Supreme Court Favors Free Speech

That title should illustrate the interesting types of headlines that have heralded the Supreme Court decision permitting advocacy ads by corporations and presumably unions in the time leading up to an election.

The one from CNN reads Supreme Court eases ban on business, labor political spending, which is fairly calm and tells us approximately what the Supreme Court did. (I intentionally slanted my headline.) MSNBC.com, on the other hand, reads Supreme Court rolls back campaign cash limits, which implies action somewhat broader than the Supreme Court actually took.

I welcome this court decision. I have never been able to understand how either public financing of campaigns or restrictions of what people can say around an election can be squared with free speech. It seems to me that the first amendment to our constitution has taken a beating in the area of campaign finance.

I do understand the claim that corporations do not have the same free speech rights as individuals, yet at the same time it seems to me that freedom of association should cover that with regard to corporations or to unions.

I think this is also an area in which we should carefully measure results. Campaign finance regulations have a tendency to make criminals out of people who are otherwise trying to obey the law because they are often difficult to interpret. If the other guy interprets them more broadly than you do, you are at a disadvantage. If you interpret them too broadly, you can end up going to jail.

What I think many people fail to realize is that large government bureaucracies don’t control the tendency of large corporations to overstep their bounds. Rather, they tend to end up with people from the industry regulating their friends in the industry. Thus “regulatory failures” should not be surprising in the case of banks or investment firms. The people who regulate them are largely tightly connected to the people who work in them.

The same is true in the case of campaign finance. The current major parties select those who wind up on the Federal Election Commission, and the people in power create laws that work best for the large parties, making it difficult for minor parties or independent candidates. Today on TV I heard a commentator hit the nail on the head. (I wish I could remember her name.) She said that this decision had a good chance to drastically weaken the power of the two major parties.

While that may frighten folks in Washington, I think it would be a great thing for the country. It will fit well also with the information age and particularly social media. I don’t think it will make as much difference as some of the pundits are saying, but it will surely make it possible for many more players to influence politics, and to do it openly.

Update (1/22/2010):

Allan Bevere links to my post, and there is a good discussion going at his blog, though it is largely populated by folks on the other side. The link to the opposed viewpoint he provides is at The Country Parson.

Two more useful links:

  1. The Volokh Conspiracy with a short summary of the meaning of the decision
  2. Dispatches from the Culture Wars
    Key quote: “The standard reaction seems to be: “Oh my god, corporations can now spend tons of money to influence the outcome of elections.” But I’ve got news for you: They already do that. They always have. And the campaign finance laws did not prevent it.”

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  1. Henry,

    I linked your post to my blog with a post from another blogging friend with a different take on yesterday’s decision.

    Please check it out.

  2. Greetings Henry,
    Well, I am obviously the other side of the matter. However, I will confess that there is one golden lining to this decision, one that may be more important to economic recovery than any stimulus package. Come this fall the advertising and media industries will rake it in, and that is bound to have a significant multiplier effect among their various suppliers and customers. As for me, I have never seen free speech as extending to artificial persons such as corporations. I cannot understand how a corporation falls under the protection of those who desire to assemble to petition their government. The court sees it differently, and for some reason they never asked for my opinion. So there you go. What can I do? I think I’ll go to Maui and goof off for a couple of weeks and see if the world can survive without the benefit of my wisdom.

  3. RBH says:

    The question I haven’t seen raised (except by me) is whether, since corporations and unions are now treated as persons under the First Amendment, will they also be treated as persons under the Second Amendment and be permitted corporately to keep and bear arms?

    1. I think it’s a good question, but my answer would be that corporations already do that, so I suspect that whatever second amendment rights are granted to persons would generally be applicable to corporations, for example in arming guards for their facilities.

      I’m not as extreme generally on the second amendment as on the first, because I think the opening clause tends to weaken some modern arguments in favor of ownership of just any type of weapon. And no, private militias don’t work there in my view.

      Note that I make my arguments politically rather than purely legally. I do not in any way resemble a legal scholar.

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