Now that the Supreme Court has freed corporations to expressly advocate for the election or defeat of federal candidates, many pundits feel that is simply beyond the power of Congress to constitutionally curtail the corrosive potential of corporate speech.
But Bruce Ackerman and I just published a piece in the Washington Post arguing that Congress can constitutionally prohibit corporations that are federal contractors from paying for ads “endorsing or opposing a candidate for public office.”
A 2008 Government Accountability Office study found that almost three-quarters of the largest 100 publicly traded firms are federal contractors. If Congress endorsed our proposal, these companies — and tens of thousands of others — would face a stark choice: They could endorse candidates or do business with the government, but they couldn’t do both. When push came to shove, it’s likely that very few would be willing to pay such a high price for their “free speech.”
The Roberts court is skeptical — to put it mildly — of campaign finance restrictions. But it is still highly unlikely that the justices would strike down a law targeting federal contractors. All nine recognize that Congress may restrict free speech when there is a significant risk of corruption. That risk is obvious when corporate speakers are simultaneously doing business with the government.
Citizens United Productions Many smaller firms would retain their full rights to expressly advocate for the election or defeat of candidates. The very corporation at issue in last week’s Citizens United decision falls squarely in this category. The corporation that produced Hillary: The Movie had no federal contracts and would thus remain as unconstrained as ever.
More importantly, many news organization would remain unregulated (or could easily comply) because the Fourth Estate doesn’t sell goods or services to the government.
Our Solicitor General, and former Harvard Law School Dean, Elena Kagan, had a monumentally difficult task at oral argument before the Supreme Court when she tried to distinguish books from pamphlets in an age of pdf documents:
[At oral argument,] Ms. Kagan disavowed a statement that a government lawyer made when the case was first argued in March. The lawyer said the government could ban the distribution of books paid for by corporations before elections.
“The government’s answer has changed,” Ms. Kagan said, adding that the Federal Election Commission had never tried to regulate distribution of books.
Chief Justice Roberts bristled at that statement. “We don’t put our First Amendment rights in the hands of F.E.C. bureaucrats,” he said.
He then asked about pamphlets. “A pamphlet would be different,” Ms. Kagan said. “A pamphlet is pretty classic electioneering.”
Conditioning campaign finance regulation on federal contracting is a sensible bright line rule that is much easier for bureaucrats to implement, and for the Justice Department to defend.
In a sense, we’re just trying take the “personhood” of corporations seriously. The Supreme Court has granted corporations free speech rights, because the law treats these artificial creations as legal persons. But these powerful and publicly-traded fictional people should at least also be subject to the same anti-corruption restrictions as real people. Current law prohibits federal contractors (and those that are trying to become one) from directly or indirectly making contributions to political parties and candidates. Our proposal to bar contractors from buying endorsement time merely captures one powerful method of making an indirect contribution.
Bruce and I are the authors of Voting With Dollars: A New Paradigm for Campaign Finance Reform.
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Ian,
THAT is a great idea! I mean, what’s the point of a corporation supporting a candidate if the candidate will be unable to send business there way?
I’m serious–this is one of those elegant, silver bullet ideas that puts the Supreme Court in its place, elevates the American people, and stops the Goldman Sachses of this world from having an edge over the common man.
Thank you!
Who would want to back a bill such as the one you propose? Especially given that it would most likely cost them significant campaign contributions.
The problem with the verdict comes from the fact that it encourages a vicious cycle of congress protecting corporate sponsors of any sort since said corporate sponsors are a significant factor of their being members of congress to begin with.
it’s hard to figure out what planet the SC presides on- meanwhile, on planet earth, we have this notion of justice and equality in our civil society- both of which are being severely hampered by unprecendently powerful corporations- it’s one thing to be naive in the early 20th century and believe that incorporating a group of people may legally involve granting that group (temporary) rights and priveleges accorded to citizens- it’s another thing to negligently ignore the powerful corruption that modern corporations control- have the ‘justices’ not heard of Enron or Goldman Sachs and the political access their $millions commands in drafting legislation to their benefit?- so now, beyond campaign donation corruption, where corporate $ power dwarfs citizen $, the ‘justices’ have ratified corporate media control of election propaganda, which also dwarfs citizen media influence- shame on the SC- they need to be schooled in practical justice, rather than a rational idealism that equates $ and speech
Well, all of the media companies are large corporations. And they certainly advocate for candidates and parties, and even have the power to offer discounted advertising rates to candidates they favor.
And corporations create Pac’s that are essentially corporate lobbying.
So this has been going on already in many ways.
News organizations are corporations. The new ruling will take “Advocacy Journalism” to a new level.
The assertion that the 4th estate doesn’t do business with governmental entities is false. I would think that every government agency receives newspapers and magazines from the 4th estate. Also, many governmental agencies probably pay for advertising for certain programs (unless all of that is provided gratus, which I doubt).
So, this would do away with endorsements and contributions from a lot of the 4th estate.
I don’t think that would be half bad.
Great idea. One question though: How much effect would this have on foreign corporations who have an interest in US politics, but don’t supply contractors?
As an example, a corporation operating in an oil-exporting country that wants to help elect US politicians who oppose offshore drilling or nuclear energy in order to further their own business needs.
Couldn’t large corporations get around such a restriction by creating a separate shell corp through which they funnel all politically-related expenditures? Don’t get me wrong, I applaud your effort to deal with this problem in a smart manner. It’s just that we’re up against a phalanx of lawyers who are paid to find loopholes, and they will most certainly direct their full attention to any attempts to curtail their employers’ “free speech”.