Uncorrupting Corporate Speech
[November 18, 2002]
By S. M. Oliva
Earlier this week, the
U.S. Supreme Court agreed to review Federal Election Commission v.
Beaumont, a case challenging a fundamental tenet of campaign finance
law—the ban on direct corporate contributions to federal candidates.
application of the overall corporate ban to nonprofit, advocacy
corporations, such as North Carolina Right to Life, one of the plaintiffs
in this case. Under 2 U.S.C. § 441b, no corporation may “make a
contribution or expenditure in connection with any [federal] election.”
The stated purpose of this rule, according to past Supreme Court rulings,
is to “combat the problem of corruption of elected representatives through
the creation of political debts.” The theory, in essence, is that
corporations will only contribute to a candidate if they receive something
in return after the election. This leads to corruption. And even if it
doesn’t, it leads to the appearance of corruption in the subjective
minds of some people.
Of course, corporate
interests still participate in the political process, through lobbying and
political action committees. Campaign finance law is, at best, an
elaborate fiction designed to assuage the socialist tendencies of certain
segments of the population. But the very moral principle behind campaign
finance law is wretched: the notion that corporate money is qua
corruption. In the first place, this indicates an ignorance of the
difference between political and economic power. The former
derives from the use of force, the latter from the exercise of individual
rights in a capitalist economy. In the eyes of campaign finance reformers,
only political power is legitimate; therefore economic power must
be made subservient to the political. Hence, campaign finance laws.
case takes this
ethical concept to its irrational conclusion. Here, the corporations
involved are not for-profit producers, but non-profit advocates. These are
groups that deal directly in the realm of ideas, and their attempts
at campaign expenditures reflect their desire to promote and expand a
particular ideology. Now, this is not to say for-profit corporations are
not also driven by ideas; they most certainly are. The distinction here is
meant to demonstrate the fallacy of the campaign finance reformers
thinking, not to proclaim nonprofits the moral superior of for-profits.
Those who support §
441b’s application to nonprofits are taking the segregation of economic
and political power to the next level: now they wish to divorce ideas
from political power. By restricting the ability of nonprofit
advocates to influence the electoral process, political campaigns become
even less about principles, and more about superficial, arbitrary
concerns. This makes it much easier for unscrupulous, power-driven
politicians (think John McCain) to manipulate the process for their own
ends. That is what campaign finance reform is about, not promoting
democracy, and certainly not securing individual rights.
Having said this, the
Supreme Court’s decision to review
is a good one, even
though the court below actually ruled in favor of the nonprofit groups.
That lower court, the U.S. Court of Appeals for the Fourth Circuit,
managed to create dissension from within the appellate ranks, since the
Sixth Circuit previously held 441b’s application to nonprofits was
constitutional. The Supreme Court must resolve the conflict to ensure
consistent standards for federal elections.
Finally, this case
curiously bears the FEC’s name as petitioner, even though the commission
never sought review of the Fourth Circuit’s decision. Solicitor General
Ted Olson, the government’s chief lawyer in the appellate courts, made the
decision to appeal on behalf of the FEC without their direct consent. This
is Olson’s privilege, and I would not fault him for exercising it here. As
noted, there is a split among the appellate courts that requires prompt
resolution. But Olson’s petition to the Supreme Court, it should be noted,
relied heavily on narrow, technical readings of case law. One hopes that
when briefing on the merits and oral argument take place, the solicitor
general will further explore the “corruption” principle at the heart of §
441b. It’s very difficult to argue organizations devoted entirely to
promoting ideas are dangerous to the democratic process. I know that Olson
will give it his best shot, but ultimately I hope (and suspect) he’ll
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