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Expensive Speech, Illegitimate Power: Corporations and Free Expression

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Polity

Abstract

All legitimate democratic governments must remain responsive to the interests of their citizens. Such responsiveness depends, in turn, on the right of free expression, without which citizens cannot make their interests and grievances known. When citizens must compete for attention and influence with powerful private corporations, however, unregulated expression can become a danger to democracy. Drawing ideas from the republican tradition of political thought, this essay argues that political speech funded by business corporations—not just during election campaigns but in all political seasons—threatens the legitimacy of American government. The essay advances an egalitarian, democratic theory of free expression and uses the theory to clarify the relationship between free speech and vibrant democracy. It then defends ambitious restrictions on corporate political speech that extend far beyond campaign-finance reform.

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Notes

  1. John Trenchard and Thomas Gordon, Cato’s Letters, Vol. 1, 4th ed. (London: Wilkins, Woodward, Walthoe, and Peele, [1720] 1737), 96.

  2. Cass Sunstein, Democracy and the Problem of Free Speech (New York: MacMillan, 1993), 2–3.

  3. The internet has, in some respects, emerged as an exception to these trends, and some writers believe that it offers a long-term solution to the accumulated political and informational power of wealthy interests. There is ample reason for skepticism, though. In many ways, the internet both reproduces the inequalities and exclusions of politics as usual and creates new forms of inequality. Moreover, the very structure and openness of the internet are themselves subject to political contestation, in which powerful private interests speak much more loudly than most. For an excellent discussion of the perils of digital democracy, see Matthew Hindman, The Myth of Digital Democracy (Princeton: Princeton University Press, 2008).

  4. Buckley v. Valeo, 424 U.S. 1, 19.

  5. Ibid., 28.

  6. Ibid., 26–27.

  7. The Bipartisan Campaign Reform Act (also known as McCain-Feingold), ratified by Congress in 2002, prohibited corporations and unions from using their treasury funds to purchase broadcast advertisements that explicitly advocated the re-election or defeat of a candidate for federal office. The prohibition applied to the thirty-day period preceding federal primaries, and to the sixty-day period preceding general elections. The Court struck down this prohibition in Citizens United.

  8. Buckley v. Valeo, 14–15.

  9. Ibid., 15. The Court draws this last line from Justice Brennan’s famous opinion in New York Times v. Sullivan (1964).

  10. First National Bank v. Bellotti, 435 U.S. 765, 766.

  11. Ibid., 777–78.

  12. Indeed, Buckley argues that such concerns are “wholly foreign” to the First Amendment; 424 U.S. 1, 50. Considered as a description of the Court’s historical treatment of the First Amendment, this view was incorrect. As Ken Kersch has shown, the Court, in a series of important cases in labor law, has regulated the political speech of employers in the interest of promoting greater equality. See Kersch, “How Conduct Became Speech and Speech Became Conduct: A Political Development Case Study in Labor Law and the Freedom of Speech,” University of Pennsylvania Journal of Constitutional Law 8 (2006): 255–97.

  13. Citizens United v. Federal Election Commission, 558 U.S. ___ (2010), 23.

  14. Sunstein, Democracy and the Problem of Free Speech, 241.

  15. Alexander Meiklejohn, Free Speech and Its Relation to Self Government (New York: Harper Brothers Publishers, 1948), 15–16.

  16. Owen Fiss, The Irony of Free Speech (Cambridge: Harvard University Press, 1996), 38.

  17. J. Skelly Wright, “Money and the Pollution of Politics: Is the First Amendment an Obstacles to Political Equality?” Columbia Law Review 82 (1982): 609–645.

  18. Unsurprisingly, the Supreme Court has also ruled that corporate political advocacy outside of the context of elections deserves First Amendment protection. See Pacific Gas and Electric v. Public Utilities Commission of California, for instance, in which the Court rules that California cannot compel the utility company to include opposite points of view in the political flyer that it distributes to its customers. The Court cites Bellotti and its defense of the “free marketplace of ideas.”

  19. Scholars often do not recognize Mill as a republican thinker. In fact, the strong republican currents in his work show that liberalism and republicanism are much more difficult to disentangle than some philosophers—including Pettit—have supposed. For further discussion of Mill’s republicanism, see for instance Bruce Baum, Re-Reading Power and Freedom in J.S. Mill (Toronto: University of Toronto Press, 2000). Of course, the republican tradition also deeply informed the political theory of the American founders. See for instance Gordon Wood, The Radicalism of the American Revolution (New York: A.A. Knopf, 1992).

