Can Democracy and the First Amendment Co-exist?

July 1, 2012 § 6 Comments

I recently expressed my fear that major parts of our political system were being bought with corporate money.  [See The American Monopoly Game].  I speculated that a good argument could be made that large corporate contributions to campaigns of political office holders amounted to bribery and, hence, could be legally prohibited.

Last week the Supreme Court rejected that argument.  The State of Montana sued to preserve its limits on political contributions.  They offered uncontroverted proof that those limits were enacted in response to a mining company’s brazen offer to  buy state legislative offices for $10,000 each, an offer that was accepted by a sufficient number of legislators to enable the purchaser to buy a seat in the United States Senate.  (These events occurred when US Senators were elected by state legislatures.)  The senate refused to seat the purchaser, but Montana’s voters were so disgusted with his effort that they forced, by referendum, the adoption of limits on the amount of political money that could be contributed to a political campaign.  Those limits remained on the books until they were held unconstitutional last week, based on the Citizens United decision.

In other words, my proposed argument was made in an ideal set of circumstances and the Supremes were unimpressed.  They continue to cling to their professed naive belief that political office holders will not be unduly influenced by money.

This morning I got another jolt when I watched Up With Chris Hayes and learned that the ACLU and some labor unions filed briefs in support of the court’s majority ruling in Citizens United.  Glenn Greenwald, a writer for Salon and a First Amendment lawyer was on Hayes’ panel.  He stoutly defended the court’s ruling and argued that it merely confirmed what First Amendment advocates had successfully argued in cases filed on behalf of the NAACP in the 50’s and 60’s.

Greenwald said that if corporations were not deemed to have the same rights as humans, the government could censor the New York Times and the various TV and radio networks, all of whom are owned by corporations.

Our legal system is based on the principle of stare decisis, which means that the law will not be interpreted differently for different litigants.  The law for one is the law for all.  So, the “good” First Amendment law made for accused communists and the NAACP, now protects the corporations who are buying our political system.

As I’ve let this sink in, I’ve also realized that this argument also applies to our hope that forcing full disclosure of the contributors to the PAC’s that threaten our democracy might weaken their strength because we could then match their contributions with their nefarious motives and, perhaps, discredit them and the politicians who accepted their money.

The problem with this possibility is that this exact motive prompted bigots to demand membership rolls from the NAACP in the 50’s and 60’s.  Houston’s own Christia V. Adair, a civil rights activist and suffragist, once engaged in an epic battle with the City of Houston and its police force rather than give up the local NAACP membership roll to them.  The U.S. Supreme Court, in a five-or-six-year-long battle between the State of Alabama and the NAACP, ruled that the First Amendment protected the right of the NAACP to keep private its membership rolls in order to protect its members and supporters from being harassed and threatened.

This is the law that now protects Carl Rove’s outfit from disclosing its contributors.

So, is there anything we can do other than watch while democracy is replaced by plutocracy in America?

Probably not as long as the present Supreme Court majority sits.  Even a constitutional amendment would be hard to draft so that it protected interests like the NAACP and theNew York Times, while stripping protection from Chevron and corporations owned by the Koch brothers.

I do see one little ray of hope, although it is a flickering one.  When the Court decided the Alabama case, they distinguished an previous case involving the KKK.  New York law required the Klan to file a sworn copy of its constitution and membership roll with a state agency.  The KKK refused.  The Supreme Court held that they had to obey the law because their organization was known to have a lawless past record and the State of New York had good reason for wanting to keep track of its activities.  In the Alabama case, by contrast, the State of Alabama had no such evidence of potential harm to justify its demand for the NAACP’s  membership rolls.

I can imagine a decision that would justify full disclosure of Rove’s organization on the ground that the political process works only if there is accountability, and accountability is impossible without knowing the identity of the source of political speech and expression.  The voters are like a jury listening to witness testimony.  They are entitled to know enough to judge the bias of the witness.  That should convince the Court that political contributors and those who try to influence political decisions should take off their masks and let the voters know who they are listening to.

Having said all this, I am more discouraged today than I was yesterday because this morning I heard the pro-civil rights case for Citizens United.  Once more, it turns out that the issue is more complicated than it appeared.

§ 6 Responses to Can Democracy and the First Amendment Co-exist?

  • Terry says:

    A few random thoughts –

    The reason why corporations are not people for the purpose of political speech is that, so far, corporations cannot vote. If you are not, or never would be, able to vote, your speech should not be afforded the protections given political speech under the First Amendment.

    Ironically, Mittens is right – corporations are people, BUT they are people who have been afforded statutory protections from personal liability for the acts of the corporation. These protections are based in the idea that economic (not political) activity is increased if people who invest in or run corporations have limited risk — the amount of the investment in the case of investors or the observance of the corporate form while engaging in the particular economic activity in the case of officers and directors. If a corporation wants to lobby the political process, they have to register and name the actual people who are lobbying. It seems to me that Crossroads GPS is lobbying – which should be the only form of speech corporations are allowed in the political process since they cannot vote. I think the lobbying rules are the same for both for-profit and nonprofit corporations. Amending the lobbying rules ( if it is not already included) to require the idenfication of all entities (and people) who own a material stake in the corporation should not be offensive. To me there does not seem to be a material difference in using money to run ads and using money to influence an elected official — if a corporation does it, it is trying to influence the political process.

    I am not worried about the government censoring the press (i.e. the NY Times) if we adopt a constitutional amendment that says that corporations are not people. The press is protected by a separate clause of the First Amendment. Though perhaps Crossroads GPS would simply recast itself as a member of the press.

