Is Spending Speech?

West face of the United States Supreme Court b...

Image via Wikipedia

A while back the Supreme Court of the United States ruled that campaign finance spending limits violates free speech. This ruling seems to rest on two key assumptions. The first is that corporations are persons and are thus entitled to free speech. The second is that spending is a form of free speech and that it should not be limited.

In regards to corporations being persons in regards to free speech, this would seem (as I have argued elsewhere) to entail that they must be treated as persons across the board. This, as I have argued, would seem to lead to absurdities that thus expose the absurdity of treating them as persons in this regard. Naturally, there can be good reasons for allowing collective rights-but these do not require that the entity be regarded as a person but merely as a collection of people.

Also, there is the obvious concern that granting corporations rights is unfair because it gives groups an extra advantage over an equal number of unincorporated individuals. For example, if a corporation has 500 members, they can make 500 contributions to a candidate and also another contribution as the corporation. 500 individuals can make 500 contributions, but they do not get that extra corporate contribution. To use an analogy, imagine a store is having a special in which each person gets a free item (like a small ice cream cone). If three individuals go to the store, they each get the item. But, if there are three people who form a corporation, they would get three items plus a fourth for the corporate person. That seems rather unfair. As such, taking corporations as people seems to be a system of miraculous multiplication-it creates extra super-people out of a collection of normal people. This seems both questionable and unfair.

In regards to spending being free speech, that seems slightly dubious. Suppose that spending money for political purposes is considered speech. Now, it is clearly acceptable to try to persuade a politician by speaking to him or her. If spending is speech, then I should be able to try to persuade  politicians by speaking to them with money. However, this sort of thing already has a name, specifically bribery. But, if spending is a form of free speech, it would seem that bribery should be acceptable as a form of free speech. This seems absurd, to say the least.

It might be countered that the contributions cannot be direct bribes in that there can be no direct giving of money in return for specific actions or promises to act. However, it would be extremely naive to believe that campaign financing is not intended to do just that-namely to influence behavior by providing money and support.

However, suppose that spending is taken as a form of speech and thus protected by the right of free expression. It does not, of course, follow that such speech should be free of limits. After all, limits are justly placed on speech in other cases. The stock example is the yelling of “fire” in a crowded theater in which there is no fire. In the case of unlimited spending by corporations, this does serious harm to the political process by increasing the influence of corporations far beyond the number of people who make them up and thus proportionally decreasing the influence of those who are not in control of corporations. To use an analogy, it is on par with having a public discussion in which the people controlling corporations are allowed to use sound systems up on the stage and individuals are expected to try to shout out their views  from the crowd.

As might be imagined, I believe that it is a mistake to allow corporations such unlimited spending.

Enhanced by Zemanta
Leave a comment ?

34 Comments.

  1. s. wallerstein (amos)

    “Money talks”, they say.

    The U.S. Supreme Court just ratifies that gem of popular wisdom.

    There’s another saying: “who pays the piper, calls the tune”.

    Still another, in Spanish: “poderoso caballero es Don Dinero”.

  2. …money doesn’t talk, it swears…

  3. 1. The case, Citizens United v. FEC, did not address the money = speech question. This has long been resolved, since communicating on a national level requires the expenditure of money. There is certainly a problem of distortion and the risk of undermining democratic integrity, but these are issues that must be weighed against the value of protecting speech from legislative intervention. It’s certainly speech, but under some circumstances it perhaps ought not be protected speech.

    2. Groups of people incorporated for some purpose have long been considered legal persons. For instance, I do not have a contract with my department chair; I have a contract with my university. The university has to have some rights or else it couldn’t enforce its contract with me. (The first corporate personhood case involved Dartmouth College, back when it was still a College.) The University does indeed get an extra ice cream cone.

    3. Consider the risk of other kinds of intervention to prevent drowning out the voices of others: should we restrict the endorsements of beautiful, famous, or smart people? They’re effectively shouting compared to most folks, and those endorsements have real economic value.

