Here’s the Dirty Little Secret About Campaign Finance Reform

August 3, 2017

Supreme Court Justice Samuel Alito changed the landscape of American elections with one question. It wasn’t supposed to be a hard question, but it ended up shocking the Supreme Court, forcing them to order a fresh set of oral arguments. Justice Alito raised his query during oral arguments in the now-famous campaign finance case, Citizens United vs. Federal Election Commission.

The inquiry centered around a hypothetical: Let’s say a regular corporation decides to publish a 500-page book, and within that 500-page book, one sentence says: “Vote ‘X’ candidate for President.” Legally, this kind of endorsement is called “Express Advocacy.”

Justice Alito’s question was if the Government would ban an entire book if a corporation paid for and dispersed the book using money from their general treasury.

The government’s answer?

Yes, our position would be that the corporation could be required to use PAC funds rather than general treasury funds. … If they didn’t, we could prohibit the publication of the book using the corporate treasury funds.

The federal government was asking for the authority to ban books paid for by corporations. This argument shocked the Court and was the basis for the second round of oral arguments.

Sometimes “Campaign Finance Reform” just means “Censorship”

The episode underscores a darker truth surrounding campaign finance reform: in the end, it’s not about money in politics, it’s about speech censorship. It’s about banning political speech that the left —and their allies — want to drive out of public conversation.

Further, it’s not just targeting speech they don’t agree with, it’s specific discrimination against businesses and corporations that typically don’t support the left. It’s speech discrimination masquerading as cleaning up politics.

Targeting corporations while letting everyone else speak freely 

The story of how Citizens United landed at the Supreme Court serves as a perfect example of this problem. The organization Citizens United produced a movie very critical of then-Senator Hillary Clinton, and the Federal Election Commission attempted to regulate to the film as campaign advertising, blocking it from broadcast. The left sued, accusing Citizens United of accepting and using donations from corporations to pay for the movie, thus violating the law.

But as you’ll see, the left’s only distinction between the Citizens United movie and other forms of political speech is that one was done by a corporation, and the others were not. These are distinctions without a difference.

If we shift the facts just a little bit to create a comparison, you’ll see that the left wouldn’t bat an eyelash at the speech or the speaker.

Filmmakers can say whatever they want

First, consider a single filmmaker like Michael Moore. He makes documentary films that attack conservative positions like gun rights and other issues. He uses those films to then attack politicians when he goes on the road to promote his film.

But nobody sues Michael Moore for violating campaign finance law. That’s true even though Moore is making millions of dollars from his movies, corporations help put his movies together to sell, and Moore has used his movies to elevate or attack political issues and people.

But because he’s not a corporation, he never got sued for campaign finance violations. In fact, Moore gets praised for his work and an increased platform to say or do what he wants.

No matter how much liberals want to end the Citizens United protections of “corporate” speech, they would never target Michael Moore with a lawsuit, or say he violates campaign finance laws. Nonetheless, Moore is overtly engaged in political speech of all kinds using the same speech form as Citizens United.

Media companies can say whatever they want 

Second, consider a major media company. All media websites, TV channels, radio, etc are corporations engaged in speech. Each one actively wants to make money, as a corporation, in the form of speech.

Companies like CNN, FoxNews, and MSNBC pay for political commentators who overtly express who they are voting for in any number of races. Candidates can go on these networks and promote themselves to large audiences.

Donald Trump made all the news networks so much money through his consistent interviews, live rallies, and telephone interviews that news networks effectively gave him $5 billion in free advertising. Airing a live campaign rally may not reflect the editorial stance of a network, but it is a form of express advocacy.

You won’t find any arguments that we should roll back Citizens United to charge news media companies with campaign finance violations, even though they are corporations trying to make money by airing Trump rallies.

Campaign finance laws make distinctions without material differences 

Broadly speaking, all the “special” distinctions campaign finance laws make about when people or corporations can speak are nothing more than arbitrary lines. There’s no material difference or special reason why the examples I gave above don’t have to follow campaign finance rules, but corporations should follow them.

Put another way, you don’t lose speech rights or gain speech restrictions just because you or a group of people decide to form a corporation. There’s no legal difference in the speech between a single filmmaker like Michael Moore and a corporation like Michael Moore Inc.

