Speech is spoken; press is written. “News” isn’t the dividing line. News organizations engage in speech all the time.
Money isn’t speech. What Citizens said is that if Congress is intentionally trying to prohibit speech by restricting money rather than banning the speech directly, it’s still an infringement of speech. It’s the difference between a general sales tax (money) vs. a 1000% sales tax on printer’s ink (an effort to restrict newspapers that’s structured as a monetary restriction). The entire purpose of the regulatory framework in Citizens was to prevent corporate entities from engaging in certain speech.
But that’s not the question. There’s no debate that Congress can restrict the amount of money corporations donate to a political campaign. The issue is whether corporations can try to engage in political speech to try to promote or defeat the election of a candidate. IOW, you’re not looking at where the Sierra Club or NAACP get their money, but what speech they are allowed to fund with their money.
Absolutely. No one has disputed that corporations can be restricted in how much money they can contribute to political campaigns.
I can see that argument, but not sure I agree. If I post “bills” in the town square, am I “the press”? Or am I exercising my free speech rights? As an individual, I don’t believe it has ever been found that if I write something down I am exercising “free press”, but if I stand on a soap box I am exercising “free speech”. Both would be classified (including in Court precedent for 250 years, I believe) as “speech”.
So the only difference is one is a natural person (me), and the other is a special carve-out for a non-person that is delivering news (press). To my knowledge, “press” has always been understood as news media (in whatever form).
Generally, SCOTUS doesn’t draw any distinction at all between them - it’s all generally treated as a general First Amendment right to freedom of expression, with the institutional press and “news” organizations not having any greater (or lesser) protections than individuals or organization that are outside of the institutional press or engaged in expression that isn’t “news.”
It’s also worth remembering that the 14th Amendment - which is what limits states from censoring expression - only applies to persons. Even if a speaker is a straight up news organization, if they’re not a person then they don’t have rights under the 14th Amendment - speech, press, or otherwise.
That’s fair, better said…restricting money = restricting speech. Let’s simplify this equation by dividing each side by restricting. Welp, what do you know…money = speech!
Currently, corporations and billionaires contribute unlimited money to campaigns through candidate aligned Super PACs. Disclosure rules are flouted. This probably isn’t what SCOTUS intended with their expanded ruling. It needs to be fixed.
We like to rhetorically label the operations of Super PAC’s as “contributing” to campaigns, because they do work very hard to try to get their preferred candidates elected. But there’s a problem with ignoring the distinction between contributions and independent activities. Once we ignore that distinction, then virtually every other organization in the public policy space is also contributing to campaigns every time they take actions with respect to elections. We don’t want to treat the activities of the Sunshine Movement as if they were campaign contributions, even though they also engage in efforts to identify and support candidates who will advance their issues (protecting the environment), because we don’t want the government to be able to stop them from doing that.
That’s the problem that these laws have to solve, and it’s a very hard problem. How do you create a world in which some corporations are able to endorse candidates and try to get them elected without government censorship (unions, environmental groups, even newspaper editorial boards) while still permitting the government to prohibit other corporations from engaging in election-related speech. Saying that corporations aren’t persons doesn’t do it, because then the government can censor every corporation. Saying that corporate speech is actually a campaign contribution doesn’t do it, because (again) then the government can censor all corporate and a lot of natural person’s private speech.
It’s actually a very difficult problem. Folks who support taking the money out of politics don’t want it to be a difficult problem, so they will frequently just assume that this isn’t a real issue. But it is. Almost all speech of any audience size is conducted through the corporate form, so it is really hard to fashion a way for the government to restrict corporate political speech (the most protected type of speech) without opening the door for a lot of government censorship of all speech.
Nothing would prevent someone from contributing to the NAACP, Sierra Club, etc. Why would it?
Nothing would prevent the NAACP or Sierra Club from advertising, either for issues or for specific candidates. Why would it? The only thing they couldn’t do is become a sham front for contributing directly to a candidate: “Here is $100,000. You may only use it to advertise for Joe Smith, and here is the ad I want you to run.”
The “single purpose entity” is harder, but that appears to be a simple end run around making a PAC, which would no longer be allowed in that form. We have rules for what constitutes a “non-profit” versus a profit making corporation, why would it be so difficult to discern between a non-profit which does non-profit things and a non-profit formed entirely or mostly for the purpose of evading the law against contributions to candidates? (Indeed, we now have rules about preaching from the pulpit, although this administration and Republicans in general have gone about tearing that down. But it worked pretty well for 50 years, and may work again in the future.)
