Personal tools
 
Views

Debate: Corporate free speech

From Debatepedia

Revision as of 16:19, 19 October 2010; Brooks Lindsay (Talk | contribs)
(diff) ←Older revision | Current revision | Newer revision→ (diff)
Jump to: navigation, search
[Digg]
[reddit]
[Delicious]
[Facebook]

Do corps. have a right to free speech and to spend w/o limit in elections?

Background and context

Citizens United v. Federal Election Commission, 558 U.S. ___ (2010), is a landmark 5-to-4 decision by the United States Supreme Court that corporate funding of independent political broadcasts in candidate elections cannot be limited, because doing so would be in noncompliance with the First Amendment. The decision resulted from the non-profit corporation Citizens United's case before the court regarding whether the group's film -
Hillary: The Movie - could be considered a campaign advertisement under the 2002 Bipartisan Campaign Reform Act, commonly known as the McCain-Feingold Act, and whether subsequent restrictions under the law on such direct advertisement spending could be justified. The Court's decision struck down a provision of the McCain-Feingold Act that banned for-profit and not-for-profit corporations and unions from broadcasting “electioneering communications” in the 30 days before a presidential primary and in the 60 days before the general elections. The decision also completely overruled Austin v. Michigan Chamber of Commerce (1990) and partially overruled McConnell v. Federal Election Commission (2003). The decision upheld the requirements for disclaimer and disclosure by sponsors of advertisements, and the ban on direct contributions from corporations or unions to candidates, in part IV. The decision has been met with significant debate. Of particular note, was President Obama's opposition in his January 24, 2010 State of the Union where he said: "Last week, the Supreme Court reversed a century of law to open the floodgates for special interests—including foreign corporations—to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that's why I'm urging Democrats and Republicans to pass a bill that helps..." [1] These arguments and others are documented below.

See the Supreme Court's January 21, 2010 majority opinion on Citizens United vs Federal Election Commission here, and Wikipedia's article on the topic here.

[Edit]
[Delete Subquestion section]
[Add new subquestion section]
[Move subquestion section down]

Free speech: Does unlimited spending uphold free speech?

[Add New]

Pro

  • Limiting corp spending is slippery slope against free speech Chief Justice Roberts said that limitations on an anti-Clinton movie called "Hillary: the Movie." before the 2008 primary elections would lead to broader restrictions: "would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern."[3]
  • Spending limits foster equal not free speech Cato Institute researchers John Samples and Ilya Shapiro wrote that restrictions on advertising were based on the idea "that corporations had so much money that their spending would create vast inequalities in speech that would undermine democracy." However, "to make campaign spending equal or nearly so, the government would have to force some people or groups to spend less than they wished. And equality of speech is inherently contrary to protecting speech from government restraint, which is ultimately the heart of American conceptions of free speech."[4]
  • Why limit speech of corporations, but not individuals? Anthony Dick in The National Review wrote: "is there something uniquely harmful and/or unworthy of protection about political messages that come from corporations and unions, as opposed to, say, rich individuals, persuasive writers, or charismatic demagogues?" [5]
  • Govt has no authority to selectively offer free speech Floyd Abrams, a well-known progressive First Amendment lawyer, argued for lifting restrictions on corporate speech/spending in elections in Citizens United vs Federal Election Commission: "We should not make technical distinctions about the degree of First Amendment speech" rights, depending on the nature of the entity that engages in the speech –– we [would] then go down the road to start defining press entities which will get the protection [and] speech entities which will not get the protection, and I don’t think that’s a place we want to be."[6]
  • General statements in support of Citizens United Citizens United, the group filing the lawsuit in the 2010 SCOTUS case: "Today's U.S. Supreme Court decision allowing Citizens United to air its documentary films and advertisements is a tremendous victory, not only for Citizens United but for every American who desires to participate in the political process."


