Money talks. In Washington, it shouts. But the question is: do we have to let money jack itself into stadium-size loudspeakers? As I made my rounds in the capital the other day, I could hear the rustling of corporate cash everywhere I went.
In the august hearing room of the U.S. Supreme Court, I listened to the conservative majority—Chief Justice John Roberts's Gang of Five—seethe with skepticism as they considered arguments about limiting corporate spending in elections. Later, across First Street in the U.S. Capitol, Senate Minority Leader Mitch McConnell explained to me how Barack Obama's health-care plan would ruin the health-care industry—an industry, not coincidentally, that McConnell believes should be set free to dump its treasury into the political campaigns of obliging politicians. In a White House briefing room later that day, I listened to a top official sketch his game plan for countering corporate clout in the health-care debate. And then I saw Obama himself try to do just that, at least rhetorically, in a speech to Congress.
No, you are not reading a screed against corporations. I work for them, as do many of us. I give speeches to them. I am sort of one myself, sole proprietor of a boutique Beltway blab factory. Nor am I a foe of free speech; just the opposite. I am a devout believer in the sanctity—and even the economic utility—of the First Amendment. There's a reason why the Founders put it first.
But do corporations have the same free-speech rights as individuals? Do they have the right, confirmed for real persons by the court in 1976, to spend as much as they want for or against a political candidate, as long as they do it "independently"? Is it constitutional for Congress, as it did in the McCain-Feingold law, to limit when they can speak (not right before an election) and what media they can use (not TV or cable)? That's the issue the court wrestled with last week.
I'm wrestling, too. I understand the arguments for unleashing corporations (and unions, which face the same limits). In this country we have a long history of honoring the legal prerogatives of corporations. Many of our earliest explorers and settlers were working for joint-stock companies founded in the coffeehouses of London and Amsterdam. And while corporations are legal fictions, created and sanctioned by law, they have long been considered to have some people like rights and responsibilities. They can borrow money and sign contracts; they have reputations that can be harmed and that they can sue to protect.
So, the argument goes, why can't they say (spend) whatever they want to and whenever they want to, just like any "real" American person? Don't we want diversity in political debate? Don't we especially need that diversity and vigor as Election Day approaches? "There will be a lot of loud voices competing with each other," says Sean Parnell of the Center for Competitive Politics, a libertarian think tank. He adds that companies will take care not to overstep, because those that take unpopular political stands will be punished in the economic marketplace. Why not simply require corporations and unions to disclose their contributions, and leave it up to the voters to decide if they want to support candidates who are awash in that cash?
I'm tempted to agree. But I can't. There can be no marketplace of speech when only a few voices can be heard—which will almost certainly happen if a few well-heeled companies decide to spend tens of millions at a crack. They will flood the airwaves and drown out anyone who can't afford to spend and spend. I worry about American-based companies, controlled by foreign owners, funneling gobs of cash into "independent" spending campaigns.
Most of all, I'm suspicious of the Roberts Court. At his confirmation hearing, the chief justice promised to be a cautious "umpire," calling the balls and the strikes but not changing the strike zone. Last week he seemed hungry to do the opposite—ignore procedure and precedent and sweep away the Federal Election Commission's hard-won (if admittedly byzantine) regulatory system. "We don't put our First Amendment rights in the hands of FEC bureaucrats," Roberts snapped at one point in the oral argument. Justice Antonin Scalia, unctuous and condescending, framed the issue as a matter of protecting "the local hairdresser, the local auto-repair shop, the local new-car dealer." Later in the hearing, Scalia—an ardent foe of most business regulation—invoked the hairdresser again.
I'm sorry. Call me cynical, but somehow I don't believe that mom and pop shops are really his main concern. I think Big Money is. So here's my ruling in this case: Let corporations spend money to praise or oppose candidates. But put limits on how much they can spend, a concept the court has sanctioned in other contexts. That way, corporations can speak, just like the rest of us, but not so loudly that we can't hear ourselves think.