Banning Pamphlets? It’s Common Sense

By David Will ’14

Thomas Paine’s Common Sense made a compelling case for American freedom, but if Paine and his supporters had decided to freely associate as a corporation in their advocacy too close to an election, until recently their speech would have been unconstitutional. An impossible prospect? Hardly. Just look to the oral arguments of Citizens United vs. Federal Election Commission (FEC), the landmark 2010 Supreme Court decision that struck down many campaign finance regulations. Then Solicitor General Elena Kagan stated that the purview of constitutional government oversight extended to banning pamphlets that were funded and disseminated by an incorporated entity.

For a decision with such wide-ranging implications, the circumstances of the case were remarkably narrow. The nonprofit corporation Citizens United wished to electronically advertise and distribute the film, Hillary: The Movie, within thirty days of the last 2008 Democratic Party primary election. Overriding antiquated precedent, the conservative majority on the Court held that the FEC’s ban on political advertising in that timeframe constituted a chilling effect on free speech that violated the First Amendment of the Constitution. Liberals who have castigated the decision as giving an expanded voice to speakers of a corporate identity are correct, insofar as unlimited funds may now be donated to independent expenditures, commonly known as Political Action Committees (PACs).  While some see this as a problem, a free-market system, rather than a regulatory regime, ought to be the method by which speech is governed.

Much of the public deriding of the Citizen’s United decision surrounds the concept of “corporate personhood”. The debate was reignited in the summer of 2011 when Mitt Romney, speaking inelegantly during a heated exchange with a heckler, shouted the following, “Corporations are people, my friend!” Liberals jumped on the semantic slip of the Republican front-runner to help cement his perception among voters as out-of-touch. Americans’ negative reaction to the proclamation is due to people’s view of corporations as domineering skyscrapers that house the unpunished culprits of the financial crisis. In fact, Romney was speaking of the employees who toil long hours within those towering structures. By virtue of the voluntary entry of workers into a corporate entity, a nexus emerges from their collaboration toward common interests. The significance of corporations is not that their priorities run contrary to populist interests, but rather that those interests are driven by the free choices of many self-interested participants.

To realize the scope of government authority before the decision, look no further than the dissenting opinion of the Court, written by Justice John Paul Stevens. Taking issue with the assertion of the conservative majority that speech would be stifled under the law, Stevens and his three concurring liberal counterparts offered what they saw as an act of generosity. Stevens writes, “Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to…broadcast Hillary [the Movie] at any time other than the 30 days before the last primary election.” The dissenting Justices viewed a prohibition on the speech of freely associating people during the most critical junctures of elections as a compromise. My, how kind!

A cornerstone of Justice Steven’s dissent actually frames the Court’s majority perspective. He writes, “Going forward, corporations and unions will be free to spend as much general treasury money as they wish on ads that support or attack specific candidates…The court’s ruling thus dramatically enhances the role of corporations and unions and the narrow interests they represent.” What was meant to be a conviction of corporate recognition in the sphere of electioneering in fact hones the case for the majority. Rather than viewing a free-market endorsed conglomeration as representative of only a sliver of the people’s concerns, the sustained and self-selecting collection of workers evidences a concentration of citizens’ common interests. The beauty is this: potency of power turns proportionally on the free choices of individual actors, not on regulations of the state.

Progressives contend that a free-market model for determining appropriate speakers in the public sphere is based on a fallacy. To engage commercially with an incorporated body, they argue, is not a tacit endorsement of the entity’s agenda. It is impossible to imagine a society in which citizens participate economically solely with those with whom they fully agreed. In fact, as Justice Kennedy states in the majority opinion, both individuals and corporations employ fungible funds accrued from scores of transactions in the global economy. With that in mind, it becomes difficult to distinguish corporate speakers from otherwise associated individuals as a matter of principle, and therefore to hone in on what specifically sets incorporated entities apart as uniquely problematic.

The emergence of a parallel between individuals and incorporated entities in the funding of electioneering is indicative of two key truths. First, as Kennedy notes, the First Amendment does not allow for the quelling of speech based on the characteristics of the speaker’s identity. If no difference principle may be established to distinguish individuals from united actors, vast wealth is left as the corporation’s sole and supposedly problematic unique trait. Furthermore, if one is to accept the assertion of the dissent that an abundance of resources is directly proportional to influence, then the Court’s minority faction may be shown to be troubled only by the potency of the messages they fear corporations will be able to express. The shock value from staggering figures of money in politics is not enough to justify excluding a demographic from electioneering, especially if such participation cannot be shown to silence others. It is common to argue that corporate spending curbs private speech with disproportionately large resources, however those who make such a claim fail to recognize that corporate electioneering is itself private speech.

So, with all the warnings leading up to the election season, where is the crisis? With federal rules pruned, discourse has not plummeted and corruption has not skyrocketed. Instead, this election season includes a new demographic of speakers in public discourse. The Republican presidential nominee’s slip did not betray a prioritization of the rich over everyday people, but rather revealed an understanding that Americans have the right to assemble and participate in public discourse. When the Citizen’s United decision was handed down, that was the moment when the floodgates were supposed to open, and all our voices were going to be drowned out. Well, two and a half years after the decision, it remains to be seen what all the fuss was about.

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