[Add New]

Con

  • Free speech does not apply equally to companies "The Court's blow to democracy." New York Times Editorial. January 21, 2010: "The founders of this nation warned about the dangers of corporate influence. The Constitution they wrote mentions many things and assigns them rights and protections — the people, militias, the press, religions. But it does not mention corporations. [...] Most wrongheaded of all [in the Supreme Court's 2010 decision] is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money. They are given special privileges, including different tax rates, to do just that. It was a fundamental misreading of the Constitution to say that these artificial legal constructs have the same right to spend money on politics as ordinary Americans have to speak out in support of a candidate."
  • Corporate spending doesn't count as "speech" Free speech is protected under the Constitution, meaning anyone can say what they want. But, spending unlimited amounts of money to propagate a message, intimidate candidates, and sway elections is not protected. In other words, corporate speakers do have some free speech rights to develop an election ad (through such things as PACs), but not to then spend unlimited amounts of money to propagate their message.
  • Spending limits protect voter voices from being priced-out Karen Finney. Democratic consultant and commentator; former spokesman for the Democratic National Committee, wrote in a January 24, 2010 Washington Post piece: "In a decision that supposedly ruled on the side of free speech, the court actually put a price tag on that speech. A price tag that could result in the voices of individual Americans being priced out of their ability to actually be heard, as millions of dollars from multinational corporations can now be spent to tip the scales in an American election."[7]
  • Corps focus on profits, not eligible for rights Tom Stites. "How corporations became persons." UU World: "Democracy expresses the collective consciences of citizens. However noble or flawed its message, this is how our nation's moral voice is heard. [...] Corporations express the collective investment goals of shareholders. The legal stricture known as fiduciary responsibility confines all but closely held corporations to this singular goal. By shutting off other values to focus solely on pursuit of profit in inherently amoral economic competition, corporations are by their nature amoral as well. Despite image-enhancing claims of corporate citizenship, they have no consciences to express, only earnings per share. They differ from people not only in form and size but, most importantly, in their fundamental character: People including corporate executives, employees, and shareholders—have inherent worth and dignity; corporations in and of themselves do not."
[Edit]
[Delete Subquestion section]
[Add new subquestion section]
[Move subquestion section down]
[Move subquestion section up]

Media: If media has free speech right, shouldn't corps as well?

[Add New]

Pro


[Add New]

Con


[Edit]
[Delete Subquestion section]
[Add new subquestion section]
[Move subquestion section down]
[Move subquestion section up]

Associations: Does unlimited spending foster right to speech in assoc.?

[Add New]

Pro

  • Corp. spending limits infringe free speech in assoc. Justice Antonin Scalia stated that Justice John Paul Stevens dissent against the Citizens United ruling was "in splendid isolation from the text of the First Amendment. It never shows why 'the freedom of speech' that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form."[9]


[Add New]

Con

  • Corporations are no form of free association/speech The constitutional law scholar Laurence H. Tribe: "Talking about a business corporation as merely another way that individuals might choose to organize their association with one another to pursue their common expressive aims is worse than unrealistic; it obscures the very real injustice and distortion entailed in the phenomenon of some people using other people’s money to support candidates they have made no decision to support, or to oppose candidates they have made no decision to oppose."[10]
  • Corporate spending in elections violates shareholder rights Trevor Potter, former Chairman with the Federal Election Commission and General Counsel of John McCain’s 2000 and 2008 Presidential campaigns, submitted a legal brief in favor of limiting corporate spending: He said: "Everybody has the ability to participate in the political process, meaning the election or defeat of candidates, except the for-profit corporations using shareholders’ treasury funds. That, it seems to me, is an appropriately narrow exemption given whose money that is, the shareholders’."[11]
[Edit]
[Delete Subquestion section]
[Add new subquestion section]
[Move subquestion section down]
[Move subquestion section up]

Democracy: What will the effect be on elections/democracy?

[Add New]

