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February 13, 2010

Yes, money is speech

Rick Esenberg

[Originally published in the Milwaukee Journal-Sentinel, 1-30-10.]

In Citizens United vs. FEC, the United States Supreme Court held that corporations (and - probably - unions) have a constitutional right to make independent expenditures advocating the election or defeat of political candidates. Much criticism of the decision turns on two assertions. "Money," the critics say, "is not speech," and "corporations are not people."

These are just sound bites. They are legally irrelevant and have been for a long time.

Money may not be speech, but a right to speak without the corresponding right to make one's voice heard would be an empty liberty. A genuine freedom to speak cannot be limited to the right to stand on the corner and holler at passersby. It takes money to use the Internet, print pamphlets, publish books or broadcast ads. Citizens United is an important case, but its recognition that prohibiting someone from spending money to disseminate a message can be the equivalent of suppressing that message is not novel. It's been settled constitutional law for almost 40 years.

Corporations are not people, but they are associations of people whose common endeavor is affected by government policy and election results. Like natural persons, some are wealthy and others are not. Some are formed to seek profit by providing goods and services, while others are nonprofit. Like natural persons, these associations have an interest in being heard on matters that affect them. Not surprisingly, courts have recognized that a corporation may have constitutional rights for well over 100 years.

What is new about Citizens United is its recognition that corporate free speech rights include not only the right to speak about issues but to engage in "express advocacy" for or against a particular candidate. Rather than limit themselves to gravely narrated ads asking you to call Sen. Foghorn and tell him to stop destroying the republic, corporations (and unions) can now simply ask you to vote for his opponent.

Corporations still may not contribute to candidates. Corporate speakers will have to identify themselves, and companies may be reluctant to become involved in public debate for fear of consumer or shareholder backlash. Contrary to the claims of President Barack Obama, foreign corporations are still prohibited from attempting to influence federal elections.

But, as a law professor who teaches election law, I do think that the ramifications of Citizens United are huge.

One of the motivations for campaign finance reform has been to reduce the amount of money spent on politics and to "equalize" political resources. This is not as noble as it sounds.

To restrict what can be spent on speech is to restrict speech itself. Restricting speech tends to favor incumbents - who generally hold an advantage in name recognition and fund raising. Allowing legislators to set the rules that govern the elections in which they seek to retain their jobs is a bit like asking a chronic gambler to manage your money.

For centuries, political thinkers ranging from James Madison to Alexis de Tocqueville have recognized that democracy - with its potential for unchecked majority rule - may lead to certain excesses. Madison, in particular, thought that one solution to this problem was to allow society's various "factions" - today we call them "special interests" - to offset one another.

That best happens when all are permitted to fully participate in the public debate.

"Corporations" and even "the wealthy" are not a monolithic interest. As we have seen in recent years, both Democrats and Republicans and both conservatives and liberals have successfully raised large sums of money. In addition, the Internet has increased the significance of small donors. No one faction is likely to dominate the political debate. No significant voice is unlikely to be heard.

As Justice Samuel Alito recently observed, candidates and factions all have different advantages. These might include wealth, incumbency, celebrity, intensity of interest and populist appeal. It is for voters - not the state - to decide which are and are not "legitimate."

In a recent article in an academic journal, I argued that campaign finance reform had turned into a never-ending game of Whack-A-Mole in which the moles always win. Efforts to stop spending "here" inevitably lead to more spending "there." Every "reform" is swamped by unintended consequences.

In the end, the only way to truly level the playing field is censorship managed by one side in the game. During oral argument in Citizens United, the government argued that - in the interests of "reform" - Congress could prohibit corporations from publishing books critical of candidates for federal office.

That scared me. That scared the court.

Citizens United is the result.

Rick Esenberg is professor of law at Marquette University Law School and blogs at Shark and Shepherd. He is a community columnist for the Milwaukee Journal-Sentinel, where this essay first appeared.

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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.