Debates over campaign finance regulation are typically dominated by arguments over what counts as speech and who counts as a speaker. While the battle to define speech is unsurprising given the First Amendment’s expansive protection of it (“Congress shall make no law… abridging the freedom of speech”), this very narrow battleground leaves little room for new insights or compromise, as others have noted.
Another unfortunate consequence of focusing on definitions is that it pushes campaign finance debates towards the abstract and hypothetical, and away from an equally valuable analysis of how speech actually operates in practice. Failing to anchor discussions to the actual conditions of reality can cause arguments to spiral out of control into the absurd, and thus lead us towards bad laws and regulations.
A good example of this can be found in the attitudes people carry towards corporate speech. Confronted with the abstract question of who should qualify as a speaker able to influence public opinion, many people feel that for-profit entities should not hold sway. The slew of constitutional amendments being proposed in state legislatures following Citizens United, which generally stipulate that free speech applies only to natural persons, exemplifies this sentiment that corporations just shouldn’t have a voice in public life.
This assumption is relied upon heavily to justify proposed restrictions on corporate speech, but it breaks down almost immediately in practice. Our minds like tidy categories, and so when we picture “corporate speech influencing voters,” we tend to do so in its simplest form: direct advocacy, telling voters who to support or oppose. But in the real world, corporate speech and political influence take many forms that aren’t so easily recognized, categorized, or controlled. For starters, news reporting is a major source of information and a forum for competing ideas in elections, and most newspapers and television stations are owned by corporations. Published written works have long been the most common forum for debating political theories and ideas, and publishers and booksellers are mostly corporations too. The history of pop culture is filled with films and music that similarly influenced political ideas, from Vietnam protest songs to Michael Moore movies and beyond. Again, this expression was produced and distributed primarily by corporations.
For another example, consider Tuesday’s Mother Jones article synthesizing several academic studies on the effects Hollywood films have on political views. The article names five films – JFK, The Day After Tomorrow, The Cider House Rules, Malcolm X, and All the Presidents Men – that have been shown to (at least temporarily) influence viewers on political issues such as trust in government, climate change, abortion regulation, racial discrimination and freedom of the press. This really shouldn’t be surprising; we wouldn’t go to movies if we didn’t expect them to have some effect on us, but it illustrates the complicated reality of how speech actually functions in society. Calls to regulate or restrict corporate spending on speech are commonplace, but they never seem to be directed at the Washington Post, or CNN, or Barnes and Noble, or Hollywood. Most of the people who believe corporations shouldn’t have speech rights would likely oppose the government editing movie scripts to ensure they have no political impact, but that’s the logical extension of arguing that corporate speech isn’t speech and any influence it holds over voters is illegitimate.
Even if you took the radical position of saying it would be desirable for government to try to ensure corporations were not influencing political views, it would be impossible to do so. Audiences can take unintended messages from expression, or subvert them to their own uses. The idea that government could cleanse films, music, books, and other expression of anything that might affect someone’s political views can’t be seriously entertained.
By arguing in a vacuum instead of in reality, advocates on both sides are doomed to squabbling over issues where little disagreement actually exists. There’s clearly a role for corporate speech and its influence on public life. Advocates for greater regulation of the political process may disagree with us on the extent of that role, but denying it entirely is the sort of reality-free raving that damages their coalition’s credibility and derails productive conversations about how to build a working body of campaign finance law.