Again, all advertising would be distinctly and prominently sourced as to the sponsoring organization, and all political donations would be disclosed in some sort of public file, available to all for discussion, examination, and research.
Again, though - why do you think this distinction matters? What is the basis for prohibiting this corporation from engaging in this political speech and labelling it a “sham”?
If I am an individual, I am allowed to engage in speech supporting Joe Smith. I am allowed to pay people to create a short video explaining why Joe Smith should be elected. I am allowed to pay money to have that video aired in as many placed as I choose. None of that is “contributing” to the candidate, under current campaign laws - and it can’t be. I’m allowed to say that I think that Joe Smith should get elected, and I can say it in as many fora and through whatever media I choose.
If I can do that as an individual, there’s no reason I can’t create a corporation to do through the corporate form what I could do as an individual. Or request an existing corporation to do the same.
There’s nothing “sham” about it. The Sierra Club exists to promote environmental protections, and so it is allowed to spend money to promote environmental protections - including engaging in political speech to get politicians it thinks will help promote environmental protections elected. If I create a corporation that exists to get Joe Smith elected, then that corporation can also spend money to get Joe Smith elected. Why is that a “sham”?
Because that’s not the issue. If you define speech that is intended to assist a candidate get elected as a “contribution,” you would need to apply that definition across all entities that do that - whether they are a “non-profit that does non-profit things” or an entity that exists solely to do that type of thing. Because they also would be evading the law against contributions to candidates. So you would have to say that the government could censor all the candidate-supporting and endorsing activities of all corporate entities as well - no more Sunrise Movement or NYT endorsements anymore.
Of course, if that speech is legal - if it isn’t an unlawful campaign contribution - then there’s no reason you can’t then form a corporation that does not thing but engage in that lawful protected political speech.
Because a corporation has resources far more massive that “a person.” And the Constitution, whether some choose to believe it or not, does not make a Corporation = a human being. It is an artificial construct, a subset of commerce, not “a person”.
Again, nobody is saying they can’t contribute to a candidate - to some limit. Let’s say for the sake of argument, $200,000 (argue the amount, that’s fine). That’s enough to give them “speech” without them overwhelming the process. Let them also give unlimited to non-profit, public benefit organizations (NAACP, Sierra Club, heck Heritage Group). That’s plenty of “influence” without directly dumping buckloads of cash into the direct political process.
Yes, but then that’s why I choose to limit direct donations to Joe Smith. As you say “under current campaign laws”, but I think that deserves examination. Advocating for Joe Smith, making a video, writing letters, etc. are all well open and covered. Running a $10 million dollar campaign solely out of your checkbook, I’d have a look at that. That, to me, crosses the line to “direct contribution.” I do not want Elon Musk funding this sort of campaign for/against a Wisconsin judge, nor Warren Buffett doing the same - except as might be allowed within a monetary limit. That’s “campaign contribution”.
There is no reason that such a reasonable limitation couldn’t be installed (except for the current USSC, of course) because we have installed many such limits on “free speech” over the 250 years of the Republic. I’m sure the Founding Fathers did not think about incitement to imminent lawless action , true threats, defamation (libel or slander), obscenity, child pornography, fraud, fighting words, and perjury when they crafted the (absolutist language) of the 1st Amendment, and I’m sure some of those were controversial (even odd) when first considered by the court. Yet they stood, because without them the Republic fails. This is one of those. It looks weird to you now, somehow it passed muster (in one form or another) for nearly a century; it is only the extremist positions staked out by some Justices which seem to have made it unworkable now.
Nonsense. There would be nothing to stop a newspaper from endorsing a candidate, especially if no money was changing hands. Likewise the Sierra Club. If Monsanto wants to start a newspaper called “The Monsanto News” and endorse candidates, fine. If they want to shovel $10 million to a candidate under the table to do their bidding, not fine. “The Press” is different than “Freedom of Speech”, although the two are inexorably entwined. That does not make them identical, however.
Of course I can. A corporation is not “a person.” They are not granted the same rights under the Constitution, no matter how hard you try to twist the document. Never were, actually, until recently. Talk about “originalism”!
And some natural persons have resources vastly more massive than a typical person. So what? That’s both a true fact and not one that really has a place in constitutional rights analyses. It won’t permit government restrictions on the first natural person’s right to engage in speech.
And no one is saying that the government can’t limit actual contributions to a candidate. The problem lies with saying that someone’s speech about a candidate is the same as a contribution to a candidate.