  20. John Stuart Mill, The Subjection of Women, in Mill, ed. Alan Ryan (New York: Norton, [1869] 1997), 156–57.

  21. Philip Pettit, A Theory of Freedom: From the Psychology to the Politics of Agency (Oxford: Oxford University Press, 2001), 139.

  22. Ibid., 134–35.

  23. In this sense, the republican tradition diverges from the Marxist tradition. Though both Marxists and republicans draw attention to domination that results from unequal distributions of power, republicans have typically believed that arbitrary power could be contained using political strategies.

  24. Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press, 1997), 171–205.

  25. Some theorists of democratic deliberation (including Mill and Pettit) have argued that political power is not fully responsive unless it is also deliberative. Since my interest here is in articulating a threshold of democratic legitimacy, I leave these more ambitious democratic aspirations aside.

  26. Pettit, Republicanism, 186–205.

  27. Ronald Dworkin, “The Curse of American Politics.” The New York Review of Books 43 (October 1997): http://www.nybooks.com/articles/1388, accessed on May 12th, 2011.

  28. Ibid.

  29. There are, of course, other ways of violating the “fair opportunity” standard. For instance, the standard of “fair opportunity” is also violated if some groups of citizens are effectively excluded from public decision making. Larry Bartels has shown that the views of citizens in the bottom third of the income distribution in the United States commonly receive “no weight at all” in their Senators’ voting decisions. See Bartels, Unequal Democracy: The Political Economy of the Gilded Age (New York: Russell Sage, 2008), 252–82. This too is strong evidence of political domination.

  30. For a detailed treatment of this second dimension of power, see for instance Peter Bachrach and Morton Baratz, Power and Poverty: Theory and Practice (New York: Oxford University Press, 1970); and Steven Lukes, Power: A Radical View, 2nd ed. (Hampshire: Palgrave Macmillan, 2005).

  31. As Lukes puts it, “people’s wants may themselves be a product of a system which works against their interests”; Lukes, Power, 38.

  32. Sunstein also describes his approach as republican, though he interprets the tradition differently than I do.

  33. Fiss, “Free Speech and Social Structure,” 1416; Cass Sunstein, “Preferences and Politics,” Philosophy & Public Affairs 20 (Winter 1991): 30.

  34. Fiss, “Free Speech,” 1412–13; also Fiss, Liberalism Divided, 144–48.

  35. Sunstein, “Preferences and Politics,” 11; Fiss, “Free Speech,” 1416.

  36. Fiss’s and Sunstein’s arguments resonate with a popular sovereignty tradition that stretches back through the Progressive reformers of the early twentieth century, who held that the state was responsible for promoting and protecting the conditions under which genuine self-determination might take place. See for instance Kevin O’Leary, “Herbert Croly and Progressive Democracy,” Polity 26 (Summer 1994): 533–52. Robert Post, meanwhile, writes that the identification of democracy with “autonomous self-government” “stands virtually unchallenged” in the field of constitutional law, “perhaps because of the absence of serious alternative normative accounts of democracy.” See Post, “Meiklejohn’s Mistake: Individual Autonomy and the Reform of Public Discourse” Faculty Scholarship Series, Paper 203, 1123–24. http://digitalcommons.law.yale.edu/fss_papers/203, accessed on 23 February, 2011.

  37. Fiss acknowledges this problem. In an uncharacteristically awkward discussion, he calls it “first amendment counterproductivity.” Fiss, “Free Speech,” 1420. He treats it as an unfortunate but necessary cost of protecting the quality of democratic discourse.

  38. Post, “Meiklejohn’s Mistake,” 1119–32.

  39. Sunstein, “Preferences and Politics,” 21.

  40. Fiss, Liberalism Divided: Freedom of Speech and the Many Uses of State Power (Boulder, CO: Westview Press, 1996), 145. In Fiss’s work, this concern is further manifest in his idea of “true and free collective self-determination.” Rich, high-quality public discussions ostensibly enable true, rather than false, self-government—in other words, self-government grounded in citizens’ own accurate perceptions of their interests. Fiss, “Free Speech,” 1416.

  41. Fiss rightly observes that consumers’ choices are, in the domain of media, constrained in several ways by market pressures. They are not “completely autonomous” (Fiss, “Liberalism Divided,” 143–45). This fact does little, however, to mitigate concern about potentially invasive paternalism.

