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Hillary doesn’t understand the First Amendment

By Donald A. Downs
Special to Tribune News Service

HILLARY Clinton continues to vow that she’ll undo the Supreme Court’s decision in the 2010 Citizens United case, promising to introduce a constitutional amendment restricting corporate campaign activities if elected president.

This would set a dangerous course, eroding the First Amendment guarantee of freedom of expression.

Clinton and other progressives argue that the 5-4 Supreme Court ruling in Citizens United v. Federal Election Commission was a decision by the court to allow “big money” to influence elections by giving corporations, unions and other groups the same political speech rights as individuals under the First Amendment. Clinton has even suggested that the court used the case to thwart her previous presidential bid.

It’s one thing to criticize Citizens United and hope a different court would overrule the decision — the case is controversial, and the court has overruled its own opinions dozens of times in its history.

It is another thing, however, to open Pandora’s box by passing a formal constitutional amendment creating a specific limit on free speech.

Clinton’s focus on going the amendment route is among a growing and disturbing number of instances in which certain groups of people believe that certain other parties, holding views with which they disagree, are such a threat to society that they should be shut down.

Several left-leaning state attorneys general, for example, are trying to use a 1970 anti-racketeering statute — the Racketeer Influenced and Corrupt Organizations Act, commonly known as RICO — to silence so-called “climate-change deniers,” including energy companies, think tanks, scientists and skeptical media organizations, like the conservative magazine National Review.

The theory underpinning the free speech assault is that these and other well-financed organizations have coordinated efforts in a conspiracy to commit intellectual fraud against the public in order to protect their financial and political interests.

The history of free speech is replete with individuals and groups pursuing their own interests, whether financial or philosophical, in the marketplace of ideas. (Think the Rev. Martin Luther King Jr. and the civil rights movement, Samuel Gompers and the labor movement, Jack Welch and General Electric.)

Such pursuit can be productive so long as countervailing forces are available and willing to check and criticize what they claim, leaving the ultimate determination of truth and virtue up to we the people.

Fortunately, such checking and counter-argument have been alive and well thus far.

Allowing this to change, as Clinton proposes, would give one entity — the government — the power to decide the truth for the rest of us.

An obvious slippery slope comes with this move and nothing would prevent this type of precedent from being used against the other side when a new governing coalition comes to power.

Meanwhile, a bigger question looms: Why aren’t the mainstream media defending the First Amendment, at least as vigilantly as they defend other rights?

As John Stuart Mill maintained in “On Liberty,” even ideas that we believe are 100 percent true need to be challenged in order to keep them vital and open to principled revision. Arguments are always made more credible by having to answer to critics.

In the United States, we don’t silence our critics and those with whom we disagree. We fight them with facts and ideas. The heavy hands of government stay out of the fray.

Donald A. Downs is a research fellow with the Independent Institute and emeritus Alexander Meiklejohn professor of political science at the University of Wisconsin at Madison. He is author of “Restoring Free Speech and Liberty on Campus.


Nothing wrong with restricting corporations

By Dean Baker
Special to Tribune News Service

MOST of us feel deeply about our right to free speech.

It is a right we are born with, one the government cannot take away. But it took an-out-of-control Supreme Court in the Citizens United case to decide that the right to free speech not only applies to individuals but it also applies to corporations.

Therefore, Congress cannot restrict the ability of corporations to contribute to political campaigns because doing so would be restricting free speech.

The basic problem with the court’s argument is that the government creates corporations. They are not natural occurring entities, like human beings.

The government created corporations in order to promote economic growth. Because the government grants corporations limited liability, it is much easier for corporations to raise capital than it is for individuals acting without corporate status. As a result of this setup, a corporation can tell people buying stock they are only risking money spent on the stock.

So, if I buy 100 shares of a company’s stock, and the firm then falls into bankruptcy because business turns bad or the corporation somehow harms its workers, customers, or neighbors, I don’t have to worry about losing my house and my bank account. I can only lose what I paid for my 100 shares of stock.

This would not be true if I bought into a partnership. In that case, I would be personally responsible for any liabilities incurred by the partnership.

For this reason, corporate status is a great privilege that the government makes available in order to make it easier to raise capital.

Having decided to grant this privilege to corporations, it seems more than a bit absurd to argue, as was done in the Citizens United case, that the government can’t set rules restricting the actions of the corporations it has created.

This was exactly the logic expressed by a famous Supreme Court justice in a similar case in 1978. The famous justice was William Rehnquist, who was initially appointed to the court by Richard Nixon. He was later elevated to chief justice by Ronald Reagan.

Rehnquist is almost universally considered a very conservative justice. He didn’t argue against free-speech rights for corporations based on anti-corporate sentiment. He argued based on common sense.

If corporations are restricted in their speech, no person in the world would be prevented from speaking freely.

Of course, corporations have shareholders and also workers, all of whom have the right to say whatever they want and support whatever candidate or political cause they want. The only issue is whether they can use a for-profit corporation to carry out their speech.

Unfortunately, even if Citizens United were overturned, restricting corporate speech will not do much to redress the incredible imbalance in our political system, wherein billionaires’ views matter way more.

No one turns to Mark Cuban or Mark Zuckerberg because they think the businessmen have great ideas about government. These people are courted because of their ability to raise money. The rich also have access to the media in a way the rest of us don’t, especially those who own it, like Rupert Murdoch.

Reversing Citizens United wouldn’t end the disproportionate power that rich have in the political process. That will require measures that amplify the voices of ordinary people, such as public financing that multiplies the impact of small campaign contributions. New York City has led the way down this path.

But it will be an important first step to recognize that corporations were created by the government to increase wealth. They don’t exist to tell us what sort of government we should have. For this reason, reversing Citizens United is a step in the right direction.

Dean Baker is a leading macroeconomist and a co-founder of the Center for Economic Policy and Research (cepr.org).