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Jim Sleeper: Corporate free speech? Since when?

[Jim Sleeper, a lecturer in political science at Yale, teaches a seminar on Journalism, Liberalism and Democracy.]

‘IF DANCING nude and burning the flag are protected by the First Amendment, why would it not protect robust speech about the people who are running for office?’’ So asks Theodore B. Olson, George W. Bush’s solicitor general until 2004. He is now the lead advocate for Citizens United, a nonprofit corporation that produced “Hillary: The Movie’’ to swift-boat Senator Clinton’s presidential campaign.

“Hillary’’ didn’t get much distribution because campaign-finance laws (such as McCain-Feingold) and court rulings (such as Austin v. Michigan Chamber of Commerce) bar corporate-funded ads from elections. But now the Supreme Court will review Citizens United v. Federal Election Commission on Sept. 9. Free-speech absolutists, from the National Rifle Association to the American Civil Liberties Union, support Citizens United ’s claim that FEC restraints were unjustified.
But if they win, free speech will be drowned out by people most Americans won’t get to know.

Olson’s question is disingenuous. Yes, “robust speech’’ must be protected even if it’s obnoxious, but no corporation - unless it’s a news-media company, whose business is to facilitate free speech - can be the kind of speaker or citizen the First Amendment’s framers intended to protect.

The Obama administration will defend the restraints on the grounds that corporations are different from individuals. “Corporations are artificial persons endowed by the government with significant special advantages that no natural person possesses,’’ solicitor general (and former Harvard Law School dean) Elena Kagan has written.

She’s right, because a publicly traded business corporation, driven to maximize profits by market competition and its own charter, can’t rise above that mission any more than it can dance nude.
Corporations aren’t “voluntary associations’’ with republican intentions, as Justice Antonin Scalia claims; in a civic sense, they’re mindless, because their shareholders change with every stock-price fluctuation.

Even a “nonprofit’’ corporation like Citizens United doesn’t deliberate openly with Americans as fellow citizens; it exists only to advance a business agenda in politics and is closed to persuasion.

Not that a business agenda is bad. Maximizing profits is how corporations generate wealth and opportunity. They do it by selling things people want. But that doesn’t provide all a society needs. Yet if corporate employees do anything “socially responsible’’ that doesn’t maximize returns, they quickly lose shareholders and their own jobs. That’s why citizens (including capitalists, as individuals) must sometimes rise above markets and other private interests to achieve public goals - a sustainable environment, universal health care.

This year showed us that a republic periodically has to save capitalism from itself. Corporations are creations of the republic, not its equals or superiors. We citizens charter them, protect them legally, subsidize them, and even bail them out - and punish them when, as with Pfizer Chemical, their profit-maximizing violates drug-safety rules.

We couldn’t do that if a level playing field of “robust speech’’ were overwhelmed by corporate speech, which isn’t free because corporations, unlike individuals, are not full-fledged members of the community. As inanimate entities, they are incapable of what the political philosopher Michael Sandel calls “a willingness to sacrifice individual interests for the sake of the common good, and the ability to deliberate well about common purposes and ends.’’...
Read entire article at Boston Globe