The Limits of Personhood

Intellectually, I understand the argument the Supreme Court has been making lately regarding limits on corporate spending in an election. And if I’m honest, I have to admit that they have a point, that there was a potentially dangerous precedent being set in the original language of McCain-Feingold. (I’ll get to that in a minute.) But we’ve already seen one example of corporate spending run amok in the California battle over Proposition 16, and it won’t be the last by any means.

The recent Citizens United decision revolves around the question of whether a corporation has the same nearly-unlimited right to free speech that an individual person does. Specifically, an organization wanted to run a documentary called Hillary: The Movie on DirecTV during the 2008 primary season. There was general agreement that this film was more anti-Hillary propaganda than actual documentary, so the lower courts blocked it (and commercials advertising it) from being broadcast. Personally, and I say this without having actually seen Hillary: The Movie, I think they should have just let the movie be broadcast and relied on the marketplace to determine its value as a piece of election propaganda. If it was a bad movie, which it probably was, no one’s gonna care and it won’t make much impact beyond those who already agree with its viewpoint. (There have been, for instance, several attempts to balance Michael Moore’s documentaries with ones from the conservative side of the fence--they all fail because, simply enough, the documentarians aren’t half as good at it as Michael Moore is. Content is content, but content plus quality is one helluva combination.)

But once the case reached the Supreme Court, following the lead of First Amendment activists like Laurence Tribe (who argued on behalf of Citizens United), a majority of justices decided, in a marked change of position, that yes, money equals speech and speech is protected and if a corporation has a lot of money then they get to have a whole lot of protected free speech. Meaning that they can electioneer however they want to, as much as they want to. Those who worry about the effects of big-money donations on elections and governance turned twenty shades of pale.

See, the thing is, there have always been limits on corporate speech, just as there are limits on individual speech (the famous “Don’t shout ‘Fire!’ in a crowded theatre exception, for instance). And chief among the limits on corporate speech has been a limitation on corporate electioneering.

When I ran a non-profit theatre company, we were able to avoid a host of regulations and requirements simply because we never indulged in electioneering, that is to say, we never advocated for or against any one candidate, party or position. And that was perfectly fine with me: as an individual I can support whomever I want, but I see no reason why any company with which I’m involved should also get involved in the political process. Companies, after all, are in the end collections of individuals, and each of those individuals has, as a birthright, a vote in every election held after he or she reaches the age of majority. (By the way: denying the vote to someone under 18 is another limitation on an individual’s free speech that we all accept.) But extending that right to my company seems like it would effectively double my vote in a way that is blatantly unfair.

Here’s the obvious example. If a corporation, as a person, is entitled to all of a person’s rights, then shouldn’t a corporation be allowed to step into a booth and vote? (Even weirder: could a corporation get married?) And what if the corporation is a conglomerate with lots of subsidiaries? Does American Express Company get a vote, and American Express Bank FSB, and so on? Assuming each entity gets a single vote (the “one man/one vote” principle), who actually decides upon and casts that vote? If Joe CEO is designated the vote-maker for a corporation, the one who actually goes into the booth and casts a vote, then he is also entitled, as an individual, to go into that same booth and cast his own vote. Now, suddenly we’ve violated the principle: now it’s one man with two votes.

So this notion of corporate personhood must have some limitation (particularly since corporations are essentially eternal and never die, thus differentiating them yet further from mere mortals), and it simply becomes a question of deciding which limitations we want to impose. I would not for a second suggest that corporations be barred from the same rights against illegal search and seizure that apply to individuals, for instance--but why can’t we carve out the whole issue of elections as an area where corporate personhood has specific limits? Just as we’ve always done.

(It must be admitted that there have always been ways for corporations to get around these rules. All they have to do is create a Political Action Committee and give it a lot of money, and that entity does the actual electioneering, thus neatly bypassing the prohibitions in McCain-Feingold. Prop 16 was sponsored by a PAC called Californians to Protect Our Right to Vote, which of course got most of its money from Pacific Gas & Electric. But that’s just a loophole, and it can be closed--if the entire principle is deemed unconstitutional, however, there’s no way to close the floodgates without an amendment to the U.S. Constitution, which is a mighty high wall to climb.)