You can have all the looks you’d like, but there’s no constitutionally significant limiting principle to differentiate between the two. In Citizens United, the corporation in question wanted to distribute a feature-length movie saying that Hillary Clinton was a terrible person and shouldn’t be elected President. The Court looked at that and couldn’t figure any constitutionally relevant difference between the movie that CU wanted to distribute and publishing a book that was critical of Hillary Clinton. NYT v. Sullivan held that an advertisement engaged in policy speech about the Civil Rights Movement placed in a newspaper has the same First Amendment rights as an article about the Civil Rights Movement published by that newspaper - the form of the publication doesn’t affect whether the speech is protected.
There’s a very good reason why your limitation can’t be installed - the speech in question is literally the heart of constitutionally protected speech. Unlike all the other exceptions you mentioned. Speaking about political and public policy issues is core protected speech, arguably one of the single most important categories of speech. Nearly all the other exceptions you mentioned are grounded in a legal analysis that says that the speech in question is outside of First Amendment protection. Political speech does not fall into that category.
No, it looks weird to me now because of the Civil Rights Movement. The “corporations don’t have First Amendment rights” argument was heavily wielded in the 1950’s and 1960’s by Southern states against the NAACP and northern newspapers, basically trying to prohibit the NAACP from engaging in activism and trying to censor outlets like the NYT from reporting on the Civil Rights Movement. The SCOTUS stepped in and said, “Absolutely not.” They weren’t going to let Alabama (usually the main instigator in this) use their state power to shut down the NAACP on the grounds that the corporate entity didn’t have any legal rights.
Yep - darn that Civil Rights era SCOTUS, deciding that Alabama had to respect the First Amendment rights of the NAACP and the NYT when those terrible corporations were doing things the Legislature didn’t like!
Concerned about increasing state regulation, corporations seek to overturn the Supreme Court’s decision in the Slaughterhouse Cases. Former U.S. Senator Roscoe Conkling, who had been one of the authors of the Fourteenth Amendment, argues in San Mateo County v. Southern Pacific Railroad Company that the Amendment’s phrase “any person” also applies to a corporation. Therefore, the county’s efforts at regulation violate the railroad’s right to “substantive due process.” The Court accepts this line of reasoning, frustrating state and federal governments’ efforts to regulate business practices for the next half century.
They do. They take advantage of loopholes and exploit the system. Some willingly break the law. Why wouldn’t they? There’s no enforcement to deter bad behavior. Claiming there’s no coordination is naive at best. Or as the Brennan Center of Justice puts it…“polite fiction”.
The BCoJ also provides some examples of what can be done to address the problem. Such as:
"Ensure adequate enforcement and deterrence. Tough rules have no meaning if they are not enforced. A single entity should be vested with clear, primary authority to enforce the law. That entity should not only react to private complaints but should also conduct investigations on their own initiative into possible coordinated activity. The law should also deter coordination by providing for graduated penalties. The size of the penalty should correspond to the severity of the violation. There should be allowances for de minimis transgressions, but there should also be adequate consequences for significant and deliberate wrongdoing."
The government already limits some speech, and that hasn’t lead to a complete destruction of freedom of speech. Why would it be different if the government limited corporate political speech? I get that political speech is the most protected form of expression. I also recognize that most corporations can include a number of individuals with various opinions. A corporation’s freedom of speech can lead to compelled speech for its members who may not agree with its opinions.
Corporations are not people. Do they deserve some of the same rights? Sure. Does that necessary mean they deserve all of the same rights? If so, they should be held to all of the same law and order standards as individuals. But they aren’t. We treat them the same in some areas, and differently in other areas. Because of these differences, there are opportunities to limit corporate contributions and spending for political speech.
I agree with that part of the court’s ruling, if only they would have left it at that. Instead, they chose to expand their opinion and strike down all existing prohibitions on corporate “independent” spending. In their decision, the SCOTUS acknowledged that the only permissible limits on money in politics should be to prevent bribery and quid pro quo corruption. Even so, here we are today.
Now, we’re seeing candidate aligned Super PACs take in hundreds of millions in dark money. We’re seeing a revolving door of people moving between working for candidates and their “independent” Super PACs. We’re seeing compelling evidence of quid pro quo corruption in donors receiving political gifts for their money.
I understand it’s an extremely difficult problem to solve, but I firmly believe it must be solved for the sake of our democratic republic.
Because there’s no limiting principle that would protect some corporate speech if we start allowing the government to limit speech based on the corporate identity. Almost all of our speech limits are based on an assessment that the speech itself isn’t protected by the First Amendment. This idea that “corporations don’t have the same rights as natural persons” isn’t grounded on the nature of the speech, but on the nature of the speaker. It makes it impossible to craft a constitutional rule that would protect the corporate speech we don’t want the government to have power over (say, publishing books or airing Jimmy Kimmel Live) if we say that corporations ren’t protected under the First Amendment.
