Money, speech, people, and corporations

When I started writing this entry, I was going to demonstrate the idiocy that, under the U.S. Supreme Court's Citizens United decision of earlier this year, Rupert Murdoch's News Corporation hypothetically could donate anonymously any amount of money it liked to nonprofit groups engaged in "issue advocacy" while Keith Olbermann would first have to advise his superiors at NBC News before donating any amount openly to a political candidate, or risk sanctions by NBC (as in fact happened). The corporation is freer than the individual person, I would have noted snarkily, and I would have advocated strongly for ending the conditions that allowed for this sad irony.

But as so often happens, on reflection I found the reality to be a lot more complex.

First, some background in case you've been asleep for the past year.

Keith Olbermann was temporarily suspended from MSNBC for undisclosed campaign contributions in violation of NBC News policy. The policy doesn't bar all contributions per se, but requires prior approval by management. (Olbermann's suspension lasted two working days.)

A while back I ran across a piece in The Atlantic that highlighted the wrongness of blaming the Citizens United case "for allowing secretive, shady, special-interest money to flow unabated into the U.S. political system, corrupting elections at an unprecedented pace."

Much of the "shadowy" spending Democrats have cited comes from groups that file under section 5014(c)4 of the U.S. tax code. Commonly known as 501(c)4's in the political world, they're tax-exempt nonprofits that engage in issue advocacy and don't typically disclose their donors. Americans for Prosperity, the Koch-funded conservative organization that's a favorite for Democrats to demonize, has a 501(c)4 arm, for instance. The Karl-Rove-co-founded American Crossroads also includes a 501(c)4 operation.

Citizens United didn't actually change anything about what these groups can do. They could spend unlimited amounts during election season without disclosing their donors before this past January.

All that changed, therefore, is the right of corporations and labor unions to donate to those 501(c)4s. We'll never know if they do, of course.

A lot of people are concerned about the corrosive effect of money in politics. The logic is, the richer you are, the better the government treats you. Compared to most people, most corporations have a lot of money. Ergo, the government's actions are likely to favor corporations over individual people.

A factor contributing to people's anger is that the U.S. Supreme Court has long recognized corporate entities (corporations, unions, etc.) as people for the purposes of determining those entities' rights under the Constitution. This principle, by the way, was not articulated within any decision issued by the Court: rather, it was in a notation added by the court reporter to the syllabus of the decision in Santa Clara County v. Southern Pacific Railroad Company, adjudicated in 1886. (The Wikipedia page about the case contains a fuller story, although, as with any Wikipedia article, one cannot be certain that the account is true or complete.) The Court in Santa Clara never even reached the question of whether the corporations in question deserved to fall under the Fourteenth Amendment's equal protection clause, which applies only to "person"s, so no explanation exists for the Court's thinking.

Back to Citizens United:

The rule that political speech cannot be limited based on a speaker’s wealth is a necessary consequence of the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.

Whether we like it or not, the government is not allowed to make rules that discriminate against billionaires, just as it's not allowed to make rules that discriminate against ethnic or religious or other groups.

How, then, are non-billionaires supposed to counter a billionaire's spending in support of his own interests, which probably don't accord with everyone else's? The non-billionaires have to pool their money by banding together, and the collective entity has to be able to spend as freely as the billionaire.

Can you distinguish between "good" entities formed to protect The Little People and "bad" entities merely out to enlarge their share of the pie? Not in any way that would survive Constitutional scrutiny. You wouldn't even be able to arrive at popular agreement on "good" and "bad" entities: I guarantee that what you call an Evil Special Interest is your neighbor's Heroic Struggling Association Of People Trying To Protect Themselves From Your Evil Special Interest.

Ergo, either Congress or the Court almost certainly would have had to give associations of people the same right of free expression that actual human beings have even if Santa Clara had never been adjudicated. Citizens United was inevitable, because of the expansiveness of the First Amendment.

I don't like that some kinds of nonprofit groups that engage in "issue advocacy" are allowed to keep their donors secret. It seems to me that secrecy and money make for a corrupt political process. Yet I must admit that I wouldn't want my name to appear in a donor list no matter how proud I was of my support. It's the privacy-lover in me. I haven't thought about this issue in any greater depth, so I'll leave it at that.

So what about the thought that started this ramble?

Well, Citizens United is a First Amendment issue, pure and simple, because it centered on Federal law governing campaign donations. Olbermann's suspension, though it involved political donations, has nothing to do with the First Amendment because it was a corporation, not the government, punishing him.

It's still ironic that corporations are freer than most people, because corporations don't have to abide by employment contracts that restrict their actions (in some cases, even after they leave the employer). Alas, I can't see a simple way of ending the conditions that allow for this irony.