The question then becomes, if we have for our entire history carved out this limitation on corporate personhood, why make a change now? Why is it that the Citizens United decision was so quickly followed by an order in the McComish matter, just this week, that blocked the State of Arizona from providing matching funds to candidates who have opted into their Clean Elections program? (It’s a public-financing program designed to reduce the impact of big-money donations.)

The court sure seems to have decided that there are no limits on corporate personhood--but they also seem to have decided that local governments, even though they too are organizations of individuals much like corporations, are limited. After all, if the State of Arizona has decided it’s in the public interest to provide a voluntary program offering financing to individuals running for elected office, provided they agree not to accept corporate money, then the court saying that program must be stopped would surely destroy the state’s right to free speech as well, wouldn’t it?

Thus, even as the Supremes extend the notion of personhood in one direction, they seem to be choking it off in another--and both instances heavily favor corporations. Clearly, something is seriously wrong there.

But here’s the problem.

If we decide that a corporation can’t electioneer, then what are we to do with advocacy groups like MoveOn.org on the left or The Howard Jarvis Taxpayers Association on the right? They electioneer all the time, that’s pretty much their whole reason for being. The original language of McCain-Feingold suggests that any and all electioneering, by any form of corporation or union, within thirty days of an election must be prohibited. Non-profits like MoveOn.org would definitely be included in that ban, if I’m reading it correctly. And the argument made before the Supreme Court was that the ban could be extended to any form of communication, including books and emails. Would Random House be prohibited from selling already-printed copies of books about Hillary Clinton if she was running for office? And would every item of that sort have to be screened by some panel to determined whether it amounted to electioneering? So I can see why the court was a little taken aback by that--but I also think their reaction was a bit much.

Because again, it’s about balance. The limitation on corporate electioneering we’ve always had is not an absolute, black-and-white sort of deal; rather, if you decide your organization is going into that business, then a whole host of new regulations and requirements will arise to govern your conduct. The Howard Jarvis organization can present materials to the public advocating a position, but it will have to abide by the rules. My old theatre company, however, can ignore those rules because it never does any electioneering. It’s a status quo that constantly needs adjustment and refinement, and certainly that’s annoying, and there will always be cases that test the limits of the various restrictions in place, just as Hillary: The Movie did. But I see no reason to entirely throw over those restrictions entirely just because, from to time, they get a little tricky.

And that’s exactly what the Roberts court did: Citizens United actually afforded them an opportunity to make a narrow decision only affecting the question of whether the documentary could be shown, without upsetting a couple centuries of precedent. But Roberts and his cohorts, completely belying the whole notion of judicial restraint they supposedly care so much about, went out of their way to do exactly that, to overturn an entire host of well-established precedents. To declare, boldly, that corporations are now free to say whatever the hell they want, and to spend as much money as they want in order to do that. One man/one vote was chucked right out the window.

I can’t escape the impression that there is a whopper of a lie being told here, when the Court says it’s looking out for everyone’s free-speech rights by making those rights as broad as possible, when in fact the real consequence is that corporations will be able to drown out free, protected speech by ordinary citizens who can’t hope to match a corporation’s resources. And here’s where Prop 16 serves as such a potent example: Pacific Gas & Electric spent something like $46 million flooding the airwaves with commercials that were well-crafted lies; their opponents were able to spend about a buck-fifty trying to counter those arguments.

You might well argue here that Prop 16 lost. And yes, it did. PG&E was defeated. They spent a ton of money and they lost. So surely this notion of corporate spending isn’t such a big deal. But remember, the measure lost by a very narrow margin, as I noted the other day. An utter falsehood that was transparent to a lot of people at first glance still drew 48% of the vote. It should have been laughed out of the room; instead it got nearly two million votes.

Don’t for a second think that the PG&Es of the world will look at this example and decide they shouldn’t bother trying anymore. They’ll simply spend more money next time. They’ll refine their propaganda techniques. They will lose some battles, but they’ll probably win more than they lose, and then you’ll find that you’re living in a world where your voice, your vote means nothing and the corporations get to do whatever the hell they damn well please, because they control the election process.

We’re close enough to that scary place already. I dread the thought of moving even farther in that direction.