    4. What about other politicians? Barack Obama seems to have traded the Secretary of State’s job for Hillary Clinton’s endorsement: was that corrupt?

    5. What about newspaper editorial boards? They even spend money to print their endorsements!

    6. Or what about documentary film makers? The case in question began when Citizens United challenged Moore’s Fahrenheit 911. In response, they produced Hillary: The Movie. Are either of those speech? Should they be protected from legislative restrictions on their distribution?

    7. Even before this decision, corporations found plenty of ways to have an outsized impact on elections. Money is fungible and those who have it find ways of making it work for them. Public financing for elections is a much better way to reduce the distortions created by income and wealth inequalities. Bonus: it doesn’t involve the criminalization of political speech, which is a pretty bright line violation of rights in the US.

  4. s. wallerstein (amos)

    Joshua Miller:

    Whether Obama made a deal with Hillary Clinton is neither here nor there since the issue is not whether people should bargain or negotiate in politics, but the excessive power of corporate money in politics.

    Your point 7 is worth considering, since, as you say, corporate money will find a way to buy politicians, to support candidates who are favorable to corporate interests and to influence legislation, whether or not it is legally considered as “free expression” or not.

    There is not much point having laws that will have no effect on society, and probably, the best way to counter excessive corporate influence is, rather than laws that are not observed or enforced, political education of voters about how big business and big corporations have too much power and use that power in ways that lower the quality of life and the possibility of flourishing of the rest of us.

  5. S. Wallerstein writes: “the issue is not whether people should bargain or negotiate in politics, but the excessive power of corporate money in politics.”

    I don’t think I agree. Why should we be more worried about Walmart than the Koch brothers? Citizens United had nothing to do with rich individuals, only rich groups, specifically corporations and unions. The whole point to the corporate form is to do something together that we can’t do separately: is really fair that Bill Gates has fewer restrictions than the United Auto Workers?

    Labossiere uses an analogy for his argument that suggests that it’s not just corporate power but all sorts of concentrated inequality that ought to bother us: “it is on par with having a public discussion in which the people controlling corporations are allowed to use sound systems up on the stage and individuals are expected to try to shout out their views from the crowd.”

    Corporate executives aren’t the only powerful people “using the sound system” to drown out the views of ordinary citizens. Why worry more about them than the outsized influence of Ivy League graduates, lawyers, beautiful people, or celebrities? These are all sources of power in a democracy that allow some to have an unearned amplification of voice compared to others.

  6. >1. The case, Citizens United v. FEC, did not address the money = speech question. This has long been resolved, since communicating on a national level requires the expenditure of money. There is certainly a problem of distortion and the risk of undermining democratic integrity, but these are issues that must be weighed against the value of protecting speech from legislative intervention. It’s certainly speech, but under some circumstances it perhaps ought not be protected speech.2. Groups of people incorporated for some purpose have long been considered legal persons. For instance, I do not have a contract with my department chair; I have a contract with my university. The university has to have some rights or else it couldn’t enforce its contract with me. (The first corporate personhood case involved Dartmouth College, back when it was still a College.) The University does indeed get an extra ice cream cone.<

    True, that is a matter of tradition (but tradition is not proof).

    3. Consider the risk of other kinds of intervention to prevent drowning out the voices of others: should we restrict the endorsements of beautiful, famous, or smart people? They’re effectively shouting compared to most folks, and those endorsements have real economic value.<

    Excellent question.

    4. What about other politicians? Barack Obama seems to have traded the Secretary of State’s job for Hillary Clinton’s endorsement: was that corrupt?<

    Yes, I would say so.

    5. What about newspaper editorial boards? They even spend money to print their endorsements!<

    They do indeed.

    6. Or what about documentary film makers? The case in question began when Citizens United challenged Moore’s Fahrenheit 911. In response, they produced Hillary: The Movie. Are either of those speech? Should they be protected from legislative restrictions on their distribution?<

    Those are speech, but they can also be seen as political advertisements. As such, there can be grounds for considering limitations on the way they are funded. This does, of course, spread oil on the slope and create a danger of a gradual erosion of free speech from this starting point. However, there do seem to be good reasons to limit spending.

