The Supreme Court on Corporate Speech: Quick FAQ

My Facebook and Twitter accounts lit up today with a wide variety of opinions about today’s Supreme Court ruling on corporate political speech. Most were disturbed the Court’s ruling, as was I, but it came as a little surprise to me. While I appreciate the Court’s strong affirmation of free speech rights in the opinion, I am concerned that corporations, and unions, now have unleashed freedoms to overwhelm the political and policy debates with their perspectives.

Let me try to summarize today’s Court opinion in simple terms, and then provide some brief opinion on it:

1. What did the Court decide today in regards to corporate and union spending limits?

“The NY Times provides the best summary here: The ruling, Citizens United v. Federal Election Commission, No. 08-205, overruled two precedents: Austin v. Michigan Chamber of Commerce, a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission, a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions. The 2002 law, usually called McCain-Feingold, banned the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations or labor unions from their general funds in the 30 days before a presidential primary and in the 60 days before the general elections.”

In other words, the law prior today was that corporations must abide by the federal corporate campaign spending limit of $10,000 per campaign, and this money had to be funneled through a corporate or union PAC. The money also had to be given by individuals in the corporation to the PAC. No direct contributions from the corporate treasury were permitted. Electronic communications, including commercials, Internet ads, and infomercials were included within that spending limit.

Today’s ruling overturned that precedent, allowing corporations, and unions, to spend unlimited corporate funds directly from the corporate account and bypass the PAC requirement as well as the spending limit. To put it more crassly, companies can spend as much as they want to advocate a policy or to benefit or defeat a candidate prior to an election. There are no more limits.

Well, don’t corporations deserve an equal voice if they are going to pay taxes and abide by our laws? Yes, absolutely. They deserve an equal one, not a stronger one. Individuals are bound by a $4,600 spending limit to support federal candidates for office. Corporations ALREADY could contribute $10,000 as “persons” through their PAC. Now, they not only can give through their PAC, but they can spend unlimited, unregulated amounts to support or defeat a candidate. That’s like saying that David and Goliath were on a level playing field just because they both had a sling if you think this has made corporations more “equal”.

2. Does this ruling overturn limits on corporate and union PAC donations?

No. Corporate and union PACS still will be limited to donations of $10,000 for federal candidates and elections, and corporations still cannot give unlimited and unregulated funds to a political candidate. They simply can spend as much as they want on their own to endorse or threaten a candidate. The ruling only applies to “communications” or speech made by the company or union itself, and not to campaign donations.

3. What was the Court’s rationale?

Simply this:

a) The Court has long held … wrongly in my estimation … that the corporation is a “person” under the law.

b) “Persons” are guaranteed free expression rights by the 1st Amendment of the Constitution and are protected from government abridgement of those rights.

c) Therefore, if a corporation (or a union) is a “person” under the law, they enjoy free speech rights and should be able to advocate for the candidate or issue of their choice — or as in the case at issue, against a candidate of their choice (Hillary Clinton in the case before the Court).

4. What’s your opinion of their rationale?

The Court technically and constitutionally is correct IF you follow its prior precedent that a corporation is a “person”. I disagree with that precedent, and I believe it has had disastrous impact on American law and justice. If you want a good introduction to this issue, see the documentary “The Corporation”. If you do agree with the Court’s precedent concerning the nature of a corporation, then you probably have to agree with the Court’s opinion. It followed the rules of stare decisis, or its precedent.

But even assuming that a corporation is a person, the Court should have ruled for a limitation on speech (we do have others, such as limitations on violent speech and child pornography) on the grounds of just and good public policy. Let’s take the current health care reform debate as an example. Health insurance companies and pharmaceutical companies formed “527 groups” to advocate against the health care reform initiative, and their sponsored ads have run day and night on television to scare the American public about health care rationing, death panels and the like. Of course, much of their characterizations of the health care bills being considered in Congress are terrible exaggerations in their own corporate interests, but they are effective at causing hesitation and fear among the American public. They killed the 1994 health reform, and they may have their day still with Obama’s effort.

After today’s ruling, those same companies can spend unlimited dollars running television, radio or Internet ads that advocate on behalf of or against a political candidate. For example, the CEO’s of Verizon Wireless and Whole Foods are on record as opposing health care reform (shame on them). In the upcoming election, they could spend unlimited corporate cash running ads against a Democratic candidate who voted for health care reform. Of course, to be fair, a union also can spend unlimited cash to run ads against a Republican who did not support reform. The opinion benefits corporations and unions equally, but it does not have an equal result because corporations have much more money to spend than unions in most cases. Union money is not small, but corporate revenues far surpass union dues. After today’s ruling, those who have little money to advocate their position against corporations or unions will be at a serious disadvantage — even more than they are now. Where is the biblical prophet Amos when you need him?

