Let's fudge a little on the First Amendment, shall we?

by: hotflash

Sat Mar 13, 2010 at 14:21:12 PM CST

Freivogel, a former editor at the Post-Dispatch whose particular beat was the Supreme Court, now heads the journalism department at SIU. Speaking at West County Dems last Monday, he emphasized that he sees no way to accomplish both goals. His reservations have a lot to be said for them. Consider that it wasn't just the NRA that supported the High Court's ruling in Citizens United wherein the McCain/Feingold law banning corporate ads before an election was deemed to violate the First Amendment. The ACLU also supported the position that such censorship was unconstitutional. Justice Kennedy, writing for the majority, warned that banning such speech would mean censoring Sierra Club ads sixty days before an election that disapprove of a congressman voting for logging in the national forest; preventing the NRA from publishing a book urging the public to vote for the challenger because the incumbent favors handgun bans; and forcing the ACLU to take down from its website a page telling the public to vote for a candidate in light of his defense of free speech. All these are classic examples of government censorship.

Keep in mind, though, that four justices thought such censorship was necessary. John Paul Stevens, writing for the minority, noted that allowing corporations free rein to speak will further undermine the integrity of elections. He expressed concern about the doctrine that corporations are people and about the likelihood of foreign corporations affecting our elections.

Freivogel can appreciate Stevens' objections. Having come of age during the Watergate era and having seen the abuses of money in politics, he wanted campaign finance reform. But now he thinks:

"There's no way to write a campaign finance law that is going to effectively restrict money abuses in politics and is also going to be consistent with the First Amendment. McCain-Feingold is an attempt to do it. In some ways, if you think about it, McCain-Feingold had some very good provisions, but its provisions made certain kinds of electioneering ads in the time period coming to an election illegal. That's an incredible exercise of government power. It is making illegal political speech at the very time that it's most important, the time right before an election. In some ways, it makes the First Amendment not make sense. Why would the First Amendment make it illegal to have certain kinds of political speech by the ACLU or the NRA or NARAL right before an election and still protect pornography and flag burning. It's a little bit hard to make that argument.

So, as I say, as I saw then the development of soft money that made the Watergate reforms ineffective and saw the problems of that McCain-Feingold law, I basically have come to the conclusion that you can't make the law that's going to both protect the honesty of the electoral process and also protect people's right to join together in groups and to make their views known in the days right before an election.

The only leeway Freivogel would grant in this dilemma about censorship is that he wishes the Court had made a distinction between non-profits and for-profit corporations. That way, Missouri Votes Conservation could air ads about how much money Blunt takes from Big Oil and how necessary cap and trade is. And, to be fair, the NRA could recommend voting against candidates who endorse handgun bans. But Exxon--with its motives of greed and its disregard for the future of the planet--could ... shut. up. Ooh, that sounds good, right? But aside from the fact that SCOTUS didn't make that non-profit/for-profit distinction for  us and that creating it is not a legislative option--it wouldn't solve anything anyway. Exxon, trust me, would not be silenced for more than a nanosecond, because that's how long it would take the oil Goliath to get one of its cronies to incorporate a non-profit front group to accept a few million bucks and film ads that lie about climate change.

If it's all or nothing, Freivogel speaks for letting all corporations participate and opines that this latest decision won't really change the current scene all that much anyway. He doubts that Wal-Mart would want to offend half its customers by blatantly taking money from its own treasury to fund TV ads--especially if, as looks likely, we pass a law requiring that the CEO say at the end of the ad: "I'm so-and-so, CEO of such-and-such, and I approve this ad."

Freivogel's attitude, though, overlooks the damage that the "corporate personhood" judicial precedents over the last 150 years or more have already done. They have led to an electoral situation where health insurers spent hundreds of millions of dollars lobbying against health care reform. And I doubt if Exxon gives a hoot about offending its customers. It knows that the occasional attempted boycotts of its gas stations in the last few years have been abysmally unsuccessful--laughable, in fact. Furthermore, we can't get effective financial reform because so many congressmen are in the pockets of banking industry contributors. Thus, while it may be true that most corporations would not want to offend their customers with ads in their own names, the control corporations have over our elections threatens our democracy. The power they exert has made them what William Rivers Pitt calls "Super-citizens" and has in effect turned individuals into second class citizens.

So, yes. If it came down to it, I'd be willing to censor everything SEIU and VoteVets want to put on the airwaves if we could also be spared the lies and distortions of Swiftboaters funded by wealthy corporations. Let's leave the talking to the individuals running for office or those voting, and let's eliminate corporate funding from that speech. To do anything less subverts free speech rather than protecting it. The purpose of the First Amendment was to make sure that anybody who wanted to plunk a soapbox down in the town square and rant on about taxes or justice for the poor could have his say. But if a corporation erects a stage five feet away from him and installs seven monster amps, that individual's right to be heard, even though he's still standing there shouting, has just been obliterated.