    7. Even before this decision, corporations found plenty of ways to have an outsized impact on elections. Money is fungible and those who have it find ways of making it work for them. Public financing for elections is a much better way to reduce the distortions created by income and wealth inequalities. Bonus: it doesn’t involve the criminalization of political speech, which is a pretty bright line violation of rights in the US.

  7. s. wallerstein (amos)

    Joshua:

    Mike’s post is about corporate funding of politics.

    There are, as you point out, other groups that have undue influence in politics.

    What I said in the rest of my post, which you did not address,
    about political education, rather than restrictions on funding that will not be enforced, being the key to recuperating the voice of the ordinary citizen in politics goes for dealing with the excessive influence of other groups and individuals which you mention.

  8. Mike: Tradition is not proof, but let’s not discount it simply because it is traditional. In general I think you have to bite a lot of bullets to think that restrictions on speech are better than efforts to level the playing field. You appear willing to do that, but I don’t think you should.

    Amos: I doubt that political education will successfully combat the influence of political advertising for much the same reason that I doubt that health and nutrition education fails to combat the effects of fast food advertising. In these matters, we tend to judge with our gut and make up justifications afterwards, so advertisers appeal to your guts and bypass your education. Look at the literature on political expertise and motivated skepticism/reasoning.

  9. Sorry: “for much the same reason that I doubt that health and nutrition education SUCCESSFULLY combats the effects of fast food advertising”

  10. s. wallerstein (amos)

    Hello Joshua:

    Political education is a long-term project. I don’t see how without a politcally literate electorate, you can hope to combat interest groups or powerful people which or who manipulate public opinion to order to secure more than their “fair” share of the goods and of decision-making power.

    Your own point 7 implies that putting restrictions on the role of money in politics will not work, because money, as you say, is fungible and very creative.

    So since it is almost impossible to keep money from buying power in society (in a free society), we have to educate people about that.

    By the way, your assumption that there may be something corrupt about Obama offering Clinton a cabinet position in return for support is based on a very U.S. centered view of politics.

    In any country with more than two major parties, in which the candidate or newly elected president or primer minister, has to form a coalition government, it is expected that that candidate or newly elected political figure offer cabinet posts to people from other parties in exchange for support.

    That happens in Israel and in the U.K., with a parliamentary system and it happens under a presidential system in Chile (where I live), where there are 9 parties with congressional representation, not to mention a few independent congresspeople.

  11. We’ve got to stop thinking in our rubbishy habitual ways.

    Not everything that can be understood as an “agent” is a “person”. Not every moral “ought” involves some sort of entitlement to “property” that is “owned” by a “person”.

    Every opinion, however offensive — or expressed by a “corporation” — must be capable of being heard. Period.

  12. except that you should buy cigarettes

  13. Amos: Just one correction. I do not assume that there is anything corrupt about the Obama/Clinton deal. This is indeed how politics works. Mike, however, claims that it is corrupt, which is consistent with what he is saying: Clinton’s endorsement is worth the Secretary of State job. It has value and impact, and thus it indicates that she has a louder voice than other citizens, just as corporations and rich individuals do.

    I really don’t think that you should hold out hope for political education. I think skepticism is warranted. This is the same thing that the Progressives in the 1920s hoped would overcome their elites. It didn’t work then, which suggests it won’t work now or in the future. Politicizing education just adds one more tool which elites will try to use to achieve outsized influence on democratic outcomes. Just look at current debates about history and science curricula in Texas to see how this works out in practice.

  14. Dennis Sceviour

    Political campaign contributions (in America) are tax deductible. This means that a person, or corporation, can direct their tax flow to a political party rather than to the general tax pool. Money that goes to a campaign contribution stays in a political agenda without interference or debate from outside political parties. This appears to be an initial motivation for making a political campaign contribution.