For those of you conservatively inclined, this could impact your cause or candidates too. One Knoxville blogger who is a Republican but who wants to see his current Republican congressman replaced with another wrote this today about the Court’s opinion:

“Good news out of the Supreme Court yesterday! Anyone interested in taking up a collection to raise money to defeat congressman John Duncan? He and his dad have held the seat for 46 years. No offense, Jimmy. Your time is up, and as of yesterday, we can outspend you. Your seat now belongs to the corporatocracy. Any company or companies willing to outspend your donors can own your seat.”

5. What do you think the real impact of the opinion is?

It’s hard to tell. The real impact likely will disadvantage groups that tend to vote Democratic. However, there will be exceptions. There will be races where unlimited union spending will damage non-union friendly candidates. One can actually make the argument that this ruling advantages Democrats (not to be confused with the poor and minorities) because unions will be more likely to advocate on behalf of specific candidates than corporations will. Most smart companies are not going to risk damage to their corporate revenues by running public ads that openly support or work for the defeat of a political candidate of either party. Companies such as Wal-Mart or Verizon Wireless may lean towards the conservative direction, but they are not going to risk losing business (including my own, in the case of Verizon) by running ads against a Democratic candidate. So, at the end of the day, I’m not too worried when it comes to corporate spending on ads for or against political candidates unless those companies aggregate their donations into a group with a name that disguises their donation.

The President and Congress will make hay over this opinion, issue strong statements against it, and promise a legislative fix. However, that mostly will be a public relations stunt. The opinion today was based on a constitutional analysis, and not a statutory one. That means that the only way to overturn today’s decision is by constitutional amendment (very unlikely to happen) or by changing the composition of the Court (wait for a judicial vacancy or two).

The significance of today’s decision remains to be seen, but one thing is certain: Today’s ruling was a ruling on behalf of the moneyed interests, and it begs the question of who will speak for the voiceless. Will they even be heard if they do?

6. Does the majority on the Court give a darn as to whether the poor and those without a voice are able to be heard in the public debate?

I’ll let you be the “judge”.

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Comments
12 Responses to “The Supreme Court on Corporate Speech: Quick FAQ”
  1. Chris Beasley says:

    Todd,

    Corporations pay their taxes just like most individuals in America. If they want to waste their money on campaign ads, why shouldn’t they be able to? You’ve stated the reason in your article why this is not really a big deal. Free enterprise says if you are not happy with a corporation (i.e. Verizon and Whole Foods do not support health care) simply take your business else where.

    A corporation is nothing more than a group of like-minded individuals united in a common goal. That common goal is ususally to make a profit. (I say usually because some of our biggest corporations are non/not-for profit coroporations.) I would hope those of us living in a free America don’t see making profit as an evil thing though sometimes I wonder.

    My opinion is coroporations deserve the same stage for their opinions as any other individual. I much prefer a silly campaign ad over entrenched lobbying as a matter of fact. The ideal solution would be to make lobbying on Capital Hill illegal which would force corporations to air their opinions to America through campaign ads to let us decide how they influence our policies, not career politicians catching the kick backs from lobbyists. That makes too much sense though and I know it will never happen but I digress.

    Back to the point, the really neat thing is we as individuals have the right to react to the opinions of corporations expressed in campaign ads and make decisions if we want to continue to align ourselves with them. I like those guys from the 1700’s with the powdered wigs more and more each day.

    Chris

  2. Kole says:

    First, I was under the idea that they still could not donate directly to a political candidate. That the funds had to go to places like the DNC or RNC. I could be wrong here, and if I am, please feel free to set me straight. I have to say, even if I’m wrong, I still do not mind. If you take away the company is a “person” precident, I still do not mind. We have to many corporate regulations as it is. Who is the government to tell companies how and where they can spend their money? You have another post on this blog comparing Clinton’s speech as equal to Reagan’s Berlin Wall speech. It seems to me that the meat of that post was freedom. Where is that same love of freedom and information here? The bottom line is it comes down to the people to decide. I know people who didn’t vote for Obama because he is black. I also watched the “How Obama got elected video.” Both cases are wrong and sad, but people have to make up their minds at the end of the day. I know there will be a few that take the words of a companies add, or unions add, as truth and base their opinion off of that. I would hope that not be the case but, this is one step towards more freedom and that is never a bad thing in today’s America. We are losing more everyday, it makes me happy to even get a little back. On that note, and I’d like to know your feelings on this, we should now extend that same freedom of speech to the church.

