Principled Free Speech Defense of a Loathsome Ruling
Like a lot of people who care about democracy and free speech and citizen power, I think the Supreme Court ruling allowing corporations to spend money on candidates like a coke-crazed Yuppie on a high priced call girl worrying and distasteful.
That said, my reaction yesterday was pretty underwhelmed compared to the Gotterdammerung predicted by other civil libertarians. So I was pleased to find that my favorite legal affairs blogger Glenn Greenwald applied his sharp analytical mind to the ruling and to objections to it. For one thing, he shares my less-than-alarmed response to the fears of corporate influence on American politics: “Does anyone believe that the ability of corporations to influence our political process was meaningfully limited before yesterday’s issuance of this ruling?”
Word that. But Greenwald is excellent on Constitutional issues and it’s here that his analysis shines. Here’s some abridged blockquoting:
Critics emphasize that the Court’s ruling will produce very bad outcomes: primarily that it will severely exacerbate the problem of corporate influence in our democracy. Even if this is true, it’s not really relevant. Either the First Amendment allows these speech restrictions or it doesn’t. In general, a law that violates the Constitution can’t be upheld because the law produces good outcomes (or because its invalidation would produce bad outcomes).
One of the central lessons of the Bush era should have been that illegal or unconstitutional actions — warrantless eavesdropping, torture, unilateral Presidential programs — can’t be justified because of the allegedly good results they produce (Protecting us from the Terrorists). The “rule of law” means we faithfully apply it in ways that produce outcomes we like and outcomes we don’t like….
…The First Amendment is not and never has been outcome-dependent; the Government is barred from restricting speech — especially political speech — no matter the good results that would result from the restrictions. That’s the price we pay for having the liberty of free speech. And even on a utilitarian level, the long-term dangers of allowing the Government to restrict political speech invariably outweigh whatever benefits accrue from such restrictions.
Oh, but he’s not done. Greenwald argues that corporate “personhood” is not a newly minted creation of yesterday’s ruling, but a longstanding principle of previous Supreme Court decisions. Like previous rulings upholding restrictions on campaign finance, it too has stare decisis, precedent. Those complaining that it bucks tradition ought to recognize that tradition is a really poor argument in favor of bad laws, even if those laws favor worthy principles like constraining corporate influence on democracy. Greenwald argues at length that such laws are easily circumvented by the teams of lawyers hired by wealthy corporations jealous of their political power. Such resources are not available to other groups affected by these campaign finance restrictions:
Ultimately, I think the free speech rights burdened by campaign finance laws are often significantly under-stated. I understand and sympathize with the argument that corporations are creatures of the state and should not enjoy the same rights as individuals. And one can’t help but note the vile irony that Muslim “War on Terror” detainees have been essentially declared by some courts not to be “persons” under the Constitution, whereas corporations are.
But the speech restrictions struck down by Citizens United do not only apply to Exxon and Halliburton; they also apply to non-profit advocacy corporations, such as, say, the ACLU and Planned Parenthood, as well as labor unions, which are genuinely burdened in their ability to express their views by these laws. I tend to take a more absolutist view of the First Amendment than many people, but laws which prohibit organized groups of people — which is what corporations are — from expressing political views goes right to the heart of free speech guarantees no matter how the First Amendment is understood. Does anyone doubt that the facts that gave rise to this case — namely, the government’s banning the release of a critical film about Hillary Clinton by Citizens United — is exactly what the First Amendment was designed to avoid? And does anyone doubt that the First Amendment bars the government from restricting the speech of organizations composed of like-minded citizens who band together in corporate form to work for a particular cause?
Go read the whole thing. This will probably not make my fellow lefties happy. And the idea that corporations might have “personhood” is seriously debatable — I’m working on a cartoon about that concept for next week. After all, intellectual honesty is not comfortable; yet when it comes to civil liberties, especially in the area of Free Speech, it is essential.