Pro

  • Corporate free speech enhances the public debate Citizens United vs. Federal Election Commission 5-4 Majority Opinion of the Court: "Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster” (quoting Bel-lotti, 435 U. S., at 783)). The Court has thus rejected theargument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not “natural persons.” [...] it is our law and our tradition that more speech, not less, is the governing rule."
  • Corporate free speech helps check government power "Corporate Free Speech." Republicans and Conservatives Archives. January 23, 2010: "It is understandable that there is opposition to this concept, particularly from those who have no conception of the corporate power of government. [Yet], I wholeheartedly support the Supreme court's decision lifting limits of corporate free speech. We have a great national corporation able to speak freely on behalf of its desire for power. It would be suicidal for us to limit our responses to such a concentration of expression to a cacophany on individual voices or to eschew an effective tool by which many individuals can focus their voices into harmonious opposition."
  • Corp election spending limited by transparency laws Kenneth Gross. Leads the political law practice at Skadden Arps; former associate general counsel of the Federal Election Commission. Wrote in a January 24, 2010 Washington Post piece[12]: "Also, many corporations have already signed on to transparency agreements regarding political spending. So, funding by publicly held corporations of groups trying to disguise their mission will be few and far between. This may not be the popular, prevailing view of the implications of the Citizens case -- but it is likely to be at least the short-term reality."[13]
  • Citizens United decision does not allow spending on campaigns Jon Witold Baran. "Stamped Toward Democracy." Washington Post. January 25, 2010: "Will corporations and unions be able to give money to candidates or political parties? No. Federal law, which regulates campaigns for president, the Senate and the House, prohibits such contributions. The ban was left untouched by the Supreme Court. Can corporations spend money in cahoots with candidates and political parties? No. The Supreme Court decision addressed only 'independent expenditures,' which are, by definition, 'not coordinated with a candidate.' Monies spent in collaboration with candidates or parties are treated as contributions — and are still banned."


[Add New]

Con

  • Unlimited spending allows special interests to dominate elections President Barack Obama called the Supreme Court's Citizens Union decision in his 2010 January State of the Union address: "With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington--while undermining the influence of average Americans who make small contributions to support their preferred candidates. "[14]
  • Corporate free speech protects govt of/by/for people Karen Finney. Democratic consultant and commentator; former spokesman for the Democratic National Committee, wrote in a January 24, 2010 Washington Post piece: "At the very moment Americans' mistrust of big corporations, big government and large institutions has reached a fever pitch, the Supreme Court moved to replace a government of, for and by the people with a government that can be bought and paid for by just about any major corporation -- from Exxon to Russian-owned Lukoil to China's CPC Corp."[15]
  • Citizens United illogically increases money in elections Justice Stevens, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor dissented from the majority ruling on Citizens United, arguing: "At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics."[16]
  • Citizens United ruling pretends corporate spending doesn't corrupt The Christian Science Monitor wrote that the Court had declared, mockingly: "Roberts Court declares outright that corporate expenditures cannot corrupt elected officials, that influence over lawmakers is not corruption, and that appearance of influence will not undermine public faith in our democracy."[17]
  • Unlimited spending lets corporations intimidate unwanted laws Jody Grage, treasurer of the Green Party, stated "The decision [...] cancels the idea that candidates run for public office to serve the public interest. The ruling will help block government measures to curb global warming, regulation of financial firms, health care reform, consumer rights, and all other protections for 'We the People' against corporate power."[18]
  • Corporate spending used to fight election regulations Justice John Paul Stevens said in January of 2010 in a dissenting opinion following the Supreme Court's 5-4 vote to allow unlimited corporate spending in elections: "cripple the ability of ordinary citizens, Congress and the states to adopt even limited measures to protect against corporate domination of the electoral process."[19]
  • Unlimited corporate spending in elections threatens democracy Justice Stevens, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor joined in dissenting from the Citizen United ruling, arguing that the Court's ruling "threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution."[20]


[Edit]
[Delete Subquestion section]
[Add new subquestion section]
[Move subquestion section down]
[Move subquestion section up]

Candidate intimidation: Does allow for candidate intimidation?

[Add New]

Pro

  • Unlimited spending lets candidates focus on message over fundraising. One of the main problems in elections is that candidates are typically strapped for cash, and often must spend the majority of their time fundraising, instead of focusing on their message. Unlimited corporate spending, in addition to unlimited political party spending and individual donorship would allow candidates to focus on their message, the changes they want to make, their plans for governing or voting while in office, and on informing the general public about these plans so that they can make a more informed decision about their vote.
  • Unlimited spending breaks stranglehold of incumbents Capital University Law School professor Bradley A. Smith, a former chair of the Federal Election Commission and a long-term campaign finance reform opponent, wrote that the major opponents of political free speech are "incumbent politicians, shocked by the apparent tectonic shift in politics of late" who "are keen to maintain a chokehold on such speech." Empowering "small and midsize corporations—and every incorporated mom-and-pop falafel joint, local firefighters’ union, and environmental group—to make its voice heard" frightens them because it breaks their damaging stranglehold on existing seats, which exist largely because they are able to raise more money than prospective up-start rivals.
[Add New]

