2.20.2010

Taking issue with a piece in the Milwaukee Journal Sentinel

Janice Eisen clearly doesn't like corporations.  And, it seems, she clearly doesn't like more free speech in elections.

In her column in the MJS earlier this past week, Eisen does something worse than merely espousing those opinions, however.  She doesn't get the law quite right.  She fails to delineate and appreciate the outer limits of just what the U.S. Supreme Court's Citizens United ruling actually does.  The distinctions may be fine, but they're extremely important when criticizing the nature of a court's ruling.  It's the only way to avoid allowing emotion and political ideology from clouding the electorate's understanding of what the decision means.

For example, she writes this:




Now the U.S. Supreme Court has ruled, in Citizens United vs. FEC, that federal limits on the use of corporate money in elections violate freedom of speech.

That's a very broad statement. A conveniently overbroad statement, in fact.  And it gives the impression that the ruling allows not only corporate or union spending for advertisement for or against candidates during election periods, but also that corporations can give direct donations to a candidate's campaign.  The ruling does not, in fact, allow for that latter activity - and thus, the opinion does not even protect all political monetary donations as speech.  It protects advocacy by corporations about those up for election during an election by recognizing that some speech requires a monetary expenditure.  It forces corporate money into the forum for public scrutiny and digestion.

Eisman continues:

While spending to support a candidate expresses a preference for him, that doesn't make it speech. The implication: People are entitled to more speech as they acquire more money.

I'm not sure if she's taking a hardline stance in that only ACTUAL speaking is protected by the First Amendment.  If so, that would be rather absurd - think of all the repression that a state or the federal government could impose if we read the text that literally.  Her second sentence is simply faulty.  There's no implication that people are entitled to more speech as they acquire more money - there's no entitlement at all.  It's simply a recognition that cutting off any speech about our politics is a bad thing, a step by government into the forum where citizens themselves should decide.  Eisman's dismissal of expressing a preference for a candidate would, if enforced, bar a select few entitities made up of individuals from speaking politically about those who will have the power to regulate them.

And that brings me to another of Eisman's conclusions:

If this idea were applied across the board, its absurdity would be clear. Taken to its logical extreme, it would allow people to legally bribe elected officials, just as they have the right to speak to them. It is both philosophically unsound and against fundamental American principles.

For one, we're not taking it to its logical extreme.  Second, she completely misconstrues the nature of what the opinion permits: it does not permit direct donations to candidate coffers by corporations.  The ostensible "bribery" could only occur if the electorate agrees with the speech the corporation puts forward in the forum of political speech, as cacophonous as it may be.  By stating that it's against fundamental American principles, Eisman reveals what undergirds her argument: a presumption that the American people are too stupid to self-govern, that they will never see through corporate advertising, that there will never be a backlash against excessive corporate spending for a candidate.  She also presumes that corporations will even want to throw money into the political market in the first place - something that's not necessarily true given shareholder involvement and the risk of the Oprah-endorses-Obama-and-loses-audience phenomenon.

Eisman, after a while, engages in outright scare tactic hyperbole:

But we should not treat them as individuals with constitutional rights. Do we next let corporations vote?

Do we let the NRA vote?  Do we let Planned Parenthood vote?  Do we let PACs vote generally?  No, but they too are amalgamations of individuals that speak in the political forum.  The concern is absurd and unrealistic.  Individuals joining together doesn't give them "extra rights" as Eisman would have you believe:

Corporations are not people, but creations of the government, given certain economic advantages and legal protections. They should have no rights other than the privileges outlined in their charters. The individuals who own and operate the corporation already have civil rights - why are they now entitled to extra rights?

What extra rights?  Joining together to speak on political issues is a hallmark of the American political system - or speaking incidentally after forming a group for another purpose.  Individuals with civil rights who join together in other forms aren't barred from speaking.