Because the government couldn’t articulate any limiting principle that would allow them to “leave it at that.” Again, if corporations have a First Amendment right to free speech, then what basis is there for limiting their political speech - the most protected kind? And if corporations don’t have a First Amendment right to free speech, the consequences would be catastrophic (which is why the NAACP won all those cases back in the 50’s and 60’s).
The seeds for Citizen United were planted in those civil rights era cases. I think it might be helpful to quote from NYT v. Sullivan - which most law students know primarily because it established the “actual malice” standard for evaluation whether public officials can sue for defamation. But it also had another super-important - and unequivocal - holding that doesn’t get as much attention. Namely, that advertisements about public policy matters have just as much protection under the First Amendment as the content of the medium itself:
The second contention is that the constitutional guarantees of freedom of speech and of the press are inapplicable here, at least so far as the Times is concerned, because the allegedly libelous statements were published as part of a paid, “commercial” advertisement.
[SNIP]
The publication here was not a “commercial” advertisement in the sense in which the word was used in Chrestensen. It communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern. That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold. Any other conclusion would discourage newspapers from carrying “editorial advertisements” of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities – who wish to exercise their freedom of speech even though they are not members of the press. The effect would be to shackle the First Amendment in its attempt to secure “the widest possible dissemination of information from diverse and antagonistic sources.” To avoid placing such a handicap upon the freedoms of expression, we hold that, if the allegedly libelous statements would otherwise be constitutionally protected from the present judgment, they do not forfeit that protection because they were published in the form of a paid advertisement. [Footnote 5]
All those campaign ads? They’re literally no different under First Amendment analysis than any other television program, including the nightly news, that also talks about the candidates. If a message is about politics, it carries maximal First Amendment protection regardless of whether it’s delivered in the form of a paid advertisement or any other type of content. It becomes really difficult to come up with a framework that allows the government to censor corporate-funded campaign ads that doesn’t also allow them to censor the corporate-funded content that comprises all television.
Bribery / quid pro quo corruption should be the limiting principal. That’s why individuals have their contributions to candidates capped. There’s no reason to suggest corporations should be held to a different standard. If there’s evidence of this type of corruption, it must be investigated vigorously. Currently, it is not.
PACs still exist. Their contribution limits and spending limits still exist. Why is it ok to limit PACs, but not Super PACs? Independence? If so, there needs to be clearer guidance regarding what constitutes independence. If a Super PAC spends more than 50% of its money to support a single candidate, should it be considered independent? I don’t think so.
Are corporations investigated for this any less than individuals?
Also, remember that the legal standard for actual corruption is actually pretty difficult to meet. It is not only normal, but pretty much expected, that politicians will end up adopting policy positions that line up with those of their major supporters. That’s why those supporters are their supporters.
So, for example, if the Sunrise Movement: i) circulates a questionnaire early in a campaign cycle asking candidates to indicate whether they support strong climate change regulation; ii) requests that the candidate publicly commit to such support as part of their endorsement-making decision process; iii) endorses only a candidate that makes that commitment; and then iv) funnels a ton of their corporate resources towards getting that candidate elected, it is neither surprising nor bribery/corruption when that candidate ends up trying to accomplish the exact things that Sunrise Movement openly asked for and clearly conditioned their support on.
The issue isn’t whether the Super PAC supposers more than a single candidate, but whether it is functionally independent. It’s very easy to imagine an organization that exists to try to get a candidate elected that is wholly independent of the candidate. Citizens United was a pretty good example. They were an anti-Democratic outfit that made movies attacking Democratic candidates they disliked in each election cycle. They just wanted to see Hillary defeated, and the Obama campaign very likely didn’t even know they existed.
I expect that every Presidential cycle in recent history, and certainly going forward, spawns a whole bunch of these efforts by people who detest one of the candidates and want to destroy their electoral chances…but which are either unknown to or mostly ignored by the opposing candidate who will benefit from their efforts. Not all of them become as famous as the Swift Boaters - most of them, like Citizens United itself, will just be folks who are fellow travelers who want to damage the opponent but aren’t otherwise connected to the candidate’s campaign.
What if the leader of Sunrise Movement benefits financially from those accomplishments?
For example, let’s say the owner of a toll bridge has his business threatened by the opening of another, newer toll bridge that is set to open. The owner decides to donate money to a Super PAC that supports a very powerful politician who had supported the construction of the newer toll bridge. Shortly after the Super PAC receives the donation, that powerful politician changes his support and threatens the opening of the new toll bridge, until his demands are met. Does that sort of thing raise red flags?
