Thursday, June 21, 2007

"Corporate" free speech

In yesterday's Capitol Times, Mike McCabe of the Wisconsin Democracy Campaign sounds like he expects the Supreme Court to overturn McCain-Feingold's restrictions on grassroots lobbying immediately prior to a federal election. I hope his worst fears are realized.

But my job this morning is to fisk his piece. He's managed to pack three huge conceptual errors in one short column.

First, the restrictions at issue in Wisconsin Right to Life v. FEC cannot accurately be described as simply keeping "corporate" money out of politics.
Wisconsin Right to Life is a corporation (albeit not the big bad for profit type that McCabe is referring to) but its funds come from a variety of donors in varying amounts - most of whom, I suspect, are individual persons. McCain-Feingold wants to restrict what these people can give to facilitate the communication of an idea that they care about. It wants to require that their contribution be publicly disclosed notwithstanding the reluctance of many to give to a controversial cause if their involvement would become known to their employers, neighbors, etc. In other contexts, courts have recognized that forced disclosure can burden associational rights.

McCabe thinks that this is justified by what has been and, unless we repeal the First Amendment, always will be a futile attempt to keep "big money" out of politics. Not surprisingly, he wants to mischaracterize the cost.

Second, McCabe thinks that strict constructionist judges are somehow bound to respect all precedent and that this issue was decided in the McConnell case.
Putting aside the fact that WRTL is making an "as applied" challenge that wasn't present in McConnell, McCabe's characterization of "strict constructionist" (or, as others might put it, "textualist" or "originalist" ) jurists as "precedent judges" isn't quite right.

The considerations of judicial modesty and predictability that inform these interpretive theories probably do imply a greater respect for precedent, but prior decisions that have gotten the text or the original intent wrong are certainly subject to reversal. Nothing in these theories requires that error, once made, must be repeated in perpetuity.

Finally, McCabe indulges in the left's curious demonization of the corporate form and trots out its beta noire, the Supreme Court's 1886 decision in Santa Clara County v. Pacific Railway Company. According to McCabe, a "footnote" by a single Justice in this case held that corporations were "persons" under the 14th Amendment, presumably reversing all sorts of precedent that limited their nefarious designs.

We can put aside the fact that Santa Clara County has no such footnote (McCabe means to refer to a reported pronouncement before oral argument that the justices all agreed that a corporation was a "person" so no argument on that point was necessary) or "holding" (the court ducked the constitutional issues). He is certainly right that corporations are "persons" under the 14th Amendment.

McCabe seems to think that this tore down a "wall of separation" between "democracy" and an "aristocracy of monied corporations." That's a stretch. It was legislation in the various states that created corporations as juridical persons and the Court had long ago recognized constitutional protection for corporate charters.

In any event, whether or not these entitites were "persons" under the 14th Amendment could hardly have been answered before the 14th Amendment was ratified in 1868. There is ample legislative history and sound policy supporting the view that the choice of a person or group of people to organize in a particular form (with all its advantages and disadvantages) ought not to result in the forfeit of constitutional protections. Would McCabe believe that Wisconsin Right to Life or, for that matter, the Wisconsin Democracy Campaign ought not have any first amendment protection?


Dad29 said...

McCabe's version of "strict construction/stare decisis" would have left slave-holding as a Constitutional right, eh?

illusory tenant said...

There is likewise "ample" legislative history and sound policy for the proposition that corporate speech (and its inbred cousin commercial speech) is distinguishable from individual speech for purposes of the First Amendment analysis.

Conflating them to the objective of attacking this element of Mr. McCabe's argument is not the most effective rebuttal, short of adding, "Five out of nine judges said so in Bellotti, although they were addressing the narrower question of a State referendum."

Rick Esenberg said...

I'm not conflating anything. I am noting that McCabe is wrong to suggest that the idea that corporations are "persons" within the meaning of the 14th amendment or the notion that they may enjoy constitutionally protected liberties was judicial "legislation."

illusory tenant said...

I'm not conflating anything.

But for the facts that McCabe's larger point was the referenced distinguishability and your lack of success at "Fisking" that point, I'd allow for the lesser included offense of constructive conflating by dint of your failing to even address it. I suppose McCabe could have made it clearer -- and better supported -- but it was clear enough to me.

Complaining about the Court's recognition of corporations as persons, a subject you managed to address more directly, is something of a distracting sideshow to the question of whether corporate speech is entitled to the same level of First Amendment scrutiny as is individual speech in the context of political campaigns.

Several revered conservative oracles, including Byron White and William Rehnquist, evidently thought not.

Perhaps you could address it sometime; it might be more interesting than, e.g., the chronology of Jefferson's death in relation to the ratification of the 14th Amendment.

I understand this is a relatively subtle question of First Amendment law, and as such would tend to send Dad29 and John McAdams lurching for the smelling salts, but your more sophisticated readership may find it edifying, and I certainly know that you are up to it.

[aside]And remember, kids, sarcasm is the soul of successful Fisking.[/aside]

Jack Lohman said...

I've never quite understood the Right-to-lifers. You could virtually destroy democracy and they'd be okay with it as long as they could eliminate the women's choice. Seems to me to be throwing the baby out with the bath water. I prefer appealing to the mother's sensibilities to forced birth.

Rick Esenberg said...


That would be a column that McCabe did not write and, therefore, a different post. You may not think that it's worth debunking the notion that Santa clara County was a momentous bit of judicial activism, but it's quite a chestnut on the left.

As to whether the first amendment rights of corporations, let's wait and see what the Court does next week and if that question is once again relevant. (I doubt it will be.)

I made no mention of the chronology of Jefferson's death, only the obvious point that a decision shortly after the 14th was ratified could hardly have disturbed a long standing interpretation of it.

And, as an aside, don't you think it's awful weak sarcasm that must declare itself?

Jack L.

I have no idea what your point is.

The ACLU, to take one example, supports WRTL's position in this case. Are they trying to destroy democracy? If so, I can only guess that their motivation is something other than restricting abortions.