Wednesday, January 18, 2012

A Gillette-Torvik Conversation™: The Montana Corporate Speech Case — PART THREE

[Here are parts one and two.]

TORVIK:  Before I answer your specific questions, I want to discuss the Montana history lesson you mention. I too was amazed by the account of gilded-age corruption in Montana.  But while I was reading it, I kept asking myself: why does this matter? None of it had anything to do, I'd submit, with electioneering by corporations. Instead, it appears that some rich guy had everybody in the state of Montana on the take. This isn't some indirect corruption caused by the implicit purchase of votes through campaign contributions.  It's straight up corruption—bribery, direct payments, etc. (In Chicago, where I live, this is called Tuesday.)  

How does any of this history support the statute? Is the idea that because some people who got rich running corporations engaged in corrupt practices that all corporation must be excluded from making direct campaign contributions? Or what? I just don't get it.

The opinion also goes on at length about the governmental interest in protecting the appearance of an impartial judiciary. Again: so what? Most states have specific rules about judicial elections that address these concerns head on. The legal term for that is "narrow tailoring." The court attempts to address this concept in ¶ 47, but it is a D-minus effort at best. Instead of actually talking about whether the statute is narrowly tailored to address the identified governmental interests, it cursorily states that the effects of the statute on the plaintiff's speech are merely minimal. But that really isn't the point. The issue is whether the legislature could have accomplished the same goals by using less speech-restricting methods.  

The answer is a clear yes. If corruption in the form of bribery is really the interest—as you suggest—that interest can be addressed by laws that outlaw bribery and such corrupt practices. But Montana surely already has such laws. This is why the issue normally raised in these cases is not actual corruption, but the appearance of corruption. It's hard to see how limiting a corporations ability to spend money on politics prevents actual corruption. On the contrary, it would seem to prevent it by taking the money that would otherwise go to fund bribes and using it buy slimy ads. Or something.

And if the sanctity of judicial elections is the sacred cow, come up with special rules for judicial elections.

Now, on to your questions.

1)  Should spending money on politics be considered a form of speech? Yes. If it weren't, then content-based restrictions on campaign contributions and expenditures would be permitted under the First Amendment. For example, a law that said, "You may donate to Republicans, but not Democrats" would presumably be constitutional unless the First Amendment protects campaign donations as a form of speech. Or consider a law that allowed corporations to donate to Democrats but not Republicans. Unless corporations have free speech rights and campaign donations are a form of speech, such a law would presumably be constitutional.

2)  Is more speech always better? Perhaps not, but what is the alternative? Who decides when to restrict, and how do we determine whether such restrictions are legitimate? A free-for-all marketplace of ideas strikes me as superior to any conceivable alternative. Moreover, we just can't be afraid of speech. Because either people can handle free speech or they can't. And if they can't—if the polis is so easily duped, overwhelmed, or discouraged by "bad" speech"—then the republican form of government is doomed anyhow. So if we are going down, I'd prefer we go down fighting and free rather than surrendering to the idea that human beings are fundamentally incapable of self-government.



  1. Dear Adam and Bart;

    Pardon me if I intrude, but you did include that “comments” link. This is a topic near and dear to my heart.

    “Should spending money on politics be considered a form of speech?” No. No more than child porn should be. Speech is speech, or the generation of materials covered by Freedom of the Press. One or the other. Spending money is an action that does not equate to speech. In this instance, it is bribery.

    “If it weren't, then content-based restrictions on campaign contributions and expenditures would be permitted under the First Amendment.” Um, no. That’s like saying content-based extortion or violence should be protected under the First Amendment. Criminal conduct in the furtherance of an idea is still prohibitable. And it should be clear I think financial inducements given to politicians is or should be regarded as criminal conduct. And the acceptance thereof.

    If we decided that these financial inducements are not criminal: although the First Amendment might not prevent laws banning contributions to “disfavored” political parties, the Fourteenth Amendment’s Equal Protection clause most probably would.

    The deficiency of current bribery statutes is that they are usually out of date. They require a specific quid pro quo. $X were given to gain item Y. However, since forever, but certainly in this Millennia, bribery consists of putting money “on account” for services to be named later. Campaign contributions are essentially retainers. There is no express connection between the quid and the quo. If bribery laws were modernized to reflect this reality, then there would be less concern about this matter.

    Are corporations “persons” within the intent of the Bill of Rights? Well, I agree with the snarky comments floating around the internet: I’ll believe they are when Texas executes one. But being a flexible person, I’d settle for an execution in Georgia or Florida, or wherever they do such things.

    sean s.

    1. Thanks for joining the Conversation™, Sean.

      Of course, money is not speech. But surely television advertisement, books, newspapers ads, and films are. And surely a law that prohibited natural people (i.e. human beings) from publishing books, making films, or running ads supporting or criticizing candidates for office would be a restriction on free speech. So the real question is whether restrictions on how much money people can spend to publish such books or buy such ads are also a restriction on free speech. I think it is, and Supreme Court agrees with me. Of course, not all restrictions on free speech are unreasonable, but I don't think it makes sense to deny that a law limiting how much money people can spend to amplify their political speech is a law that abridges the freedom of speech.

      (Of note, the government admitted during the supreme court oral argument for Citizens United that the provision of McCain-Feingold at issue would prevent a corporation from publishing a book critical of a candidate for office.)