Sure. Just like if that owner had donated a ton of money to the politician’s favorite charity, or gave a huge job to that politician’s brother-in-law’s company. Investigate all those scenarios. But they can’t justify (for Constitutional purposes) stripping corporations of all ability to engage in political speech.
Remember that our bridge owner could also choose to spend all that money themselves trying to get voters to oppose the politician’s position on the new bridge. Get enough voters to hate the new bridge, and the politician is likely to change his mind on it. After all, politicians are supposed to be responsive to the preferences of the electorate (in part). The fact that bridge owner is doing this to serve his own interests is not necessarily a problem, either - the political system relies on people expressing their own self-interest to political figures through their preferences and voting behavior, since that’s a very accurate way of letting the government know what helps and hurts the voters writ large.
Finally, banning corporate money in the bridge scenario can, in fact, exacerbate the problem. The rich person is rich - their opinion will always be heard by the politician, and (as noted above) they can spend their own money. The public, on the other hand, is made up of lots of not-rich people who all would each get a small benefit from the new bridge. If Rich Owner is trying to get the bridge closed, the various voters don’t really have a mechanism to push back against that unless they have the ability to organize a counter-campaign by pooling their resources in a common enterprise. Which would take the form of…you guessed it…a corporate entity that engaged in public policy advocacy through (among other things) advertising…
You keep misstating the argument. Nobody is saying ALL. We are saying “limits”. There should be some test by which “reasonable balance” can be achieved. We do it all the time in balancing all sorts of things in law; this is not different.
OK, but there is no reason why there can’t be some kind of spending limit on such activities FOR ALL.
Don’t overstate the case to make the point. You don’t usually do that. Don’t do it now, either.
Plenty of people are saying ALL. If you say a corporation is not a person within the meaning of the Constitution, it means that the corporation has no First Amendment protections against State regulation.
Yes, there is. It’s the First Amendment. Such activities are constitutionally protected political speech. Government is forbidden from putting limits on such things. Just like government can’t say that no one can spend more than $10,000 on cultural works that promote the homosexual lifestyle, or no one can spend more than $10,000 to argue in favor of carbon emissions limits.
This isn’t overstating the case. There are exceptions to the First Amendment where the courts have held that the speech isn’t protected. That is fundamentally different than trying to argue that core protected speech can be limited by the government just because government doesn’t approve of the consequences of allowing that speech. If you construe the First Amendment to reach that latter proposition, then you’re really opening up a can of worms for a lot of government “limits” on things that we really don’t want government to have the power to “limit.”
It’s also very easy to imagine an organization that exists to try to get a candidate elected that pretends to be independent of the candidate. I’d argue that many Super PACs fall into this category. When Super PACs organize campaign events for candidates, is that independent? When Super PACs and campaigns swap employees, is that independent? When Super PACs use the same vendors as campaigns, without firewall protections to prevent collaboration, is that independent? Nope, nope, and nope.
By allowing massive political contributions from the wealthy, we’re in effect giving them more freedom of speech. If all contributions to Super PACs were capped, that would level the playing field. If we did that, we might not even have to cap what Super PACs spend.
Agreed. Let them spend their money where they please. However, THAT’S where independence is critical. Who cares if a Super PAC coordinates with a candidate if their contributions are capped? I certainly wouldn’t. But…if Daddy and Mommy Warbucks want to spend their own money to campaign for a candidate or a policy, they shouldn’t be allowed to coordinate with the candidate, nor with any politician who can pass their favored legislation. Their money must be used to persuade other voters, not to influence politicians.
Vote buying when it comes to voters is illegal, yet we’ve managed to create a system where it’s perfectly legal to buy the votes of the politicians. Bonkers.
They already have that. Every one of the things you mentioned could be done by the wealthy person, using their own money. As pointed out upthread, if Elon Musk wants to do all those things on his own, he can do it.
That makes it exceedingly difficult, from a constitutional perspective, to prohibit corporations from doing the same thing. If the speech is legal and constitutionally protected, it’s hard to fashion a rule that says that the corporate entity can’t engage in that speech. You can cap the amount of money that people give to corporations - so you could have a law that says no one can give more than $50,000 to any not-for-profit corporations. But that would be pretty harsh for institutions like Harvard University or Sunrise Movement and lots of other groups.
You can more rigorously enforce independence - after all, that’s something SCOTUS specifically allows for. What you can’t do is put restrictions on the actual speech the corporations engage in - or rather, you can do that, but you end up with a lot of very nasty consequences once you allow government to get into the business of limiting public policy speech.