    Mike addresses a specific issue about campaign contributions and corruption. He writes “It might be countered that the contributions cannot be direct bribes in that there can be no direct giving of money in return for specific actions or promises to act. However, it would be extremely naive to believe that campaign financing is not intended to do just that-namely to influence behavior by providing money and support.”

    I can add, the judiciary sometimes addresses the issue of “speech spending” by encouraging a campaign contributor (or collector) of sufficient value to request legislation favouring someone or something. Importantly, this is not the motivation for making a campaign contribution, but rather this is the result.

    However, laws and legislation only function to extent that a people can find a way of obeying its letter, while evading its intent. If this seems corrupt and pointless, I agree. The answer to stop the futility is to get rid of the taxes which started it all. But, that would be too simple.

  15. Dennis writes: “Political campaign contributions (in America) are tax deductible.”

    This is false. See here: http://www.irs.gov/pub/irs-tege/eotopicb95.pdf

    Individual contributions to groups like Citizens United (i.e. 501(c) (4) groups) are also taxed, although the IRS is reconsidering this rule as of July. In principle, lobbying activities are taxed but some 501c4 groups don’t engage in lobbying so the IRS is considering a rule change to distinguish a group like Citizens United from, for instance, a volunteer fire department. See here: http://www.irs.gov/charities/nonprofits/article/0,,id=156411,00.html

  16. s. wallerstein (amos)

    Joshua:

    Actually, I’m fairly skeptical about how effective political education can be myself. But it’s worthy trying, because otherwise politics becomes another form of marketing.

    I thought that Hillary Clinton’s support was important to Obama, not because her voice is worth more than that of anyone else, but because she represents a political sensibility, a faction of the Democratic Party, an ideological tendency within the Democratic Party, etc.

    Thus, the reasoning goes that people who feel represented by Hillary would tend to vote for Obama, not because they feel that Hillary is some kind of political ubermensch but because her presence in Obama’s campaign and later, in his cabinet, ensures that their point of view gets a voice within Obama’s campaign and then, in his administration.

    We both live in a representative, not participatory, democracies after all.

    It is very common in many countries for the president to name someone who comes from another faction of his party or from another party to his cabinet so that people who feel represented or interpreted by that person support his or her government.

    Or are you criticizing representative democracy?

  17. Amos: I’m not sure I can say this any clearer. I support the Obama/Clinton deal, for most of the reasons you just suggested.(Although I don’t believe that Clinton’s participation in the administration is actually representative of her supporters in the sense you imply. Take a look at Schumpeter’s criticisms of democratic representation.) Mike is the one you should direct your comments to: he is the one that holds that Clinton’s outsized influence is corrupting or distortionary.

  18. Dennis Sceviour

    Re: Posted by Joshua A. Miller | December 3, 2011, 3:00 pm
    “This is false.”

    I object to your conclusion. Perhaps I should have included the adjective “indirect” political campaign contributions. I am glad you are keeping abreast of the fine print in the legislation, but my main theory remains intact. Loopholes abound as people will redirect their tax deductions to charities or other names that can directly influence political agendas. No legislation can blanket out previous campaign contribution deductions. It would be a self-defeating purpose.

    May I quote from your recommended article:
    “B. DISALLOWANCE OF A DEDUCTION UNDER IRC 162 FOR LOBBYING EXPENSES … IRC 162(e). IRC 162(e) allowed business taxpayers to deduct expenses incurred in directly lobbying legislators with respect to legislation of direct interest to the taxpayer.”

    or further,

    “The Clinton proposal was enacted in section 13222 of OBRA 1993, 107 Stat. 477″ which allows direct legislative lobbying expenses at the local, but not state or Federal level.

  19. I’m sorry Dennis, but you’re misreading the documents I shared. 162(e) was eliminated in 1993 this deduction is now disallowed.

    While it’s true that you can deduct money spent on local lobbying efforts, this does not apply to direct campaign contributions at the local level, and in any case the major concern in the US is state and federal elections, where almost $4 billion dollars were spent in 2010. Neither direct nor indirect lobbying and campaign contributions are tax deductible at the national level .

