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Corporations, personhood, free speech and SCOTUS

By Scott Tibbs, September 12, 2014

When Mitt Romney said "corporations are people" he was roundly mocked, but he was right. More specifically, corporations are a collection of people, banded together for a common interest. That interest may be to make a profit from selling things, or it may be to advance a public policy agenda. Move to Amend is itself a corporation, and is actually engaged in the very thing it is lobbying to prohibit.

As Jim Bopp pointed out on Monday night at the IU Law School, the issue we should be concerned about in Citizens United is not corporate personhood, but restrictions on speech. The First Amendment's protections for speech are very general, not limited to individuals or corporations or political parties. Even if we accept that "corporations are not people" government is still prohibited from restricting speech.

And yes, money is speech. David Cobb tried to be "cute" by childishly waving a dollar bill around and asking if the crowd can hear him, but the fact of the matter is that money is as essential to speech as gasoline is to driving an automobile. Money is the fuel upon which free speech depends. Without money, campaigns and interest groups cannot buy advertisements, print direct-mail pieces, develop and host websites, pay for door-to-door materials, pay for candidates to travel around and speak, or do anything else to get their message to voters.

Toward the end of the debate, Bopp and Cobb were asked how to improve Washington. Bopp made a good point that I wish had been expanded: Government is too big. Because government has its fingers into so much of our society and economy, a number of interest groups have a vested interest in influencing public policy.

We have gotten to the point where the federal government is restricting how individual people can purchase cold medicine. If the size and role of government shrinks, that will reduce the amount of money in politics by taking away the need for moneyed interests to be politically involved.

Bopp pointed out how dangerously far-reaching Move to Amend's proposal is, especially the goal that "no person gains, as a result of their money, substantially more access or ability to influence in any way the election of any candidate for public office or any ballot measure." Technically, this could be used to prohibit newspaper editorials, even if those editorials do not explicitly endorse or oppose a candidate for elective office. After all, criticizing or praising a candidate in an editorial (or on a radio show, or on cable television, or on a blog) could influence the election. Newspapers are corporations, and are the target of this language.

I admired that Bopp was willing to speak this past Monday, despite knowing he was going into hostile territory. The crowd (consisting of as many local residents as students) loudly cheered Cobb and heckled Bopp on a number of occasions. I cannot imagine any minds were changed, and the "home field advantage" enjoyed by Move to Amend certainly did not help Bopp make his position. That said, despite the heckling, the crowd was mostly respectful of opposing views and allowed Bopp to speak.

Finally, the idea that individual voices are being drowned out by corporate money is far less true today than it was when "campaign finance reform" was being discussed in the 1990's. It is also less true than it was when McCain-Feingold was passed and signed into law by President Bush during his first term. That is because of the ubiquitous nature of the Internet and (especially) because of social media.

If I post something on Facebook or Twitter, I can instantly reach the news feeds for 375 or 419 people, respectively. Others have far more "friends" and followers than I do, and their posts and Tweets are much more likely to go viral. Then there are blogs and websites with high readerships. The idea that the voices of average people are being "drowned out" is an idea that is more than two decades out of date. We certainly do not need the kind of draconian restrictions on free speech that Move to Amend's proposal would allow.