The Campaign Finance Decision

Last week was a banner week for libertarians and conservatives.  The upset election of Scott Brown to the Senate seat once held by Ted Kennedy quite effectively put the brakes on Obama's takeover of the health care industry.  That it occurred in true blue Massachusetts was astonishing.  But the bigger story and the one that should have us cheering loudest was the Supreme Court decision in Citizens United v. Federal Election Commission.  This video by the Cato Institute explains what was at stake.

Needless to say, the decision in favor of Citizens United was was not universally applauded.  In the view of New Jersey pundit John Farmer, Justices were blind to the corrupting influence of cash when they arrived at their decision. His is a very leftist view, couched in terms of redistribution. Few things are more fundamental to our notion of political liberty and equality than freedom of speech. We’re all supposed to enjoy it more or less equally. Ideally, no one’s supposed to have too much more of it than anyone else, or it isn’t very equal. We all know that’s not how it works, however. Some individuals or groups will, for one reason or another (usually money), always enjoy more of our constitutional freedoms. The Constitution, in its majesty, guarantees the pauper as well as the prince the right to a lawyer. But it’s better than even money that the prince is going to get Clarence Darrow while the pauper is likely to get the last guy in the class in law school. That’s why federal courts are there, to smooth out at least some of these inequities. Is that why the federal courts are there?  I never knew.  Farmer seems not so much opposed to the influence of money as much as the danger that such influence would fall to the wrong people.  He would prefer that party leaders handle all the money.  These things often have unintended consequences. Ben L. Ginsberg, a long-time lawyer for GOP conservative causes, counsels caution. "It’s going to be a wild, wild West" in future campaigns, he warned, "with a lot more voices and the loudest voices are going to be corporations and unions." In the process, the power of both parties, Republicans as well as Democrats, could be diminished as corporations and unions run their own campaigns and give less cash to either party. Why run money through the parties — the middle men — when corporations are free now to spend all they want on their own more tightly targeted campaigns for issues and candidates? Conceivably, they could now spend enough to dominate party primaries, denying Democrat and Republican leaders the power to nominate preferred candidates. It sounds a vote for the good ol' boy network.  Funneling all the money through party bosses would more likely have the effect of further insulating them from donors and voters.  Let's not overlook the fact that government is itself a special interest.  By allowing corporations to bypass party poobahs we might actually limit the growth of that particular special interest.  And it's safe to say Farmer's own interests were curbed by this decision.  As a journalist Farmer was accorded special privilege by McCain-Feingold, which would have effectively silenced competing voices during the days immediately before an election.  As an individual Farmer was exempt from McCain-Feingold prohibitions, but unless he is independently wealthy his political speech would reach only a small audience.  However, as a member of his media corporation he was allowed unfettered political speech and the means to deliver it to a wide audience because of his corporation's special status as a member of our free press.  Other corporations were denied this right of speech.  That is, up to now. A justification of such denial rests on the definition of a "legal person".  A corporation is a legal person, as opposed to a natural person.  According to some opponents of the decision, our founding fathers intended that only a natural person be entitled to first amendment protections, but according to Professor Bainbridge, the Citizens United v. Federal Election Commission decision reaffirmed corporate first amendment rights. The legislative history of the Fourteenth Amendment suggests that Congress substituted the word ''person'' for the word ''citizen'' precisely so that the provisions so affected would protect not just natural persons but also legal persons, such as corporations, from oppressive legislation. We see this view further confirmed Roscoe Conkling's recounting of the relevant legislative history in Conkling's arguments in San Mateo County v. Southern Pac. R.R., 116 U.S. 138 (1885). Conkling had been a member of the Joint Congressional Committee that drafted the 14th amendment and in Southern Pacific argued to the Justices that it had been the intent of Congress for the word "person" to include "legal" persons (corporations) as well as "natural" persons within the protective scope of the due process and equal protection clauses of the amendment. The Court accepted Conkling's argument. As Larry Ribstein argues, this development made policy sense: ... corporations are people – the owners and others the corporation represents in litigation. These people have speech rights, rights not to be discriminated against, and so forth. I’ve written on this ...: The Constitutional Conception of the Corporation, 4 Supreme Court Economic Review 95 (1995); Corporate Political Speech, 49 Wash. & Lee L. Rev. 109 (1992) and in my book with Henry Butler, The Constitution and the Corporation (1995) .... So the African-American owners of this SBA-certified minority-owned contractor shouldn't lose their civil rights because they chose to do business in the corporate form. They might be required to sue as a corporation, as in this case, because that’s a convenient way to handle litigation, but that doesn’t determine their individual rights. But courts also should recognize that, by the same principle, people shouldn't lose their speech rights just because they exercise these rights though the corporation in which they have invested. One practical effect of the decision may be to afford corporations some protection from bullying by elected officials.  As the Cato video explains, the power that needs to be curbed is government power, not the power of its people whether they are natural persons or legal persons.