It's Not About Free Speech 2

[Keith: A timely essay on a major issue. Questions of this type are an illustration of why the critique of state-capitalism as a system of big business/big government alliance is essential, and why we need Carson’s critique of “vulgar libertarianism.”]

by Jeremy Weiland

On Thursday, the Supreme Court struck down several key restrictions on corporate campaign contributions. While many lament the expected influx of yet more corporate cash into an already compliant political system, does anybody really think McCain-Feingold had accomplished much of an improvement? These regulations only affect those who cannot afford the lawyers, accountants, and other professionals who spend their careers finding ways to circumvent the spirit of the laws.

There are two key elements to the court’s conclusion: the constitutional prohibition of free speech restrictions and the status of the corporation as a person. Libertarians should not complain about the court’s conclusions with respect to the first element. The government must abstain from interfering with any person’s political contributions, monetary or polemical.

In the past the court has seen fit to abridge first amendment rights in cases where the government has a compelling interest. Campaign finance laws have usually rested on this basis, relying on the court’s acknowledgement of the need for balancing a variety of interests. In throwing out McCain-Feingold, the Supreme Court can be seen as effectively reining in these deviations from the letter of the law. A strictly defined freedom of speech should certainly be defended.

But as Glenn Greenwald notes in his excellent commentary on the issue, the justices approached the case solely from the perspective of first amendment applicability and scope. No justice, dissenting or otherwise, objected to the premise that corporations are persons with constitutional protections. The focus remained fixed on narrow questions of money as a form of free speech as well as the proper applicability of free speech to the corporate campaign contributions. The nature of the activity was examined; the nature of the actor, neglected.

The real issue here is not whether corporations should be involved in the political process. It’s also not whether they should have first amendment protections. Regarding monetary contributions from anybody to any candidate for public office as free speech is entirely beside the point. The most important and pressing matter is whether these artificial persons called corporations can speak; whether legal fictions can spend money. It’s whether the Constitution protects what doesn’t actually exist.

The court simply let stand the fantastic notion that an abstraction composed of contracts and assets, a figment that can do or say nothing without human beings doing for it, can engage in anything qua a corporation. As such, an opportunity to overturn a century of erroneous precedent was squandered. Once again, in spite of an improvement in the consistency of its approach to the narrow free speech issue, the court preserved a much more fundamental complexity. The ruling and dissent reflect a labored reasoning stemming from unquestioned premises.

What do we mean when we say a corporation can donate money to campaigns freely? Do we mean that its officers do so on behalf of the shareholders or partners? If so, can’t we talk about free speech in terms of those individuals’ rights and responsibilities? Do we mean that this agreement between stakeholders has some sort of capacity for life, liberty, and the pursuit of happiness that justifies every other limit on governmental power? All these questions and more beg for a real legal analysis. They were ignored precisely because they expose an inconsistency, the underbelly of the elite consensus.

Corporate personhood necessitates muddled, sloppy balancing acts by the court. And in complicated rulings, the rich and powerful have the same legal upper hand they had when McCain-Feingold stood: they can afford the expenses required to make sense of the precedent and twist it in their own favor. To ask whether corporations even have free speech rights would be too profound and simple a question to preserve the advantage of the powers that be. We little folk might recognize what is at stake were the matter made so plain.

Of course we should not water down the first amendment just to punish corporations. What we should do is challenge the status of the corporation as a person. The majority’s impulse to streamline the interpretation of the first amendment is fine, but they passed on the real case.

Written by Jeremy Weiland on Saturday, January 23, 2010 for Social Memory Complex

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