    Another front is to stop granting tax-exempt status to these 501(c)(4) organizations. It really irks me that as a tax payer, I am being forced to support Rove’s Crossroads GPS because it is engaging in the marketplace with no tax burden and it is not providing a social welfare purpose. However, I also can’t quite figure out what “profit” would be reported so that a tax would be imposed (what is the taxable value of delivering a US Senate seat or a county assessor position for the investors?), but at least it would remove the non-disclosure. I wonder if the SEC might have jurisdiction; I would like to see the prospectus for investment. Some tough issues here though – the government’s enforcement and interpretation of “social purpose” could always be used to shut down or tax those organizations that it currently doesn’t like.


  • JM says:

    “The reason why corporations are not people for the purpose of political speech is that, so far, corporations cannot vote. If you are not, or never would be, able to vote, your speech should not be afforded the protections given political speech under the First Amendment.”

    Firstly, the First Amendment does not say that one must be able to vote in order to have free speech rights. It simply says that “Congress shall make no law…abridging the freedom of speech.” Whether that speech is exercised by one person, or a group of people acting collectively, it doesn’t matter. The Constitution makes no distinction.

    Secondly, as was mentioned in the segment on Up with Chris Hayes, that sort of thinking would mean that the government could strip the speech rights from MSNBC and the New York Times — both of which are owned by corporations. No one seriously believes that corporations don’t have free speech rights when we’re talking about corporate media, and that same principle must apply to all other corporations.

    I’m shocked that the author had never heard of the “pro-civil rights case” for Citizens United until yesterday. But that’s what I like about Chris Hayes’ show: it challenges people’s preconceptions. If only more cable new shows did that.


    • Bob Hall says:

      I take your point about my failure to be aware of the “pro civil rights case” for Citizens United. Now that I am aware of it, I still wish that the ACLU and others who want to protect freedom of expression had focused on the obvious devastating effect that allowing unlimited corporate political spending would have on the political process. I think there were, and are some ways that approving limits on corporate political influence could have been defended without doing harm to the First Amendment.
      Terry’s comment suggests one of them: Scalia’s obsession with the “original intent” of the drafters of the Constitution could have been used to distinguish corporations from human citizens. As the article to which she supplies a reference correctly observes, the bizarre notion that a corporation is a “person” was originally based on a clerk’s comment, not a ruling by the Supreme Court. Unfortunately, the railroads were becoming powerful political and financial forces in America at that time and they were desperately reaching for ways to defend against federal and state regulation. They were not thinking about free speech. Their focus was on “due process”, which the Court used to limit the ability of government to regulate them.

      So, I think it could have been argued that the “original intent” was contrary to the holding in Citizens United.

      I also think, however, that there are other, perhaps better arguments. For example, the history of Free Speech litigation is a history of the imposition, expansion and contraction of its limits. The Court has recognized many. For example: Holmes’ “clear and present danger” as a trigger for limiting freedom of expression (holding that anti-war expression during a war could be suppressed based on that standard); pornography has no protection; defamation has no protection but Times v. Sullivan required “reckless disregard of the truth” to impose a restriction, but other cases held that damaging speech about “public figures” has broader First Amendment protection than similar expression about private individuals; Tinker v. Des Moines held that public school students could express themselves with arm bands,but Hazelwood ISD later held that the school could censor a student newspaper; Connick v. Myers held that employees could be fired for expressing themselves about the employment practices of a government employer, but not if their expression was about a “matter of public concern” like racial discrimination.
      All of these rulings, and this is not an exhaustive list, mean that limits on First Amendment expression have long been based on the extent and nature of the harm that proposed expression would have if not suppressed or limited.
      I believe the Supreme Court could have approved of the limits on corporate political money without damaging the First Amendment if they had recognized that, without those limits, the political system that is at the core of our democracy would be affected in ways that undermine the faith and confidence of our citizens in it.
      Let me pose a hypothet: The GOP plans a national convention in Tampa this Summer. The public address system will doubtless be based on a complicated set of amplifiers and a Jumbotron that will enable granny in the cheap seats to hear every word spoken by every right-wing pol who manages fifteen minutes of fame before the mike.
      I assume that the system will be controlled with computerized technology from an off-camera room full of blinking lights and keyboards.
      Suppose some tech-savvy liberals find a way to hack into that system and proceed to drown out or otherwise interfere with the scheduled speakers? Is there any doubt that the cops could, and would if they could find them, arrest the miscreants and end their heckling? No.
      Now change a few details. Political campaigns are being conducted all over the country at various levels of government. Some multi-billion-dollar corporations decide to drown out and overwhelm one set of candidates with huge media campaigns paid for with huge sums of money. Why couldn’t the government act to prevent that?
      The recurrent metaphor for political combat is the “public square”. There should be permissible limits on heckling and shouting and otherwise drowning out voices there just as there are in actual public squares and convention arenas.
      Our courts have limited First Amendment rights in the past based on their perceived harm and the value of the victim of that harm. The victim of Citizens United is the political system. The harm is becoming obvious with every passing day and we aint seen nothing yet.


  • Terry says:

    So you think the Constitution was written as an agreement among the people to give protections to non-people? The history of corporations in this country does not support that the intent in the Constitution was to allow corporations free speech rights and engagement in the political process. See –


  • Um, Glenn Greenwald was at the time a writer for Salon, not Slate. Soon afterwards he moved to the Guardian. Details matter.


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