- The Washington Times - Monday, December 26, 2011


Sen. Bernard Sanders has proposed an amendment to the Constitution to remove First Amendment protections from individuals who gather together to form corporations. New advocacy groups, run by influential media and political figures, are springing up to overturn “corporate personhood” so they cannot participate in elections. Occupy Wall Street chants, “Corporations are not people.” These efforts have one thing in common: They are aimed, in part, at overturning the U.S. Supreme Court’s decision in Citizens United v. FEC, which they claim holds that corporations have the same free-speech rights as individuals and that money equals speech. They argue that until corporations are deprived of free-speech rights, we won’t have “democracy” in America.

Don’t believe it. This effort, if successful, would gut the First Amendment, give the government the power to shut down speakers it deems too influential, establish the institutional press as a preferred speaker and enable politicians to dictate who speaks and how much they may say. It would not return democracy to the people; it simply would give the government the power to censor those who dare to challenge the political status quo.

Mr. Sanders and campaign-finance “reformers” operate from a serious misconception about both the First Amendment and how the court applied it in Citizens United. The opponents of the Citizens United ruling view the First Amendment as a grant of rights to individual persons. It is not; it is a restriction on the power of government to abridge speech. Citizens United merely recognizes that the First Amendment prevents the government from making it illegal for people to speak collectively through a corporation, a union or some other association.

Nor did the court rule that corporations have the same constitutional rights as people. It said instead that the First Amendment - “Congress shall make no law … abridging the freedom of speech” - means the government cannot fine or imprison people for using money from a corporate or union treasury to engage in political speech. Corporations are not people, but they are made up of people, as are unions, marriages, nonprofit organizations and rock groups. To say the First Amendment does not protect speech produced by people acting in concert would mean the government could ban any message uttered by more than one person at a time.

The opponents of the Citizens United ruling also claim money is not speech. This bit of sophistry stems from their refusal to admit that effective speech would be impossible without money to fund it. Try publishing a book, producing a film or television broadcast, or even setting up a website without money. If the government can ban spending for speech, it can ban any and all communications that carry beyond the sound of your voice.

Proponents of amending the Constitution are trying to convince the public that if we “get rid of money in politics,” government will stop handing out favors to contributors. They have it exactly backward: People attempt to influence government because it has so much influence over everything we do. As long as government has vast power, some people will come begging for favors and others will attempt to protect themselves from excessive government control of their affairs. Restricting the free-speech rights of Americans will solve nothing. It will only give politicians cover to continue their efforts to distribute benefits and burdens to their friends and enemies.

It is no accident that those seeking to gut the First Amendment are the same people calling for more and bigger government. They realize that without the facade of campaign-finance laws, a state that picks economic winners and losers can quickly begin to look like a banana republic. Call it the “Solyndra effect.” But as people are free to join together and speak to voters, efforts to endlessly expand the reach of government into our lives will be more difficult. So don’t fall for their arguments that corporations are not people and their speech must be quashed lest they control our lives. If we lose the First Amendment, we will lose the most important check on the one entity that really can control our lives: government.

William R. Maurer is an attorney with the Institute for Justice (IJ.org).



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