Then there's this:

During the 2007-'08 election cycle, political parties spent $1.5 billion and federal political action committees $1.2 billion. During the same period, the Fortune 100 companies took in $13.1 trillion, with profits of $605 billion. The staggering imbalance is clear.

I'm not quite sure what clear conclusion we're supposed to draw from those numbers.  Corporations are going to pour all of their profits into political donations?  Right.

This is a giant step toward the complete delegitimization of the government. If people believe a judge's decisions are swayed by interests that support his campaigns, that's even worse than the common perception that state and federal legislators are in the pocket of lobbyists and contributors. Add unlimited corporate spending, and government becomes a wholly owned subsidiary of the biggest Big Business.

Is it?  I think "complete delegitimization of the government" smacks of unhinged alarmism.  As for judges, the elected Supreme Court Justices in Wisconsin serve 10 year-terms, a long enough term that they really don't need to kowtow to those who happen to support them, unlike, say a federal Representative.  But even Congressional races are not automatically determined with the entry of greater corporate advocacy in the election cycle.  Much of the feared money is already in the system.  And with that in mind, it's about whether an individual citizen thinks corporate advocacy money is so nefarious that he or she is impelled to find or persuade others of like mind to organize, to point out the connections, to shout collectively in the forum that the corporate support in question is a stain upon the candidate.

In the end, I'd ask Ms. Eisen how she'd respond to the corporate-funded-book hypo that came up at oral arguments before the Supreme Court:

Ms. Kagan disavowed a statement that a government lawyer made when the case was first argued in March. The lawyer said the government could ban the distribution of books paid for by corporations before elections.

“The government’s answer has changed,” Ms. Kagan said, adding that the Federal Election Commission had never tried to regulate distribution of books.

Chief Justice Roberts bristled at that statement. “We don’t put our First Amendment rights in the hands of F.E.C. bureaucrats,” he said.

He then asked about pamphlets. “A pamphlet would be different,” Ms. Kagan said. “A pamphlet is pretty classic electioneering.”

Where, really, would the line stop as to what the government might regulate?  The risk of chilling political speech, the form of speech most important to the "democratic system" Ms. Eisen wants to protect, would not be worth the ostensible benefits.  And it would stand to bar information from getting to the electorate - information that might be factual, persuasive, and otherwise unavailable.

In the end, Democrats in Washington have proposed a number of legislative measures to blunt the effect of Citizens United.  While I don't believe some of them are necessary (like guaranteed response time, bars on bailout recipients' speech [don't give bailouts to begin with], etc.), I am willing to take a look at a few of them.  I consider one facet especially because I believe requiring a certain amount of disclosure for corporate donations is a justifiable way to ensure the speech is a useful addition to the forum.  And it has the side effect of ameliorating some of the monied advantage so many complain of after the ruling.

I'm also intrigued by proposed measures to bar foreign-owned companies from engaging in unlimited political advocacy on behalf of or against candidates.  While I believe an existing law would continue to bar such contributions, the prospect of foreign companies that are state owned enterprises does raise an interesting question of improper influence.  Still, if I were a legislator, I might wait until a few courts had ruled on the question.

Finally, one of the men behind Freakonomics also suggests a contractual approach to obtaining congressional regulatory leverage over corporate expenditures.

Several of these proposals to channel the ruling are more rational, productive responses to the development than the Eisen critique.  Eisen's assessment, as I've noted, is awfully convenient in its railing against "malefactors of great wealth," and it fits a common, age-old theme:

"The rich make a good scapegoat," said Christian Crandall, a social psychology professor at the University of Kansas. "When you can point to a bad guy, and say 'it was him,' the world makes sense, and that makes you happy."

Overall, the ruling seems to assess corporate bans under the same robust First Amendment framework the court has applied to other aspects of speech.  And that robust framework will doubtless make us all a bit uncomfortable at times.  It's up to us as citizens, though, to realize that self-governance is about continued involvement and vigilance, not broad, knee-jerk bans on things we don't like.