  20. Joshua,

    You are quite right-tradition does not count for or against something being correct. Also, I would contend that the functions of corporations do not actually require that they be persons. After all, I could have a contract with my university as a contract between me and a legal entity. Claiming that the university is a person does not seem to be necessary-merely specifying the nature of the contract and the legalities would seem to suffice. After all, I have a legal relation with my house without my house being a person. Same for my published writings.

  21. Jeremy,

    I am fine with people talking, I just do not believe that corporation speak-rather people do so who happen to be playing a role in a serious legal game. To use an analogy, think of the priests of old who claimed to speak for the person Zeus or Ra or whoever. They are speaking, it is true, but they are speaking on “behalf” of a fiction.

  22. Joshua,
    I’m willing to accept a degree of corruption in the machine as part of its necessary lubrication. :)

    I’m also willing to accept that deal cutting can be morally acceptable. Perhaps Obama and Clinton cut the deal for morally good reasons-for the good of the people, as opposed to a deal aimed primarily at an advantage for each.

    In any case, Clinton has done well in her job and I believe that Obama has done well in the face of exceptional adversity. We could, at the very least, have done much worse.

  23. Dennis Sceviour

    Mike,
    I am not clear what you mean by a degree of corruption, and deal cutting. Could you add some definitions and examples? For what amount would you allow a student to bribe you to alter his grades?

  24. Mike writes: “I have a legal relation with my house without my house being a person. Same for my published writings.”

    There’s obviously a difference between your relationship with your house and your relationship with your employer.

    Reasonable people believe that corporations ought to be limited persons or second-class persons for a variety of reasons tied to their distortionary effects on the political process. I disagree, but mostly on practical grounds: there are strong arguments in opposition and this is really an empirical and pragmatic question.

    In contrast, anti-personhood arguments are a massive overreach. Here’s why: legal personhood for corporations is necessary because it supplies a bundle of rights that your house and your books simply don’t have:

    1. The right to sign binding contracts.
    2. The right to enforce contracts, to sue and be sued.
    3. The right to own property.
    4. The right to hire employees.
    5. The right to self-governance according to rules and by-laws.

    These are rights that every person has and all non-persons lack. It’s certainly possible to organize society without legal personhood for corporations, but it’s not directly relevant to the question of outsized influence. You’re throwing out quite a number of babies with the bathwater. Even the dissent in this case thought the anti-personhood arguments were absurd.

    List and Pettit have a good book on Group Agency this year if this is something you’d like to research this issue further.

  25. Joshua,

    What seems to be the easy and obvious solution is to simply assign those 5 rights to the legal entity in question without saying that the entity is a person. Now, if the plan is to have a legal person be a special sort of entity that is not an actual person but has these rights, then that would be a matter of mere semantics (of course, Hume argues that all personal identity is a matter of semantics-so on a Humean view I suppose that a corporation could have as much claim to being a person as a human).

    I tend to take the view that seeing entities like corporations or states as people as classic examples of the fallacy of reification/hypostation. Of course, this could be a mere bias on my part instilled by my dislike of the fascist conception of the state (which infects my view of all alleged collective identities).

    Some years back, Leonard Harris expressed friendly and wise dismay at my seemingly deranged individualism. I was just a young philosophical pup back then, but I could recognize that he did make some very reasonable points. I’m still sticking with my views, though. :)

  26. Dennis,

    Excellent questions. I would say that political and social systems seem to somehow require activity that occurs outside of what is actually specified as correct or clearly legal. For example, lobbyists provide incentives for politicians to vote certain ways and this would seem to be bribery. However, it has been argued that this is part of the democratic process in that people try to persuade officials to vote certain ways. In terms of deal making, politicians routinely cut deals-“you vote for the defense contract for my state and I’ll support the funding for your bridge product” in order to get things done-even though what they should do is what is for the good of the people even when they do not get an additional reward for themselves.