The First Amendment does not say, “Free speech for everyone except corporations.” Nor is there a constitutional distinction between “express advocacy” and all other forms of political speech. The Constitution just protects all speech in general.

Instead, legal lines between protected political speech and lesser corporate speech come from Congress, courts, and politicians — not the Constitution.

But surely corporations aren’t people?

When someone suggests that all speech should be protected, the most common rejoinder is that “corporations aren’t people.” That’s true, in a sense. A corporation is not a living breathing human being.

That also doesn’t matter. The law treats corporations as people so that they can be sued in a court. It’s what known as a “useful fiction.”

Corporations are treated as “people” by courts because we need them to have some basic human rights in order for businesses to function properly. The basic reason for this is contract law.

If you, a person, sign an employment contract with a big corporation like Google, you need Google to be able to enter into that contract. So for contract law purposes, we pretend that Google is a person and you can enter into a contract with that person.

Conversely, if you need to sue a corporation for employment law practices, you have to be able to take a person to court. In this scenario, we pretend Google is a person in order to sue them for violating employment law. It’s all a useful fiction to ensure business get all the legal protections the corporate form gives, while also ensuring people can still enforce their rights.

Corporations also have free speech rights. A corporation is nothing more than a collection of people working together towards a goal. Corporations put out all kinds of speech from individual speakers ranging from finances, corporate outlook, to advertising.

What campaign finance reformers argue is that the Constitution allows people to be stripped of their political speech rights if they enter a corporation. You’ll notice that liberals most often only seek to strip political speech rights from corporations, all other forms of speech are allowed. And again, this is not something in the Constitution.

The real goal of campaign finance reform: silencing views 

In 2008, Brendan Eich donated $1,000 in support of California Prop. 8, a ballot initiative to define marriage as “only between a man and a woman.”

In 2014, Eich was nominated to become CEO of the company he co-founded, Mozilla. Eich helped create Mozilla Firefox, Javascript, and other huge contributions to the Internet we know today. But as soon as he was nominated he was forced to resign from the company he helped co-found because leftists created an online firestorm.

Using campaign disclosure laws, gay marriage activists created what one of them described as an “online lynch mob.” And as one commentator noted, it raised the issue of how little room for thought corporate CEO’s are allowed to have:

…Eich’s abrupt departure has stirred the debate over the fairness of forcing out a highly qualified technology executive over his personal views and a single campaign contribution six years ago. And it raises questions about how far corporate leaders are allowed to go in expressing their political views.

Some are also questioning whether the episode undercuts the well-groomed image of Silicon Valley as a marketplace of ideas and diversity of thought, and whether, in this case, the tech world surrendered to political correctness enforced through a public shaming on social media.

Campaign finance disclosures are meant to hold politicians accountable for who their donors are in a given campaign year. Instead, they are being used to form angry mobs when corporations or individuals donate to groups deemed bad.

The election of Donald Trump ramped this movement up even further. Liberal groups formed the #GrabYourWallet campaign to boycott 50+ businesses that donated money to Donald Trump.

In other words, instead of putting political pressure on Donald Trump, the person actually in the White House, liberal groups are boycotting people and businesses who donated money to Trump. Even though 90% of the people who voted for and supported Donald Trump and Hillary Clinton did so because they were Republican and Democrat. In other words, a campaign disclosure won’t prove much difference between a Trump voter and a Bush, McCain, or Romney voter.

It’s worth noting these same people don’t form the same boycott campaigns if a candidate in their party holds the same offensive view; which underscores the unprincipled nature of these movements. For example, do you know who else opposed gay marriage in 2008, along with Brendan Eich? Barack Obama and Hillary Clinton.

Campaign finance laws should be narrowly tailored and not restrict speech 

The powers the government requested in Citizens United were beyond the pale — which is one of the reasons the Court struck them down.

Contrary to popular belief on the left, the Citizens United decision has not destroyed democracy. The two candidates who spent the most from Super-PACs in the 2016 election were Jeb Bush and Hillary Clinton – both lost.

Campaign finance laws that empower the government to ban movies, books, and other media purely because of who funded them should be opposed. In general, the government should rarely be given censorship powers.

Western Democracy depends on robust free speech protections. That means protecting speech you don’t agree with — and sometimes that means speech from corporations.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.