Summer Series #9: Free Our Freedoms - The Stranglehold Corporate America Has Over Our First Amendment Rights

By Brandon Stanaway

Neither the freedom to speak one’s mind is a partisan issue nor is campaign finance a partisan issue. In both cases it is imperative for all individuals, whether expressing an opinion or running for political office, to be on a level playing field. The Supreme Court’s decision in Citizen’s United vs. FEC (2010) has created an inequality between individual citizens of the United States and large corporations and “independent” political action committees (PACs) that effectively crowd out the ability of the public to form informed opinions and express said opinions in an impactful manner.

It is necessary to examine the bill and the legal statute that Citizen’s United effectively overturns to put our current predicament in perspective. The Bipartisan Campaign Reform Act (BCRA) (2002), better known as the McCain-Feingold campaign reform bill, aimed to limit the amount of “soft money” contributed to federal and state candidate campaigns and used to air non-partisan “issue ads” not advocating for a candidate directly yet referring to specific political individuals from large corporations and other interest groups. After its ratification by President George W. Bush in 2002, the act became subject of legal scrutiny. Senator Mitch McConnell (R-KY) argued in McConnell vs. FEC (2003), that the section of the BCRA banning “soft money” contributions was in violation of the First and Fourteenth Amendments of the U.S. Constitution and that the sources of the “soft money” contributions are protected by their First Amendment rights [1]. The Supreme Court held that the BCRA was constitutional in those regards and the argument was put to rest, that is, until 2010. The verdict in Citizen’s United effectively overturned the efforts of Senators McCain and Feingold over a decade prior. Use of “soft money” was deemed to be acceptable campaign finance practice. The five justices (Roberts, Scalia, Kennedy, Thomas, Alito) responsible suggest that the corporations, as legal individual entities, carry the same right of “political speech” that each American citizen cherishes [2]. Through these decisions the choice was made to take the freedom speech and interpret the right in an unprecedented way. No longer was speech just the opinion of an individual, it also became the financial capital and entity can put behind an idea that serves their business interests.

Here in lies the issue; corporations are inherently different that individual American citizen. Legally, yes, corporations are considered individuals. Hundreds of years of legal discourse have come to this conclusion. That being said, corporations/PACs and individual persons are not one in the same and legally should not be considered as such. Internally, corporations and PACs are made up of a combination of employees, management, Board of Directors, auditors, PR reps, etc. all with individual minds and individual opinions. In the hierarchical structure that exists in a capitalist enterprise, the opinion of only the high ranking few represent the opinion of the many employees and stakeholders of a firm. Basic business ethics demonstrates a conflict of interest here. Stakeholders and employees invest their financial and human capital in a firm to ensure its longevity, collecting wages and dividends along the way. Management attempts to maximize profits in order to acquire lucrative stock options and end of year bonuses. Thus, the voice of the company only speaks (makes an investment) in a product (politician) that will favorably benefit the corporation’s profitability and the management’s billfolds.

An entity constructed as such with the legal right to put forth a singular opinion for the corporation invites the expectation of conformity amongst its ranks of laborers and stakeholders. The instance this summer at Google exhibits this fault of corporate conformity. The sentiments expressed by the terminated employee were discriminatory and warranted reprimand. As a matter of free speech, Google’s termination of an employee based on the incongruence between the opinion of the individual and the opinion of the company is not, in itself, a valid justification of termination. Obviously, in this situation the corporation’s image and political bent is more important than that of the freedoms endowed to each American citizen; their employees.

Externally, corporations and PACs act to crowd out opposing opinions and to influence individuals to agree with their own opinions. When speech is quantified as financial capital, “Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions.” [3] Through contribution of campaign materials from posters, pens, manpower, television and radio advertisements, rallies etc. to specific candidates, politicians who curry the favor of large corporations and PACs by vowing to sponsor policies that would benefit them thus gain the required firepower to win an election. Individuals may support another candidate or another ideology, but if those candidates and opinions cannot see the light of day because they are buried under “soft money” donations to a politician willing to accept donations to win an election rather than stick to a certain platform. In 2010, these “soft money” donations were valued at $140 million dollars up from a total of $0 dollars in 2006 [4] in the wake of the Citizen’s United decision.

Additionally, the proliferation of corporate sponsorship can only increase the significance of the herding effect amongst individuals. The premise of the herding effect is that when one individual is exposed to an opinion or an action of a group of individuals, the single individual is likely to follow in the footsteps of the groups because the singular individual perceives the group of doing or saying the correct thing. This applies to speech as well. Individuals will be less likely to speak their minds when a group of individuals is expressing an opposing opinion. When that opposing opinion is made prevalent through advertising campaigns, distribution of campaign materials, or media prevalence it mobilizes individuals without a strong opinion on a certain topic or those with opposing opinions who do not want to see wrong to conform because the individual with the opposing opinion is unable to perceive a justification for their own opinion. The herding effect is prevalent in everyday human interaction and that cannot be helped, but “soft money” funding to political campaigns only exploits human nature to benefit individual politicians and thus individual corporations.

The verdict reached in Citizen’s United does not protect the speech of individual Americans. It merely diminishes the effectiveness of individual opinions and the ideological solvency of the federal government in favor of strengthening the influence of corporatocracy in the United States. Our freedoms are not quantifiable.  Our voices are. Banded together, our voices are more powerful than the money and influence of corporate America and political special interests because our democracy allows the people to hold their representatives accountable. Reform the way our elections are funded to level the playing field, to make our government fair and accessible for all, and to give back the freedom of speech and opinion to every American citizen.

Sources: 

  1. McConnell v. Federal Election Commission. (n.d.). Oyez. Retrieved August 16, 2017, from https://www.oyez.org/cases/2003/02-1674
  2. Citizens United v. Federal Election Commission. (n.d.). Oyez. Retrieved August 13, 2017, from https://www.oyez.org/cases/2008/08-205
  3. Austin v. Michigan Chamber of Commerce. (n.d.). Oyez. Retrieved August 16, 2017, from https://www.oyez.org/cases/1989/88-156
  4. Porter, E. (2011, September 17). How the Big Money Finds a Way In. Retrieved August 16, 2017, from http://www.nytimes.com/2011/09/18/opinion/sunday/how-the-big-money-finds-a-way-in.htm