  42. Fiss’s metaphor of the state as “parliamentarian” is more promising in that it focuses on ensuring that all voices are heard. But this metaphor, too, is ultimately underwritten by the slippery ideal of collective self-determination. Fiss, Liberalism Divided, 116–20.

  43. As Justice Stevens points out in his spirited dissent to Citizens United, the U.S. government has a long history of distinguishing between different categories of speakers, stretching back at least to the Tillman Act of 1907; Citizens United v. Federal Election Commission, 42–50 (dissenting opinion).

  44. This emphasis on distribution of opportunities is not unique to republican theory. It has been advanced by advocates from several other theoretical traditions, including a strain of deliberative democratic theory defended by Joshua Cohen and Jürgen Habermas, and a vein of legal scholarship that holds that, properly understood, the equal protection clause of the Fourteenth Amendment grants citizens the right to “influence the political process effectively.” See Joshua Cohen, “Deliberation and Democratic Legitimacy,” in The Good Polity, ed. Alan Hamlin and Philip Pettit (Oxford: Blackwell, 1989), 26; Jamin Raskin and John Bonifaz, “Equal Protection and the Wealth Primary,” Yale Law & Policy Review 11 (1993): 273–332; Raskin and Bonifaz, “The Constitutional Imperative and Practical Superiority of Democratically Financed Elections, Columbia Law Review 94 (May 1994): 1160–1203; and Spencer Overton “But Some are More Equal: Race, Exclusion, and Campaign Finance,” Texas Law Review 80 (April 2002): 987–1056. 478 U.S. 109, 133.

  45. For a discussion of public support for the Clinton Health Plan, see Robert J. Blendon, Mollyann Brodie, and John Benson, “What Happened to Americans’ Support for the Clinton Health Plan?” Health Affairs 14 (1995): 7–23.

  46. Though the lobbying and PR campaign against the Clinton plan was one of the most expensive in American history, it was different only in degree—not in kind—from the lobbying and PR that accompany almost all major legislative struggles. See, for example, Robert Kaiser, So Damn Much Money: The Triumph of Lobbying and the Corrosion of American Government (New York: Knopf, 2009).

  47. The Health Insurance Association of America (HIAA) represented small- and medium-sized insurance companies, which were most strongly opposed to the Clinton plan. The largest companies, including Aetna, Travelers, and CIGNA, felt slightly less threatened because they had a seat at the table around which the Clinton plan was being drafted and refined. Center for Public Integrity, Well-Healed: Inside Lobbying for Health Care Reform (Washington: Center for Public Integrity, 1994), 35–47.

  48. Darell West and Burdett Loomis, The Sound of Money: How Political Interests Get What They Want (New York: Norton, 1998), 106.

  49. Ibid., 100–108.

  50. Center for Public Integrity, Well-Healed.

  51. E.E. Schattschneider, The Semisovereign People: A Realist’s View of Democracy in America (New York: Holt, Rinehart, and Winston, 1960), 66.

  52. See, for instance, Tali Mendelberg, “Executing Hortons: Racial Crime in the 1988 Presidential Campaign,” Public Opinion Quarterly 61 (Spring 1997): 134–57.

  53. Sushil Bikhchandani, David Hirshleifer, and Ivo Welch, “Learning from the Behavior of Others: Conformity, Fads, and Informational Cascades,” Journal of Economic Perspectives 12 (Summer 1998): 151–70.

  54. Anthony Nownes, Total Lobbying: What Lobbyists Want (and How They Try to Get it) (Cambridge: Cambridge University Press, 2006), 95–102.

  55. West and Loomis, The Sound of Money, 102–4.

  56. Elizabeth Gerber, The Populist Paradox: Interest Group Influence and the Promise of Direct Legislation (Princeton: Princeton University Press, 1999).

  57. Center for Public Integrity, Well-Healed, 50.

  58. Jonathan Cohn, “Drug Deal: How Big Pharma Extorted the White House,” The New Republic (August 25): http://www.tnr.com/article/politics/drug-deal, accessed on 3 April, 2011.

  59. As one reviewer notes, it is always difficult to know whether people have been unduly influenced or manipulated (as opposed to simply persuaded) by the chorus of corporate voices. The answer surely varies across individuals. The argument here is simply that the vastly disproportionate opportunity to be heard creates a credible danger of domination.