  3. toddbouldin says:

    Hey my good reliable conservative defenders 🙂 Thanks for reading my notes. I’m grateful. Here are a few responses:

    a) First, Kole you are correct that corporations still cannot give directly to a candidate except through a PAC and under the spending limits. They simply can spend unlimited cash unregulated on their own to support or oppose a candidate. (see #2). As I stated, I think that’s highly unlikely in most cases, but we should not be naive that companies may use this to threaten members of Congress to vote their way. That’s scary to me.

    b) I cannot for the life of me understand how you see companies having an “equal” voice if allowed to spend an unregulated amount in campaigns. That’s like saying that David and Goliath were equal on the battlefield because both had a sling. Well, one clearly had an advantage. Of course, sometimes justice will prevail because of good people,and David will win. But that’s not because it was an equal match. It concerns me if we are more disturbed that a company might lose its voice over actual people who should have a voice.

    For example, there are hundreds of thousands of part-time workers in America who definitely are for health care reform. They have few organizations with funds that can argue their point of view. They already were disadvantaged in the public debate. As a result of this opinion, an insurance company can spend unlimited amounts to persuade the public not to support reform, but those part-time people have little or no access to the same revenues to run ads day and night. That may be freedom to you, but that sounds like tyranny to me. It already was bad, and now it’s worse.

    c) If you told the average person that a company is a “person”, they would laugh in your face. It is an entity created by the government for the purpose of liability and taxes. Chris, a company is not necessarily like-minded people. For example, my guess is that most employees of Whole Foods want access to health care insurance. Their CEO does not support it. Those are not like-minded individuals. The CEO or the corporation does not speak for those who are part of the company.

    d) Kole, I’m completely against freedom of churches to endorse political candidates – they should be free to speak out on issues and policies, but not on candidates. Go back and read the whole history of the Middle Ages and the relationship between the popes, the church and the King, and you will see why. We have enough politics in the church as it is — and people are still free to speak freely in support of candidates in Sunday School etc, but a church staff should not be able to endorse or support candidates. The church loses its witness and its influence in society … and loses the gospel … when it becomes a tool of the political machine.

    I learned a long time ago that when companies would come to our congressional office and ask for a “level playing field”, the playing field almost always was never level. That’s how I feel about this case.

  4. c hand says:

    Todd – Are you “completely against freedom of [Black]churches to endorse political candidates?” How would you remove politics from Reverand Wright’s and Obama’s church when politics is central to their mission?

  5. Chris Beasley says:

    Todd,

    Again I ask the question why is making a profit evil? Without profit, no one works. Without work, we don’t have money to give to the poor. Totally agree that giving is a moral mandate. Totally disagree that giving is a GOVERNMENT MANDATE. Please don’t question and/or insinuate questions about my morality of loving and helping the poor. It is my belief that is it MY PERSONAL mandate though between me and God that helps me grow spiritually. NOT BETWEEN ME AND THE GOVERNMENT. Myself, my church, and the organization I volunteer with can do a much better job of giving, and guess what, nurturing the gift than a check from the government with no follow up to uplift the recipient rather than cripple them morally with just another hand out. We should be in the business as Christians of hand ups, not hand outs. The government is not equipped nor should it be to do hand ups. All they can do is hand out. We all sent several thousand dollars to the government last year. What could that money have done in our churches?

    It was truly my hope to just post an opinion here but Todd I got to tell you, I feel like you sort of crossed a line. I’m sure you meant no harm and I’m a big boy and I will get over it.

    Keep the opinions coming and I’ll keep reading them. I appreciate the fact that you put your thoughts out openly for comment. Not many people would do that. You actually challenge me to think about why I believe the things I believe. I thank you for that.

    Chris

  6. toddbouldin says:

    C Hand (don’t know your name ha), I agree with you on politics in black churches entirely. I think there are historical reasons it is the way it is including discrimination and because the black church serves as as the center of black cultural life in a way that the church does not serve for the white church. But yes, I am just as uncomfortable with black church endorsements as white ones.

    There is a difference though between Rev. Wright speaking against a policy (war, corporate taxes etc) and speaking for or against a candidate. The law distinguishes between the two, as it should.

  7. toddbouldin says:

    Thanks for your response, Chris. I think I see why you felt I crossed a line, and I apologize. Notice that I didn’t say, “You don’t care about the poor.” I know you do. What I said was, “You guys don’t seem to care that the poor don’t have a voice as a result of this opinion.” I apologize if that came across another way.

    We are not talking about the same issue. The issue of how we give to the poor and the government’s role is entirely another matter. That’s for another day and another conversation.