I'm guessing that Freivogel would object to that analogy, because he mentioned how important it is for people to be able to gather in groups and make themselves heard. That's what corporate ads do, and that's what lobbyists funded by corporate PACs do. Such an attitude would put Freivogel squarely in the camp of the justices who ruled, in Buckley v. Vallejo, that money equals speech. But it doesn't. Hundred dollar bills don't have mouths. People have mouths. And hands to vote with. The right of corporations to advertise in elections needs to be curbed if we're going to preserve not only the heart of the First Amendment but our democracy. To be a purist by including corporations in the mix is to subvert the intent of the Amendment's authors.

So. To the obvious question. What are we to do? The most practical step--one that would only obliquely curb corporate spending--is to support the bill in Congress that would promote public funding of elections. The Fair Elections Now Act is gaining traction because of the Citizens United decision. It has 138 co-sponsors in the House. Lacy Clay is one of them. Russ Carnahan and Emanuel Cleaver are not. Not yet. Nor is Ike Skelton, of course. There are even three Republicans among the co-sponsors. In the Senate, there are eleven co-sponsors in all. Claire McCaskill is not one of them, but I still recall hearing her bemoan, in the summer of 2006, how much time candidates have to waste dialing for dollars. She might not be too hard to convince on this one.

The bill would set up an opt in situation. Once a candidate collected a given amount of small dollar donations--no more than $100 in a year from any one person--enough to prove that he's got a reasonable amount of support, he could opt to receive public funds and forgo any contributions over $100. Of course, his opponent might not opt in, but his refusal of public money in order to go after big corporate contributions might then become a major campaign issue.

Last summer, I went to a major league baseball game and was shocked to see the manager of the opposing team hand the ump $5,000 before the game began. Okay, that's a lie. But the point is that the baseball commission has more sense than our Federal Elections Commission. Flagrant bribery is illegal in baseball. The only way to squelch such blatant bribery in elections is by making public funds available and by making it politically risky to opt for accepting large campaign contributions.

William Freivogel denigrated the idea of public campaign financing on the grounds that many citizens would object to seeing their tax dollars fund the opposition. His question was, how would you feel if you knew that Dick Cheney was getting your money in a run for office? Let me see now. If Dick Cheney opted into a public campaign finance system, I'd feel--aside from shock that he would decline big business's cash--I'd feel ... delight, knowing that if he were forced to do all his own lie telling, he'd be at a tremendous disadvantage. A level playing field makes it harder for Republicans to succeed.

But to return to the issue of getting corporate money out of elections altogether, I would support Donna Edwards' proposed Constitutional amendment "permitting Congress and the States to regulate the expenditure of funds by corporations engaging in political speech". If that were ever passed, it would make the whole opt in or stay out question moot and greatly improve the chance of honest elections.

Here again, Freivogel would object by warning that changing the First Amendment could be a slippery slope. Next thing you know, we'll be considering amendments to ban flag burning and allow official prayers in public schools. As he pointed out, the First Amendment is generally a liberal icon, one we might not want to mess with. Consider, though, how daunting it is to amend the Constitution. Doing so requires approval of 3/4 of the state legislatures. That's a bar few proposals can hurdle. It's a bar high enough to eliminate an idea like allowing state sponsored prayer in schools. But if any idea has the oomph to clear that bar, it would be getting corporate money out of our elections. As Freivogel pointed out, 66-80 percent of those polled favored eliminating corporate money in elections.

Aside from the slippery slope warning, though, Freivogel would argue that Edwards' amendment negates the First Amendment by abridging free speech. Maybe so, but I figure that we can have a literal interpretation of the First Amendment only if we don't mind seeing democracy slide down the tubes. We need to be asking ourselves, "What would Thomas Jefferson do?" He thought we would need a new Constitutional convention every couple of decades; in lieu of that, I think he'd at least approve of a little practical fudging on the First Amendment.  Another of our forebears, Andrew Jackson, saw the beginnings of this problem developing and had this advice:

Unless you become more watchful in your States and check this spirit of monopoly and thirst for exclusive privileges, you will in the end find that the most important powers of Government have been given or bartered away, and the control of your dearest interests have been passed into the hands of these corporations.
-- Andrew Jackson, farewell address, 04 March 1837

photo of the capitol from behind the columns of the Supreme Court Building courtesy of American Spirit Images