  60. For a discussion of the undemocratic effects of corporate lobbying, see Kaiser, So Damn Much Money; Nownes, Total Lobbying; Richard Hall and Frank Wayman, “Buying Time: Moneyed Interests and the Mobilization of Bias in Congressional Committees,” The American Political Science Review 84 (September 1990): 797–820; and John Wright, “Contributions, Lobbying, and Committee Voting in the U.S. House of Representatives,” American Political Science Review 84 (June 1990): 417–38.

  61. Center for Public Integrity, Well-Healed, 41.

  62. David Kirkpatrick, “Lobbyists Fight Last Big Plans to Cut Health Care Costs,” The New York Times, October 10, 2009: http://www.nytimes.com/2009/10/11/health/policy/11cost.html, accessed on 18 March, 2011; see also Nownes, Total Lobbying, 95–102.

  63. It might be argued that campaign-finance reform would itself neutralize corporate lobbyists, because it would destroy representatives’ financial incentive to listen to them. This seems like wishful thinking. As long as corporations can credibly threaten to move public opinion through independent media campaigns, politicians will have to listen.

  64. 41 Cong. Rec. 1486 (1907). For further discussion of these debates, see for instance David Cole, “First Amendment Antitrust: The End of Laissez-Faire in Campaign Finance,” Yale Law & Policy Review 9 (1991): 236–78.

  65. Citizens United, 38. The notion that “segments of the economy,” rather than citizens, deserve representation is, needless to say, strange when considered from a democratic point of view.

  66. FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 628.

  67. Ibid., 628.

  68. Nadia Urbinati and Mark Warren, “The Concept of Representation in Contemporary Democratic Theory,” Annual Review of Political Science 11 (2008): 396–97.

  69. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 662–64.

  70. Ibid.

  71. David Weaver, “The Corporation and the Shareholder,” Annals of the American Academy of Political and Social Science 343 (1962): 84–94.

  72. If corporate managers fail to pursue this goal, they are eventually replaced by others who will correct the corporation’s course. For an excellent discussion of this tendency, see Daniel Greenwood, “Essential Speech: Why Corporate Speech is Not Free,” Iowa Law Review (August 1998): 1040–49; also Kent Greenfield, Daniel Greenwood, and Erik Jaffe, “Should Corporations have First Amendment Rights?” Seattle University Law Review (Summer 2007): 879–84. For a discussion of the emergence of the “maximization of shareholder value” as a cardinal objective in American corporate culture, see William Lazonick and Mary O’Sullivan, “Maximizing Shareholder Value: A New Ideology for Corporate Governance,” Economy and Society 29 (February 2000): 13–35.

  73. Lazonick and O’Sullivan, “Maximizing Shareholder Value,” 29–33.

  74. Greenwood, “Essential Speech,” 1035.

  75. Ibid., 1034–37; see also Victor Brudney, “Business Corporations and Stockholders’ Rights under the First Amendment,” Yale Law Journal 91 (December 1981): 235–95

  76. Austin v. Michigan Chamber of Commerce, 672–73.

  77. It could be argued that the mere possibility of exit—of divestment—is enough to ensure that corporations remain accountable to the political interests and values of their investors. On this view, shareholders who disagree with a corporation’s political activity need only sell their shares; the remaining investors will be those whose interests or values the corporation does in fact represent. The act of buying stock would thus also be understood as tacit authorization for the corporation to pursue whatever political goals it saw fit. There are several problems with this view. First, it fails as a description of current practice. In our present investor culture, the act of buying stock is not laden with the expectation that investors carefully monitor the political activity of the companies in which they invest and divest from those whose speech they dislike. In fact, corporate lobbying and PR is often carefully disguised, making it almost impossible for investors to obtain the information they would need for responsible oversight. (In gathering data for their report on healthcare lobbying, the Center for Public Integrity complained that the information was very difficult, and much of it impossible, to obtain, even for investigative journalists with time on their hands. See Center for Public Integrity, Well-Healed, 9.) There are, moreover, good reasons not to thoroughly politicize private investment as this would make the activity of investing much more costly and time-consuming, and might have the unintended effect of making investments in patently immoral companies more lucrative (Greenwood, “Essential Speech,” 1045–49). In addition, as Justice Brennan argued, this method of representation would impose financial penalties (in the form of both transactions costs and forfeited profits) on those who dissent from the corporation’s political agenda, which might threaten to coerce members into consenting. Such concerns suggest additional reasons to separate the roles of business investor and political advocate. Parenthetically, the argument here is not that investors should have no duty to supervise their company’s behavior, but that companies should not be viewed as their investors’ political representatives, who act on their behalf.

