Friday, January 22, 2010

Supreme Court Campaign Finance Decision: A Dangerous Precedent and a Dumb Decision

I strongly disagree with the recent Supreme Court decision declaring it unconstitutional to limit corporate and union spending on advertising for candidates in elections.
The stated rationale generally revolved around the idea that such restrictions violate the organizations' first amendment rights, and amount to censorship. (I don't know if the Supreme Court is using the first amendment argument - much of the media is - but it definitely used the censorship argument).
I'll take the first amendment issue first, and then deal with the censorship issue.
First Amendment argument:
The first amendment argument is complete and utter nonsense, because corporations and unions do not have first amendment rights. Every individual in this country, as a human being, is covered by the first amendment. Organizations in general, however, are not individuals.
Additionally, corporations are most intrinsically a tax entity, and a mechanism for distributing the profits of a business endeavor among the people responsible for the labor and debt/equity capital that spawned the endeavor. Corporations fundamentally represent their employees, debtholders and equityholders. Thus, corporate spending is actually involuntary spending by the employees and capital stakeholders of a company. Involuntary pronouncements can hardly be called 'free speech'. Thus, a corporation cannot have an opinion.
What about management, you say? Management is composed of people, and those people are allowed to have opinions and are allowed to state them. One could even argue that by contracting with a company as an employee or capital stakeholder, you are empowering them to use your money to distribute their opinions if doing so will be beneficial to the organization you're contracting with, and you, by extension. However, there are two points. Firstly, nowhere in the definition of a corporation or in any sort of corporate law is this stated - it's a philosophical case that has no bearing in a courtroom - which means that the message of a corporation must be treated as being from the corporation, not the individual, if the corporation pays for it. This is an entirely reasonable default case - whoever pays for a message is the one responsible for it. Secondly, this is a dangerous argument in application, because it is very difficult to determine what messages by corporations are actually profit maximizing observations by executives and what messages are the opinion of management, distributed at the expense of labor and capital stakeholders.
Unions, similarly, are intrinsically a negotiating unit. They, too, have no constitutional rights, they are merely a way for labor to bargain for better working conditions. Thus, they can be viewed in a similar light to corporations.
Censorship argument:
The censorship issue is slightly more nuanced, but still wrong. Censorship is the act of one group or individual forbidding another set of individuals from seeing certain material or making certain material available to be seen. Active distribution is not part of censorship. Forbidding a corporation or union from spending on advertising for a candidate is not forbidding anybody in the organization from having an opinion and doesn't forbid anyone from making it freely available. It doesn't even forbid the organization as an entity from having an opinion or from making it available. It merely forbids them from trying to force it upon others via active distribution. The same applies for telemarketers - the only rights involved with censorship are that a telemarketer must be allowed to make the information available if I want it, and I must be allowed to see the information a telemarketer makes available. They don't have the constitutional right to force me to take that information. Maybe it's legal to advertise and maybe it's not, in which case they should follow the law, but if Congress decided to pass a law forbidding telemarketing, it wouldn't be unconstitutional. McCain-Feingold earlier this decade did exactly this for campaign finance, and thus it should not be unconstitutional either.
In other words, censorship is the act of forbidding the consumption of information, or the act of forbidding information from being made available for consumption. The key is that the right to transact in information is mutually-agreed-upon, and the act of getting the information comes from the consumer side. The consumer has the right to demand available information and the informer has the right to make information available to consumers who demand it. This doesn't work in pseudoreverse, where the informer has the right to force information upon a consumer if the informer wishes to supply it, whether or not the consumer demands it.
For example, if I'm a company and I put a letter from the chairman on my website, or a video advertisement on my website, that is now available for consumption to anyone, and nobody should be forbidden from seeing it. Arguing that the corporation should be able to spend a million dollars for a list of email addresses to send their material to is absolutely no longer in the area of free speech and squarely in the area of active corporate advertising. Thus, it should be treated as such and the constitutional grounds for the ruling don't apply.
To be clear, I'm talking about whether forbidding advertising constitutes censorship, not actively arguing that advertising should be forbidden. I'm not in favor of forbidding organizational advertising - organizational advertising is societally helpful in many cases. How else would I know about the sale going on at Macy's, or the new flavor of Coke, or a new medicine that can help a condition I have? However, arguing that all organizations have the right to advertise anything they want doesn't hold true - if some forms of advertising are deemed to be harmful, then they can and should be prevented. Campaign spending is a form of advertising that has the potential for significant adverse effects on the impartiality of Congress and the fairness of our elections. Thus, it can be prevented without being "censorship", as long as the corporation is allowed to make its information available to anyone who wants to see it.


  1. "(I don't know if the Supreme Court is using the first amendment argument - much of the media is - but it definitely used the censorship argument)"

    I think you have got this completely backwards.

    1. Of course the Supreme Court is using the First Amendment argument! The majority opinion is that McCain-Feingold violates the First Amendment. The dissenting opinion is that it does not.

    2. Whether or not this constitutes censorship is largely irrelevant for the Supreme Court. There is nothing in the Constitution about censors or censorship.

    (I personally consider the legislation - government criminalization of certain types of political speech - to be censorship. But censorship is just a word, not a Constitutional standard, so all this means is that we hold different definitions of a polysemous English word in our head.)

  2. Hey Jian - the "censorship" reference is prominently featured in the dissenting opinion (Stevens, I believe) - that's where that's from.

    Someone raised the valid argument that a corporation has a right to due process, which means that it does have rights beyond taxes. I still don't see how this relates to the right of free speech, but anyway.