Public financing of elections sounds like a good idea. But so does free speech. And it appears that honest philosophical examination finds these two ideals incompatible. Witness Hillary: The Movie, banned from cable television during the 2008 elections because of its campaign-promotional aspect. Well, off to the Supreme Court it went, which Supreme Court sent the case back for re-arguing. Given that the SC as it currently stands decidedly on the pro-free speech anti-campaign-reform side, this is taken as an indication that they’re planning on doing way more then conceding that the film should have been allowed to run. They very likely are looking at drastic scaling back of the limitations we place on political contributions, etc. If you need the “pro-free speech” argument spelled out again, George Will help you out.
3 thoughts on “Supreme Court and Hillary The Movie”
Scalito et al. are not defending free speech for you and me buddy, but for corporations. We can blog, shout, write, whatever at any time in support of a candidate (unless you’ve got some corporate money funding you; such a common problem, right?).
The issue here is whether the legal fiction that a corporation is a person (right to contract, etc.) should extend them full 1st Amendment free speech rights. Think about that. Does a corporation, on the brink of launching a wad of political cash, call up every shareholder (like us lowly proles with a few of their shares in a dwindling retirement plan) and get their go ahead before backing a candidate? Of course not. The collection of shareholders does not become some All-thing using the corporation to speak. Corporate speech is different in nature and quality from individual speech, or even interest-group speech (see 427’s, 501c4’s, etc.) The Roberts-Scalito-Thomas gang will not just gut McCain-Feingold, but invalidate every limitation on corporate money in politics going back to the era of Teddy Roosevelt.
Corporate America already has tons of levers to influence Washington with (PAC’s were made precisely to get around the limitations on corporate funding of campaign activities). Don’t be so eager to hand them even more.
Yes. I hope I wasn’t sounding celebratory — I actually think that line of reasoning is THE correct response, and I’m pretty sure I’m in favor of public financing (ala Lessig).
But here’s a question: how do you write the law to prevent loopholes? The president could pay himself a big bonus and buy the ads with “private” money. How do you avoid the loophole?
That is, unfortunately, exactly the kind of loophole has plagued all attempts at restricting the influence of corporate money on politics since the Tillman Act passed in 1907. (Trust me, I’m not going to solve it in a blog post.) Before the act a corporation could use general treasury funds to pay for ads, etc. In the aftermath many corporate heads simply took the money out in other forms (compensation in salary or stock, etc.). Here’s a quote from a useful article on the subject:
Finally, let me offer a sobering observation about the effectiveness of restrictions on corporations’ First Amendment rights. Even if the courts were to permit the banning of corporate political speech entirely,corporate influence and power would not be substantially reduced. Consider, for example, what happened in the wake of the Tillman Act of 1907, the federal law that banned corporations from contributing general treasury funds to candidates. Did corporate interests cease to exercise undue control over electoral politics? Hardly. Instead, the executives and financiers of corporations redoubled their own efforts to influence politicians to favor corporate interests, using their own money. That such money was made up for by increased salary taken from the corporate till was predictable.
The same phenomenon will occur with any broad restriction on corporate political speech. The executives and bankers behind the major corporations in America are the richest class of citizens outside of Major League Baseball All-Stars and Oprah Winfrey. The problem, in a nutshell, is corporate law. This body of “regulation”—and I use that term loosely—does almost nothing to limit the use of company funds by corporate executives. Fiduciary duties of care and loyalty are not offended by salaries and compensation packages that offend every other sensibility. The capital markets are no solution either. Although contractarian scholars have for the last three decades touted the ability of efficient capital markets to discipline corporate management, the markets have shown that even remarkably excessive forms of self-dealing evade punishment.
—Adam Winkler, CORPORATE PERSONHOOD AND THE
RIGHTS OF CORPORATE SPEECH, 30 Seattle University Law Review 863 (2007), p872
The Non-Profit Angle
Now a lot of the groups interested in killing McCain-Feingold point out that the soft money restrictions muzzle nonprofit corporations as well, which they describe as feel-good, grass-roots expressions of individual speech (the restrictions cover non-profits through the Wellstone amendment to the campaign finance bill).
The restrictions limit electioneering ads to hard money raised from individual contributors, subject to individual contribution limits, and require it be kept in a segregated fund (hard to cobble a TV buy from this kind of money, particular for a narrow issue, small non-profit). This why many political advocacy outfits have multiple departments: A PAC to directly assist favored candidates, a 501c4 to do general political work, and a 501c3 “foundation” or “charity” (note that churches and other community orgs use the same part of the tax code) to do public education on their pet issues while steering clear of direct candidate endorsement.
Should we loosen restrictions on soft money in politics for the sake unleashing non-profit advocacy? Consider that an electioneering non-profit makes an excellent front to cover for-profit corporate money, or even just private wealthy interests that want to push their views as a “grass-roots” movement. The powerful tend to do what they want, and maneuver around any law restricting the influence of their money. If the Supreme Court strikes down McCain-Feingold (and my guess is it will go further), it will not strike a blow for the public’s liberty, but rather reinforce the traditional power and influence of wealth in society.
So yeah, not only does money talk, it also has more rights than you.
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