freedom of speech

On January 21st, the Supreme Court ruled "that the government may not ban political spending by corporations in candidate elections," according to the NY Times. Those opposed to this decision have decried this as an assault on democracy by allowing big business to buy elections. Those in favor feel the decisions reaffirms the First Amendment and the freedom of speech.
Well, against my better judgement, I am going to weigh in with my unsolicited opinion.

Background
The McCain-Feingold act banned corporations or labor unions or non-profits from "broadcast advertising that identifies a federal candidate within 30 days of a primary or nominating convention, or 60 days of a general election" among other things. For quite a while now some have argued that this inhibits our basic freedom of speech. As you can see from the NY Times article above, the Supreme Court had already upheld the wording of the McCain-Feingold act in 2003 and had made numerous rulings that OK'd restrictions of corporate political spending.

Nobody would argue against the First Amendment in principle, except perhaps the Federal Communications Commission (FCC) and the Federal Elections Commission (FEC). The FCC and FEC pick and choose their moral high-grounds and establish rules to guide our country accordingly, all backed by the Supreme Court. The FEC and the Supreme Court seem fine, by the way, with limits on the amount of money an individual can contribute. Isn't this "abridging the freedom of speech?" And we all know the seven words you can't say on television or radio. The FCC and the Supreme Court allow the suppression of the freedom of speech in this instance because it interferes with the standards of decency (see FCC vs Pacifica Foundation or FCC vs Fox Television Stations). I am not saying that this is the same as the restrictions placed on corporations in the McCain-Feingold, I am only pointing out the hypocrisy involved in the moral outrage over the two. In one case, we cry "Freedom of Speech" in the other we cry "For the Common Good."

However, the regulation of the two are not the same. To specify, the McCain-Feingold act banned corporations from using soft money to fund electioneering ads within the last 30-60 days before elections. This means that corporations and non-profits had to use hard money contributions to fund these ads, hard money contributions being significantly more regulated. The soft money proviso prohibited corporations and non-profits from soliciting general contributions for their cause and then using it for this type of advertising. Instead, these organizations would have had to solicit money expressly for these specific last minute ads. Example, ABC organization asks for money to help support laws that would ban beer. This constitutes soft money and could not be used to support electioneering ads that would criticize Senator Soggybottom and his pro-beer agenda. Instead, ABC would have to solicit money to be expressly used for such ad campaigns. The hard money would be considered a direct contribution and is subject to tighter regulations (such as limits). Does the McCain-Feingold act seek to suppress the point of view of corporations or non-profits or to limit their speech in any way? No, the intent of the law was to better regulate the flow of cash from corporation and non-profits to politicians. It's now a double standard. If a company uses it's facilities to hold an informal gathering to make phone calls on behalf of a candidate it is considered an in-kind contribution by the company and is subject to certain limits. Yet, now companies big and small can buy up ad time without limit. Without regulations for electioneering or bans on corporate soft or hard money for Federal politicians we are back to the wild west for Federal elections.

For those of you who think this actually helps the small corporation or non-profit that was established to give a group of individuals more power then consider that the latest Supreme Court decision on the matter now gives corporations such as Exxon Mobile and their roughly $442 Billion dollars in 2009 revenue free reign to spend as much as they please on whichever issue they choose. Health Care anybody? Care to guess how much the insurance companies will be spending on advertising and lobbying for whichever bill offers the most promising revenues for them? They are only, after all, exercising their right to free speech. But I ask you, who is powerful enough that would have an opposing interest? Can there be checks and balances? So the Supreme Court chose to look past the inequities that arise from the system and see only the McCain-Feingold as a hindrance for corporations and labor unions and non-profits to express their point of view through dollars. The ruling gives corporations the same standing as a person, a decision with precedent, but which nevertheless is disturbing. Corporations are not human beings and do not deserve the same rights as the individual. As Justice Ginsburg pointed out a corporation is not "endowed by its creator with inalienable rights." Too true.

I'll also point out the conflict of interest a corporation has that an individual human being does not. Corporate officers are "bound by fiduciary duties to act in the best interest of the shareholders." Not the best interests of the person but the best interest of the shareholder, that aspect of a person which involves financial investment in a company. So to think that a corporation will act with morality is contrary to what they are bound by law to do. They must seek out the profits and drive up the price of stock and earn more money for their shareholders. They lack a conscience by definition. Even so, I think the attitude by some that corporations are individuals and so should have the same rights as individuals is unrealistic. We have given them that right and it should be taken away. Even some that fought for corporate rights were loathe to protect corporate spending rights as a freedom of speech. Former Chief Justice William H. Rehnquist warned that to "treat corporate spending as the 1st Amendment equivalent of individual free speech is 'to confuse metaphor with reality.'" Let's hope their is a swing back towards reality resulting in some real campaign finance reform. Something along the lines of matching rules for small donors or public financing for campaigns would be a start.

Update: I wanted to add one last comment about this. How in the world did the Free Market ideology that is normally applied to economics become the popular ideology for morals, laws and governing? It is a phenomenon that is contrary to our overriding morals, not to mention our primary religion. I hope it comes to an end soon.