    My comments here are about the public debate, not the government’s role. As a democracy, we all are invited to the table for discussion. For democracy to thrive, we all must be able to have a voice – and ideally, an equal voice. If one group is advantaged over another, then that becomes problematic because democracy is based on persuasion. There are millions of people — at least 50 million plus — in our country who want health care reform, for example, but those people are the exact people who have less resources to run ads and hire PR agencies to get across their viewpoints. We should find ways to ensure that they do at least have an opportunity to speak and be heard, and this opinion yesterday makes that more and more difficult. That’s my only point.

  8. Chris Beasley says:

    The statement that stuck in my craw as we say down South was in your David and Goliath paragraph but is missing now, “People who are instructed to love the poor ought to care more – in my opinion. 🙂 ” That’s what kind of set me off. Thanks for apologizing.

    In the interest of not looking like that “tea bagging conservative”, I should concede this point now.

  9. Kole says:

    Well, I learn something everyday. I was under the opinion that churches could not even speak on policy. I guess that being the case, if you speak out on a policy, most people would be able to take 2+2 and make 4. As far as the Middle Ages, yes, the Catholic church played a large role in politics. That is when I see it being a problem. When churches become part of the political process and not just talking about the issues. But as I said, I was wrong in my thinking. Had I known that it wouldn’t have been an issue with me. The reason I think people still have an equal voice is because I believe in capitalisim. We are the consumer. In effect, they work for us. If you do not like a companies political position, don’t buy their product. That seems real simple to me and I assure you they would get the message. I didn’t mean to call a company a person and I wouldn’t do that. I just meant they are private and should be able to play the game like other people in the private sector. My love for capitalisim goes hand in hand with the protection and love of the private sector. That is also where most of my criticisim of the government comes from. The invasion (Rep and Dem) it has launched on the private sector.

  10. Barb says:

    Just a thought….if the government wants to decide how much of the profit of a corporation they are going to take (taxes)and fuss about how much they do or don’t compensate people (minimum wage and salary caps) and make laws to enforce their position on pay, benefits, workplace conditions, etc….it seems they corporation should have the same right as an individual to decide what to do with the rest of their money (if any remains). 😉

  11. toddbouldin says:

    Barb, we completely agree on that point, and maybe I should clarify my thoughts. My concern is not that a corporation has a right to speak about its positions, or even against or for candidates … my concern is that it now has an unregulated, unlimited ability to do so. No individual in our country has that right because we are bound by federal spending limits of $4,600 per election. Corporations ALREADY could give $10,000 before this opinion through their PACs. Now, they can spend an unregulated amount.

    All I’m asking for is to admit that this is not equal. As for me, and I sure hope most of my Christian friends, that is a severe moral issue that deserves our greatest consideration and opposition. I’m for an “equal” playing field, but this is far from equal.

  12. toddbouldin says:

    From my friend Kent Rhodes:

    Thank you for this, dear Todd. I so much agree with you and Amos! I too have been thinking about the supreme court’s split decision, wondering where the wisdom in it lies? How does this support the pure notion or practice a representative democratic republic that is of the people, by the people and for the people? How does it make our voice stronger? How can it possibly augment the voice of the poor and needy among us?

    Let me be clear: I am very pro business. But in fact, I fear that while this decision augments the political voice of corporations, it at the same time dramatically limits my voice. I can’t compete with the special self interests of corporations because I’m just one individual with one voice (and very limited funds). If this is what it does to the wealthy and comfortable, then how much greater is the damage done to the voice of the poor and needy?

    Corporations in this country have always had free speech – they have never been gagged. But their influence or voice can never really be for the common good of society – nor should it be – because no company exists to “sell” that. They are not designed to be political, government entities – nor should they be. They exist to create and distribute goods, services and wealth. … See More

    Their newfound, unfettered ability to push private agendas certainly doesn’t gag me and certainly, I may even agree with their agendas from time to time. But it cannot possibly augment the voice of the people or my own voice. I fear it will inevitably lead people to conclusions about issues and their votes that may not in reality be in their own self interest or the interest of their neighbors. It isn’t corporations’ need to be heard that is now at issue: It is the overpowering influence on our thinking and voting through vast funding of self-serving ideas that will require a whole new level of discernment on the part of regular folks and I fear most of us don’t have the energy, resource – or in some cases – interest to complete this level of due diligence for everything they hear and see coming out of a heavily funded campaign for individuals, policies or laws.

    This can’t end well: Corporations will grow in their influence of government and over regular people for political gains and if we’re lucky some of that will be good for some of the people living in this country. But if it isn’t, then the inevitable backlash against business will be great and severe, which will be an even greater blow to our democracy.

    I have routinely rolled my eyes at all the recent comparisons to Ayn Rand’s “Atlas Shrugged” to our current situation of “government’s takeover of private businesses”. But this new court decision makes her upside down scenario much more of a possibility in the future.

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