Enhancing Democracy by Banning Speech
The misguided liberal response to Citizens United
Imagine how life will be now that giant corporations may spend as much as they want on political campaigns, as the Supreme Court recently decreed. All they will have to do to get their way is ask members of Congress: Do you want our money helping you—or your opponent? Given the sums available to Big Business, most politicians will be desperate to please.
So you might think. But consider a state where corporations are already allowed to spend as much as they want on elections: Illinois. Here, companies have established beyond doubt that this prerogative, when combined with $2, will get them a ride on the bus.
Illinois is something short of a corporate paradise. It ranks 30th among the states in its friendliness toward business. The Tax Foundation, which did the survey, complains of excessive sales, property, and unemployment insurance taxes.
Illinois is one of a minority of states requiring employers to pay more than the federal minimum wage. It is notorious for heavy workers' compensation costs. It puts no limits on the punitive damages a company can be assessed.
All this evidence should dispel the fear that future congressional debates will pit the senator from Exxon Mobil against her distinguished colleague from Bank of America. It turns out that where corporate expenditures are allowed, corporations a) don't do much or b) don't get much for what they do.
But many people in Washington have no time to waste examining the real world. As soon as the court decision came down in January, ruling that the corporate spending ban violated free-speech rights, they demanded action to undo this unconscionable wrong.
President Barack Obama used one of his weekly radio addresses to promise "a forceful, bipartisan response" to "repair the damage that has been done." Democrats in Congress have heeded the call.
Some have proposed legislation that would require CEOs to appear in all TV spots, mandate identification of corporations buying ads and outlaw spending by foreign companies, government contractors, and bailout recipients.
These may or may not pass muster with the Supreme Court. If the new regulations are intended less to enlighten voters than to punish corporations that engage in spending, the justices will probably give them the hook.
The ban on foreign corporations is hard to justify if you believe—as the court does—that the First Amendment protects not only the right to speak but the right to hear. Nor is it obvious that Congress can use bailout funding as an excuse to strip a company of a constitutional right.
But even if the sponsors could get their bill passed and upheld in court, it wouldn't affect the basic liberty of U.S. corporations to participate in election debates—which is what really cheeses the critics. Overruling the decision would require a constitutional amendment. Drastic as that may sound, some people are for it.
Democratic Sens. Christopher Dodd of Connecticut and Tom Udall of New Mexico have introduced an amendment to give the federal government and the states unlimited power to regulate campaign fundraising and expenditures. Sen. John Kerry (D-Mass.) has endorsed the idea.
When politicians start trying to amend the Constitution, it usually means they have gone off the rails. The campaign finance amendment is the liberal equivalent of the flag-burning amendment once pushed by conservatives, which barely missed getting through Congress.
Both amendments responded to a Supreme Court decision that offended some people on a visceral level. Both were solutions to a problem that had yet to materialize in any significant way.
Both also represent an attempt to narrow the scope of a fundamental liberty. They would create a large, unsightly exception to the First Amendment.
The leftish group Public Citizen, in a moment of creative inspiration, asserted that the measure would "restore the First Amendment." Yes, it would "restore" the First Amendment, which protects free speech, by silencing some voices on matters of importance in a democracy.
As the court put it, "The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech." If the amendment were to win ratification, Congress would be free to tell some people: "Shut up, or go to jail."
That's the difference between a corporation and a government. A corporation can spend millions trying to influence your choices. A government, granted sufficient power, can just take them away.
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Bonus Reason.tv video: 3 Reasons Not to Sweat The Citizens United Decision