Con

  • Unlimited spending allows corps to intimidate candidates Senator Russell Feingold (D-Wis), co-author of the McCain-Feingold campaign finance legislation, said to the Washington Post in January of 2010: "Oil companies, with virtually no harm to their balance sheets, can now try to "take out" members of Congress who don't toe their company line on energy policy. Foreign-owned companies ¿ even those owned and controlled by other governments ¿ are free to underwrite the candidates of their choice."[21]
  • Unlimited spending engenders corporate-sponsored candidates Anna Burger. Secretary-treasurer of the Service Employees International Union, wrote in a January 24, 2010 piece: "There can be no doubt: The voice of everyday working Americans in the political process will be muted. How can they compete for airtime with the deep pockets of multinational corporations? The court's decision has said loud and clear that Mr. Smith has no business in Washington -- that seat's been sponsored by Wal-Mart."[22]


[Edit]
[Delete Subquestion section]
[Add new subquestion section]
[Move subquestion section down]
[Move subquestion section up]

Unions/advocacy: Does unlimited spending favor unions and advocacy groups too?

[Add New]

Pro

  • Spending limits harm speech of advocacy groups & unions Chicago Tribune editorial board member Steve Chapman wrote: "If corporate advocacy may be forbidden as it was under the law in question, it's not just Exxon Mobil and Citigroup that are rendered mute. Nonprofit corporations set up merely to advance goals shared by citizens, such as the American Civil Liberties Union and the National Rifle Association, also have to put a sock in it. So much for the First Amendment goal of fostering debate about public policy."[23]


[Add New]

Con

  • Citizens United frees unions too, but corps are richer While it is true that the Citizens United vs the Federal Election Commission does free non-profits and unions to spend freely, just as it does for corporations, the difference of course is that corporations (particularly the titans like big-oil companies Exxon Mobil and the big financial firms like Goldman Sachs) have far, far more money. Unions and advocacy groups are already maxing out on the spending front, so freeing them up won't result in much if any of an increase in their spending. Major corporations, however, will be able to increase their spending dramatically as a result of this ruling. It is not fair to say, therefore, that the ruling benefits both groups. It clearly favors corporations.


[Edit]
[Delete Subquestion section]
[Add new subquestion section]
[Move subquestion section down]
[Move subquestion section up]

Radical change? Was Citizens United a modest or radical change?

[Add New]

Pro


[Add New]

Con

[Edit]
[Delete Subquestion section]
[Add new subquestion section]
[Move subquestion section down]
[Move subquestion section up]

Simplicity: Does corporate free speech simplify campaign finance law?

[Add New]

Pro


[Add New]

Con

  • Corporate free speech adds complexity to campaign finance "Corporate Free Speech." Law Offices of Joseph Markowitz. January 21, 2010: "Of one thing we can be certain. This decision opens the door to a lot of new and interesting legal questions, such as whether Congress can devise new restrictions on campaign expenditures without amending the Constitution; whether Congress or the states can re-define what it means to be a corporation so as to limit corporations' ability to participate in electioneering; whether other remedies (e.g., derivative suits, defamation suits) can be pursued against corporations that spend excessively on campaign-related advertising. If government is forced to exit the field, that may leave it up to private parties to fight these and other issues out in the legislatures, the courts and other places."


[Edit]
[Delete Subquestion section]
[Add new subquestion section]
[Move subquestion section down]
[Move subquestion section up]

Foreign control: Can unlimited spending avoid foreign influence?

