Diary: The Missing Argument

While I was listening to the Elena Kagan confirmation hearing, I heard her make a one sentence summary of the issues of the infamous "Citizens United" Supreme Court case. She said something close to "We [meaning the Dept. of Justice] argued that unlimited corporate electioneering would create a serious potential for corruption in government, but on the other hand there is the issue of free speech".

Unfortunately for the outcome of the case, the threat of corruption by large amounts of money was the only issue brought by those opposed to overturning McCain-Feingold and associated law. The arguing attorneys failed to muster what is likely the most significant argument--that the speech of for-profit corporations is by law commercial speech. That there is a legally enforced difference in the quality of for-profit corporate speech versus individual speech or the speech of issue organizations. That the officers of such corporations are bound by law to restrict use of the resources of the corporation to advance the bottomline for the benefit of the shareholders.

There are few, if any, human beings whose sole interest in the actions of their government is how it affects the profitability of their employer. Therefore such electioneering inevitably and by law is a distortion, not a true expression, of most of the individuals supervising the spending. The former limit of corporate election spending via PACs was designed to solve that problem by, at least in theory, using only voluntary donations of employees who knew how it would be used. On the other hand, people may buy shares in a for-profit health insurance company on the basis of good past financial performance, expecting similar earnings in the future. While they would expect the company to lobby the gov't in the interest of profit, they don't necessarily expect that their money will be used to campaign against the re-election of state legislators who supported certain insurance regulations. These shareholders may even support the incumbents for reasons entirely separate from their positions on insurance-related matters. So this campaign spending is certainly not the free speech of these investors. In addition, all the aforementioned individuals--the corporate management and the investors, either individually or in concert w/ like-minded citizens through PACs--already had the protected right to engage freely in election campaigns of their choice before the Citizens United decision. They had that right even when a major factor in their decisions about whom they support is how election of a candidate will impact their earnings, because they are also free to use other issues that impact them and theirs in their decision. As human beings, their decisions are not legally restricted to a single portion of their interests.

It is this difference in the legally determined quality of the speech of corporations, not the size of their purses, that gives it no place in determining who represents the citizens of the U.S.. The elected representatives will be deciding on the major realities of public life, and some of their decisions may involve choices that might adversely impact some corporate earnings in the short term while providing conditions essential to the well-being of the citizenry in the long term. Individuals have the freedom to promote such choices. For-profit corporations don't. It is a tragedy that this argument was not even raised.