Last night, as I stumbled home from the frigid Saint's parade, I thought about the problematic manner in which Progressive frame the recent Citizen's United decision. I keep coming across arguments against the personhood of corporations - and they drive me insane. First, it completely misunderstands the issue. The question is whether we can use our property as speech. And that seems undeniable. But it has nothing to do with treating corporations like persons. Second, misunderstanding the problem makes progressives look untrustworthy. No one thinks corporations are persons. And when the public realizes that this is not what is going on, they'll see progressives as sophists, constructing arguments out of the air.
So it is imperative that progressives understand the problem with the proper framework. That way we can provide proper, clear responses to civil libertarians without talking past each other. After all, civil libertarians and progressives usually agree. And I don't hold progressives as the only ones to blame. Although progressive haven't framed their issue well, it appears that civil libertarians are often relying on a superficial understanding of the First Amendment.
Precedence is usually ignored by the civil libertarian, since they often take the First Amendment to be straightforward. The problem is that it is not straight forward. Even if we grant you a right to use your property for political speech, the question of what constitutes your property is not obvious. The example I thought of last night was religion. Citizens might incorporate (or not) their religious institution; the religious institution is the property of the congregation. Yet we have clear laws that restrict the presence of political speech in religious worship. While they can take a stand on social issues, they cannot endorse candidates. Otherwise, and this is the key point, they risk their religious tax exemption.
While the church is the property of its congregation, it also holds a special contractual relationship with the government. The government, then, has a stake in the church. Not such that it owns the church, but insofar as it grants them special rights - rights which allow the churches to flourish where they might otherwise fall under the weight of business taxes. Churches don't have to operate like a business because the congregation doesn't share the full burdens of ownership. Similarly for corporations.
Progressive needs to be following the arguments and examples set out by constitutional lawyers such as Lawrence Lessig. For example, in this article Lessig draws together a number of important points by looking at cases in supreme court precedence. His argument takes the form I'd been thinking through, looking at similar cases were we allow the government to restrict speech acts, and then comparing those cases with corporate speech.
First, look at an institution where we have allowed the government to restrict speech acts:
Then compare it to the corporation:
So it seems that the progressive argument against Citizen's United is getting strong. Greenwald, my favorite civil libertarian, notes Lessig's argument and will hopefully write a response soon.
To me, Lessig's argument seems strong. While it is filled out with legal facts, the argument itself is one that I, a layperson, could arrive at on my own. It gets to the heart of the matter without being rhetorically complex. And, most importantly, it doesn't rely on the false argument about the personhood of corporations.
Shorter Lessig:
The government gives fiscal rights to corporations, so it has a stake in their political speech.
So it is imperative that progressives understand the problem with the proper framework. That way we can provide proper, clear responses to civil libertarians without talking past each other. After all, civil libertarians and progressives usually agree. And I don't hold progressives as the only ones to blame. Although progressive haven't framed their issue well, it appears that civil libertarians are often relying on a superficial understanding of the First Amendment.
Precedence is usually ignored by the civil libertarian, since they often take the First Amendment to be straightforward. The problem is that it is not straight forward. Even if we grant you a right to use your property for political speech, the question of what constitutes your property is not obvious. The example I thought of last night was religion. Citizens might incorporate (or not) their religious institution; the religious institution is the property of the congregation. Yet we have clear laws that restrict the presence of political speech in religious worship. While they can take a stand on social issues, they cannot endorse candidates. Otherwise, and this is the key point, they risk their religious tax exemption.
While the church is the property of its congregation, it also holds a special contractual relationship with the government. The government, then, has a stake in the church. Not such that it owns the church, but insofar as it grants them special rights - rights which allow the churches to flourish where they might otherwise fall under the weight of business taxes. Churches don't have to operate like a business because the congregation doesn't share the full burdens of ownership. Similarly for corporations.
Progressive needs to be following the arguments and examples set out by constitutional lawyers such as Lawrence Lessig. For example, in this article Lessig draws together a number of important points by looking at cases in supreme court precedence. His argument takes the form I'd been thinking through, looking at similar cases were we allow the government to restrict speech acts, and then comparing those cases with corporate speech.
First, look at an institution where we have allowed the government to restrict speech acts:
Yet in 1991, in an opinion by Chief Justice Robert's former boss, Chief Justice Rehnquist, in the case of Rust v. Sullivan, the Court found no First Amendment problem at all with the government's restriction on doctors' speech. Indeed, it wasn't even a difficult case according to the Court ("no question but that the statutory prohibition contained in § 1008 is constitutional.")
Why? How? Well the doctors at issue worked in family planning clinics that had received at least some of their funds from the government. And in exchange for that benefit, the government was free to gag the doctors however it wished.
Then compare it to the corporation:
But of course, corporations do receive a gift from the government. The government limits the legal liability of investors in that corporation in exchange for their risking their capital to spur innovation and growth. That benefit is significant.
So it seems that the progressive argument against Citizen's United is getting strong. Greenwald, my favorite civil libertarian, notes Lessig's argument and will hopefully write a response soon.
To me, Lessig's argument seems strong. While it is filled out with legal facts, the argument itself is one that I, a layperson, could arrive at on my own. It gets to the heart of the matter without being rhetorically complex. And, most importantly, it doesn't rely on the false argument about the personhood of corporations.
Shorter Lessig:
The government gives fiscal rights to corporations, so it has a stake in their political speech.
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