    Interestingly, there have been two almost attempts to bribe me in my teaching career (both in ethics classes and in the same semester) so I can answer that question from experience. The answer is that I cannot be bought. This is not because I am worried about getting caught, but because of my ethics and my sense of honor and integrity. When I was a young student, I was accused of being morally uncompromising and that seems to have stuck (at least in certain areas).

    My view is, of course, that people should always do what is right and good for the sake of the right and good. However, people are morally flawed and morally weak so the most we can expect is that people do their best to be their best.

  27. Re: Posted by Mike LaBossiere | December 4, 2011, 8:47 pm
    “The answer is that I cannot be bought.”
    Not even by a blonde offering a lubricated laptop dance? :)
    (Reese Witherspoon was supposed to have done that in the movie “Legally Blonde”)

    As to the comment that politics “require activity that occurs outside of what is actually specified as correct…” I am not satisfied this double standard is either appropriate, or what the electorate expects from it elected members.

  28. “the easy and obvious solution is to simply assign those 5 rights to the legal entity in question”

    In American jurisprudence, such an entity is called a “person,” from the Latin “personāre” the mask through which an actor speaks. A corporation is a particular kind of mask through which human beings speak and act.

    If you would prefer to call it a “gavagai,” I’m sure no one will mind, but they also won’t know what you’re talking about (unless Quine is wrong about ostention!)

  29. Dennis,

    Not even by a blonde. :) I am, of course, full of flaws-but the things I value tend to be things that could not be given to me in the context of a bribe. I do admit, however, that if I was offered a secret training method that would allow me to fairly run a sub 17 5K again, I would be very tempted. :)

    I agree-the double standard is not appropriate and the electorate should expect better.

  30. Joshua,

    I would, I suppose, be fine with corporations being legal entities that get called “person”, but I am mainly concerned that this status is misused to give the actual people who own and run the corporations even more power and influence.

    They should call corporations “gavagai”-I would love to see a sound bite in which Mitt says “gavagi are people, too!” :)

  31. This is probably a bit cold by now, but I have been on holiday…

    “Groups of people incorporated for some purpose have long been considered legal persons.”

    Not exactly. They are legal entities, but that doesn’t necessarily mean person. Since corporations are non-corporeal when they kill or steal they get fined rather than sent to prison. Rich people don’t have that option.

    One final thing, shouting “Fire!” in a theatre is perfectly legal, regardless of the presence of burning material. If the resultant evacuation causes death then the theatre is negligent in not having an adequate evacuation procedure. The theatre should have the ability to ban the shouter for it but there is absolutely no reason for the state to get involved. This is one of my bugbears regarding free speech.

  32. Keddaw,

    Even if it is legal to do that, I would say that it would be wrong on the grounds of 1) deception and 2) potential harm. I think the law might have a stake in the matter if people did get hurt in the panic, but you are right to note that the theater should be able to handle such a situation. After all, they should be able to handle a real fire as well.

  33. 1. Deception. When there is ni physical or financial gain (or loss) then what business is it of the state? Should all comedians be locked up? Magicians? Psychics (OK, maybe they should!)

    2. Potential harm. No! If the theatre isn’t safe to evacuate it’s the theatre owner’s fault, not the idiot shouting fire. If there’s a fire we should all be able to get out safely. If there’s not a fire we should all be able to get out safely and the theatre owner/manager should ban the idiot for life. No need for men with guns. I really can’t understand why one idiot judge made a fundamental mistake and since then there is some crazy limit on free speech. Even incitement to violence should be up for debate; the limit should be enticement to violence.

  34. If there is no reasonable possibility of harm, then I agree-deception would only be wrong if deception itself is somehow morally problematic (as per Kant). Legally there would seem to be little grounds for legal action in cases of zero harm.

    Incitement to violence would seem to be something that can cross the line into being of legal concern. Of course, this can be rather fuzzy given that (especially in the States) people use all sorts of violent language in politics.

Leave a Comment


NOTE - You can use these HTML tags and attributes:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>