      As to the substance of your comment, I think you are rigging the game by speaking in terms of "financial inducements." It is still illegal for corporations to contribute money to candidates. (See, e.g., At issue in these cases are independent expenditures. So the question is whether corporations can use their money to buy ads, print pamphlets, etc., to urge people to vote for against particular candidates. Whatever you think of how the First Amendment cases answer this question, it is an extreme stretch to call that activity "criminal." That's frankly just hyperbole. If it were criminal, why would it be any different for individuals—who, after all, are allowed to contribute money directly into a candidate's campaign bank account?

      Ultimately, I think you are far too cynical to be persuasive here. Politicians don't get rich or get any particular personal reward when corporations or individuals spend money electioneering on their behalf. At best it helps them get elected, and then naturally they will likely side with the people who helped to get them elected--but even more naturally people and corporations aren't going to help elect people who they don't think are already on their side. Labeling any attempt to use money to help elect people who agree with you "bribery" renders the term meaningless. I certainly fear the state you seems to desire, where such "bribery" prosecutions are rampant.

      Anyhow, here's a question for you: Can Congress pass a law outlawing campaign contributions by individuals to people running for Congress as Socialists? If not, why not?

    2. sorry I overlooked the "reply" link ...

    3. I don't really like nested comments anyhow.

  2. Even in the arena of “independent” expenditures, banning corporate involvement in political campaigns is not a threat to the rights of “natural” persons. The individuals who make up the corporation (shareholders and employees) retain their rights to participation; denying the corporation participation harms no natural person’s rights.

    Natural persons have, since the beginning had the right to publish ads, pamphlets, books, etc. Corporations have been involved as publishers and broadcasters all along because natural persons need their services to effectively exercise their rights. If a corporation “wants” to publish a book (which is to say the natural persons who make up the corporation want to), those natural persons have always been able to do so. Nothing is gained by the fiction of the corporation as the author of the book (or ad, or whatever.) Corporate involvement in campaigns AS PERSONS is NOT necessary for the effective exercise of Individual rights of natural persons.

    Further, treating corporations as persons also creates another problem: for whom does the corporation speak? If the corporation spends money on partisan or political matters, shareholders and employees who oppose the corporate position are compelled to support something they oppose, or give up their relationship to the corporation. This seems a violation of their liberty. It also would change the relationship between the corporation and the person from an economic one by adding a partisan support element. So treating corporations as persons on political matters is unnecessary for anyone and harmful for some.

    Finally, although it is CURRENTLY illegal for corporations to contribute to candidates, if the doctrine of Citzens United is at all coherent, then eventually they will be. Then we will have the question of the rights of corporate contributions from foreign corporations.

    In summary: treating corporations as persons in this area of activity adds nothing and creates new problems. Better to jettison this fiction.

    Let me be clear about one thing: above a very minimal threshold, financial inducements to politicians even from natural persons should be criminal. I mentioned it only because part of the logic of Citizens United is the affirmation of “money as speech” doctrine, which is bizarre and corrupting.

    Perhaps I am cynical about the wealth-aggregating aspects of being a politician, or perhaps you are too trusting. The relation between campaign contributions and political influence is, I think, well established.

    To your question. “Can Congress pass a law outlawing campaign contributions by individuals to people running for Congress as Socialists? If not, why not?”

    If the ban affects only campaign contributions to socialists, then No, it is unconstitutional by way of the Fourteenth Amendment’s Equal Protection clause.

    Can Congress pass a law outlawing all campaign contributions by individuals to any and all people running for Congress? This survives Equal Protection analysis but hangs on Free Speech analysis: is banning ALL contributions too broad to satisfy a Compelling State interest? I am uncertain.

    Can Congress pass a law severely limiting all campaign contributions by individuals to any and all people running for Congress, and regarding excess “contributions” as bribery? I think a compelling state interest (preserving the integrity and honesty of the political process) exists and is suitably met by a severe limitation but not an outright ban.

    sean s.

    1. (posted again to fix a typo)

      First, a quibble: the Equal Protection clause doesn't apply to Congress, only to the states. But the Fifth Amendment's due process clause does similar work. So the question would be whether a discriminatory ban on contributions to socialists is so unjustifiable as to amount to a denial of due process. Presumably a partial ban on bribery would not rise to that level. Less cheekily, without an underlying principle worth protecting -- and I'd submit that principle is free speech -- discriminatory or content-based restrictions aren't suspect.

      The case I cited from the 8th Circuit deals directly with the question of corporate campaign contribution and finds Minnesota's law prohibiting them kosher under Citizens United. Perhaps the Supreme Court will disagree, but the 8th Circuit is a very conservative court.

      As for foreign corporations, the Supreme Court recently affirmed a three-judge district court order upholding the federal law banning donations by foreign nationals. See:

      I don't find it bizarre or corrupting that the First Amendment protects the use of money to amplify speech. Nor do I think it's ridiculous that corporations -- conglomerations of people, after all -- have constitutional certain rights. I think it is wishful thinking and overly simplistic to deny either of these things -- and neither of them were new holdings (or even contested) in Citizens United. The real controversy is more along the lines of the analysis in your last couple of paragraphs -- what are the compelling interests that override the free speech rights of corporations (and individuals)? Clearly there are, as CItizens United itself upheld certain speech-burdening restrictions. It is in those judgments where all the real, difficult questions are -- not in bumper sticker sentiments like "money isn't speech" and "corporations aren't people."


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