Friday afternoon rebuttal #2

In a blog post that appeared on the Milwaukee Journal Sentinel website, Rick Esenberg takes a Milwaukee Common Council committee to task for writing a proposed Constitutional amendment which he characterizes as a “fascist” statement. Here is the offending statement, as quoted by Esenberg:

“only human beings–not corporations, unions, nonprofit organizations, or similar associations–are endowed with constitutional rights, and that limiting political contributions and spending is not equivalent to restricting political speech .”

Esenberg claims that this statement, if taken literally, would deprive organizations such as the ACLU and the NAACP and newspapers from advocating for their members or publishing. Since the First Amendment allows for a right of assembly or association, and the Supreme Court has affirmed such a right–“a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends” — Esenberg reasons that such an amendment, if passed, would prohibit the free speech of all associations, thus significantly curtailing free speech and thus creating “fascism.”

Esenberg may have a valid, legally technical point, but the motivation for any such amendment, as he later admits, is not to squelch free speech but to democratize it further, to prevent wealth and power from overpowering the voice of the less moneyed. The thorough legal reasoning of the U.S Conference of Mayors (not known for their fascist views) on this issue is instructive. And here is another version of a constitutional amendment put forth by some Democratic Senators that avoids the question of corporate personhood.

So as I understand it, individual persons are free to assemble and associate, including the right to form “corporations” of various types, and to speak through these “corporations.” Fair enough. But this association or incorporation of individuals does not mean that the created “corporation” is now a “person” in the eyes of the Constitution. All sorts of groups are, of course, free to speak peaceably as groups. The real question is whether or not money equals speech and whether or not certain types of extremely wealthy corporations (or individuals) should have more of an effective right (ability) to speak because they can amass lots and lots of money. The point is to place reasonable limits on political spending. Four of the members of the Supreme Court (none of whom, as far as I know, are fascists) dissented in the Citizens United ruling.

But Esenberg dismisses the Milwaukee Common Council’s intent to endorse the limiting of political spending:

“To say that limiting “political spending” is not restricting political speech is to say that the government can deprive advocacy organizations of the means to speak.  In the brave new world that the proposed amendment would establish, the government could silence unwanted voices by denying them the ability to effectively communicate their views. Want to publish a book or magazine? Put up a website or make a movie? Hire canvassers to distribute literature? It all costs money.”

So limiting spending is the same thing as depriving “advocacy organizations of the means to speak?” We are talking about how much money super PACS can raise to elect candidates, usually through very expensive TV commercials, not whether a big, wealthy corporation (or a less wealthy union or advocacy group) wants to create a website or write an op-ed to advocate for electing a sympathetic Congressperson. As long as the spending limits are applied fairly to all speakers and groups, no silencing of “unwanted voices” would occur.

What’s wrong with leveling the playing field a little? Should all millionaires, by virtue of their wealth and power, be allowed to vote twice? No, for we would recognize this as a corrupt kind of buying of votes. And yet the richest corporations among us are now able to amplify their voices far beyond what most individuals (and most advocacy organizations) are capable of; this is a corrupting influence, for wealth now speaks louder and farther.

As for there being, as Esenberg claims, “virtually no evidence” that “government is sold to the highest bidder” via obscene campaign spending, perhaps he is right. Perhaps the $6 billion spent on the 2012 elections had absolutely no effect on who got elected to office, that all the many negative and inaccurate commercials produced that year did not sway a single voter. If that is the case, we collectively wasted a whole lot of money/speech that could have been otherwise used to actually bolster our democracy.

Update– See Rick Esenberg’s “Ditch These Unconstitutional Limits on Campaign Spending” at the link below for a fuller expression of his position.