone else’s. Votes might be swayed one way or the other, but that is after all the point of democratic politics. Should you wish for more votes, be more convincing.  

 

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