  78. Ian Lee, “Is there a Cure for Corporate Psychopathy?” American Business Law Journal 42 (Winter/Spring 2005): 72–73.

  79. Brudney, “Business Corporations,” 257–59.

  80. Moreover, to the extent that Americans are simply interested in the political opinions of corporate decision makers—or in their reactions to particular policy proposals—nothing in this argument prevents journalists and other media from interviewing corporate leaders and “amplifying” their speech to meet public demand. This article’s republican proposal would simply forbid corporations from using their treasury funds to buy political speech.

  81. As mentioned earlier, republican theory makes ample room for such rights claims. After all, democratic control is only one of two key strategies for taming arbitrary power; the other is constitutional constraints.

  82. Even if, as Martin Redish has argued, corporations serve as vehicles for individual self-realization, there is little reason to believe that prohibitions on corporate political speech would damage this potential. Redish concedes that the expressive potentials available through for-profit corporations are not principally political. Martin Redish and Howard Wasserman, “What’s Good for General Motors: Corporate Speech and the Theory of Free Expression,” George Washington Law Review 66 (1998): 252–56.

  83. Even here, the Court found itself compelled to use the test of strict scrutiny, and argued that the “reality or appearance of corruption” was a state interest compelling enough to meet this exacting standard.

  84. As this analysis should suggest, the limits imposed on business corporations should not extend to all corporate entities. In Massachusetts Citizens for Life, the court rightly exempts citizen advocacy groups from the spending limits that apply to unions and corporations. This is important: political groups raising money from citizens for the express purpose of political advocacy should have the right to spend as much as they please.

  85. As Justice Rhenquist puts it, commenting on the Bellotti decision, “[The Court] recognized that corporate free speech rights do not arise because corporations, like individuals, have any interest in self-expression. It held instead that such rights are recognized as an instrumental means of furthering the First Amendment purpose of fostering a broad forum of information to facilitate self-government.” First National Bank of Boston v. Bellotti, 33.

  86. Meir Dan-Cohen, Rights, Persons, and Organizations (Berkeley: University of California Press, 1986), 102–113.

  87. Ibid., 109–111.

  88. Randall Bezanson, “Institutional Speech,” Iowa Law Review 80 (1995): 760–61.

  89. To clarify: this article is not arguing that the state may never regulate citizens’ political expression in the name of fair contestation; only that such regulation should proceed very cautiously, with careful attention to the potential dangers it creates.

  90. In 2009 alone, according to the Center for Responsive Politics, the Pharmaceutical and Health Products industries spent over 267 million dollars lobbying Congress and federal agencies. The oil and gas industries spent over 169 million. http://www.opensecrets.org/lobby/top.php?showYear=2009&indexType=i, accessed on 12 May, 2010.

  91. “A Way Out of the Citizens United Mess?” The Huffington Post, 22 January, 2010: http://www.huffingtonpost.com/kent-greenfield/a-way-out-of-the-citizens_b_431990.html, accessed on 11 April, 2011.

  92. Charles Lindblom, The Market System: What It Is, How It Works, and What to Make of It (New Haven: Yale University Press, 2002), 247.

  93. See, for instance, ed. Herbert Alexander, Comparative Political Finance in the 1980s (Cambridge: Cambridge University Press, 1989), and Sunstein, Democracy and the Problem of Free Speech, 77–81.

  94. Greenwood, “Essential Speech,” 1061.

  95. See Sunstein, Democracy and the Problem of Free Speech, 53–92, and Owen Fiss, The Irony of Free Speech, (Cambridge: Harvard University Press, 1993), 50–78.

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    Alex Zakaras

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I am grateful to Stephen Macedo, Philip Pettit, Arash Abizadeh, Leif Wenar, Alan Patten, Alec Ewald, Patrick Neal, and the participants in the Princeton Political Philosophy Colloquium, for their help with earlier drafts of this essay.

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Zakaras, A. Expensive Speech, Illegitimate Power: Corporations and Free Expression. Polity 45, 525–553 (2013). https://doi.org/10.1057/pol.2013.17

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