[Add New]

Pro

  • Status quo already allowed for foreign influence Citizens United vs. Federal Election Commission 5-4 Majority Opinion of the Court: "We need not reach the question whether the Govern-Cite as: 558 U. S. ____ (2010) 47 Opinion of the Court ment has a compelling interest in preventing foreign individuals or associations from influencing our Nation’spolitical process. Cf. 2 U. S. C. §441e (contribution and expenditure ban applied to “foreign national[s]”). Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominatelyby foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Gov-ernment has a compelling interest in limiting foreigninfluence over our political process. See Broadrick, 413 U. S., at 615."
[Add New]

Con

  • Unlimited spending lets foreign corps sway elections Justice John Paul Stevens said in January of 2010 in a dissenting opinion following the US Supreme Court's 5-4 vote to allow unlimited corporate spending in elections: "Under today's decision, multinational corporations controlled by foreign governments" would have the same rights as Americans to spend money to sway U.S. elections, he said.[24]
[Edit]
[Delete Subquestion section]
[Add new subquestion section]
[Move subquestion section down]
[Move subquestion section up]

Favor: Does unlimited corp spending not favor anybody?

[Add New]

Pro

  • Corporate spending breaks media power in elections Cleta Mitchell. "Partner at Foley & Lardner who works in campaign finance law; filed a friend-of-the-court brief in support of Citizens United, on behalf of two advocacy organizations opposing the ban on corporate expenditures: "The Supreme Court has correctly eliminated a constitutionally flawed system that allowed media corporations (e.g., The Washington Post Co.) to freely disseminate their opinions about candidates using corporate treasury funds, while denying that constitutional privilege to Susie's Flower Shop Inc."[25]
  • Unlimited spending frees up advocacy groups in elections Cleta Mitchell. "Partner at Foley & Lardner who works in campaign finance law; filed a friend-of-the-court brief in support of Citizens United, on behalf of two advocacy organizations opposing the ban on corporate expenditures: "The real victims of the corporate expenditure ban have been nonprofit advocacy organizations across the political spectrum. After the 2004 election, the Sierra Club paid a $28,000 fine to the Federal Election Commission for distributing pamphlets in Florida contrasting the environmental records of the two presidential and U.S. Senate candidates. Because the Sierra Club is a corporation, the FEC charged it with making an illegal corporate expenditure."[26]


[Add New]

Con

  • Unfair to free corporate spending, while limiting campaign fundraising Cleta Mitchell. "Partner at Foley & Lardner who works in campaign finance law; filed a friend-of-the-court brief in support of Citizens United, on behalf of two advocacy organizations opposing the ban on corporate expenditures, wrote in a January 24th, 2010 Washington Post article: "Campaigns, corporations and unions can all now spend as much as they want on campaign ads. But campaign finance laws dramatically limit how much candidates (though not corporations or unions) can raise and from whom. Generally, candidates may only accept contributions up to $2,400 per election from individuals and up to $5,000 per election from PACs. In contrast, Citizens United allows corporations and unions to spend unlimited sums attacking or supporting candidates. So picture this: An interest group makes a single phone call to raise $250,000 for attack ads in the waning days of a campaign. The candidate must find more than 100 willing donors, able to give the maximum permissible $2,400 contribution, to answer those ads with an equivalent buy. [...] One solution is for Congress to repeal the limits on how much and from whom candidates can raise money. However, those who see the court's opening of the doors to unlimited corporate spending as a problem are unlikely to see unlimited corporate contributions to candidates as the solution. Rather, Congress should repeal the limits on how much national political parties can spend in coordination with their candidates, which might restore some balance to the system."[27]


[Edit]
[Delete Subquestion section]
[Add new subquestion section]
[Move subquestion section down]
[Move subquestion section up]

Public opinion: Does the public support Citizens United?

[Add New]

Pro

  • Public supports free speech of corporations and unions Anthony Dick in The National Review noted “a recent Gallup poll shows that a majority of the public actually agrees with the Court that corporations and unions should be treated just like individuals in terms of their political-expenditure rights."[28] According to Jordan Fabian, a Gallup poll taken in October 2009 and released soon after the decision showed 57 percent of those surveyed agreed that contributions to political candidates is a form of free speech and 55 percent agreed that the same rules should apply to individuals, corporations and unions. Sixty-four percent of Democrats and Republicans believed campaign donations are a form of free speech.[29]


[Add New]

Con

[Edit]
[Delete Subquestion section]
[Add new subquestion section]
[Move subquestion section up]

Pro/con sources

[Add New]

Pro


[Add New]

Con


See also

External links

Problem with the site? 

Tweet a bug on bugtwits
.