Professor Winkler Weighs in on Citizens United

These are troubling times in the campaign finance “reform” camp. The reformers are increasingly placing its hope, and public relations efforts in  the case of Citizens United v. FEC on the idea that the Court should not disturb longstanding precedent.  During oral argument, we at CCP were tickled when Chief Justice John Roberts brought Seth Waxman up short when Waxman began the “100 years of history meme.” 

Roberts’ weapon?  A brief filed by CCP Advisor Allison Hayward and other campaign finance scholars that deconstructed the Court’s longstanding “history” of reform first developed by Justice Frankfurter in the UAW case over 50 years ago.  This week, on his popular Election Law blog, Prof. Hasen has gone so far as to seek out others to rebuff the scholars’ brief filed in the Citizens United challenge, including Professor Adam Winkler of UCLA.

Toward the end of correcting “misconceptions,” law professor Adam Winkler (no relation to the Fonz), provided some helpful material. Prof. Winkler has spent several years researching and writing on corporate political speech is the author of important law review pieces on the origination of the 1907 Tillman Act banning corporate contributions to campaigns. What is worth noting, though, is the broad agreement reached between Winkler and the scholars’ brief filed by Prof. Hayward. Prof. Winkler does not raise any noticeable disagreement with the scholars’ brief, other than to note that in his personal estimation the desire to protect shareholders is very important. 

While the input of professional academics is important, so too is the on-the-ground experience of practitioners in the field. I have not spent years studying corporate political speech, but I have spent years suing government when everyday citizens, my clients, just wanted to band together, often in the corporate form, to speak. And I have spent years holding judges’ hands to show them that corporations are not the automatic bogeymen that “reformers” work so hard to make them out to be. Usually, when I have wound up in courts with clients, the citizens I represent found themselves there because government bodies enacted laws based on the well-intentioned but ultimately misguided ideals developed by the campaign finance “reform” community.

What’s missing in Prof. Winkler’s assessment of shareholders and the corporate speech “problem” is an acknowledgement of the sovereignty of individuals assembled together in the corporate form. In his “misconceptions” essay, Prof. Winkler questions the strength of Chief Justice Roberts and Justice Scalia’s assertion that shareholders possess adequate remedies under the law if corporations use their funds foolishly: sell your stock. Prof. Winkler then instructs us that even a “century ago, this argument was rejected. What was an insurance policyholder supposed to do?  Cancel his policy? That would hurt him and do absolutely nothing to return his misspent money. Some remedy.” Therein rest the mistaken foundations of Prof. Winkler’s theory of citizen-mistrust.

Professor Winkler confuses two concepts: free society and society-without-consequences. In a healthy, free society, citizens voluntarily associate, enter into contracts, mutual agreements, and otherwise cooperate to pursue their own ends as well as contribute to the community as they see fit. Because we respect liberty, free will, and personal autonomy, we recognize that — and accept the consequences that — buying a beer at Moe’s Tavern might give extra profits to Moe, who supports the local Green Party that we oppose. Likewise, purchasing an insurance policy might send dividend profits to the Republican party faithful that we detest. Luckily, we possess our own sovereignty over our personal affairs, making these situations easily resolvable in a society that values freedom and personal autonomy.

How corporations use their funds is a matter of shareholder and management arrangement. When we invest in a company, we understand the risk: that the company may take issues contrary to our own personal beliefs. Do we really need a government program to protect us from corporations trying to develop their mission (a deeper purpose) or attain profits? Or can we rest soundly at night knowing that we are perfectly sovereign individuals able to invest or re-invest in companies as we sit fit in accord with our own policy preferences?  In choosing to do so, we give respect to the humanity of each person and their decisions where and how to invest. We also realize that their investors, shareholders, and the purchasing public will eventually call corporations to accountability when they make poor choices (no government program required). But we have to start with a first principle of respecting human sovereignty, individual preference, and choice in a free society, lest we surrender our all to a paternalistic government — the very crux of the Citizens United challenge.

Consider the development of the social justice investment trend in recent American history. People can invest their money in stock portfolios or mutual funds that are environmentally friendly, or do not go to countries that support slavery, or in funds that assist Christian-specific industries. More particularly, consider Whole Foods and John Mackey’s development of “Conscious Capitalism” as a model of freedom and individual responsibility in corporate management. Five percent of Whole Foods’ profits go to charities, the company invests in eco-friendly practices, supports humane treatment of animals, and has developed other innovative corporate practices. Take a moment and walk into any Costco or Sam’s Club. Examine the differences in corporate philosophy at both, with Costco favoring a more social-justice oriented model and Sam’s Club aiming for lower costs and higher profits. As free and sovereign individuals, we can, and should, choose to invest in companies that reflect our personal moral and ethical code. And we should respect others who decide to invest in other corporate philosophies, or not to pay attention at all. Difference of opinion and apathy are no bases for the shedding of constitutional rights. 

While Prof. Winkler rests his theory around a need to rescue individual insurance policyholders, his justification for government intrusion into corporate speech would do much more injury to a free people. Individuals adapt to corporations who use their money in a slipshod fashion. We adjust. We change. We re-invest. We overcome. Government suppresses. Government bans. Government abridges. Government stifles. Like our founders before us, we should trust individuals, not bureaucrats, with these kind of weighty decisions.

Note: This post was updated at 9:52 a.m. on Thursday, Sept. 24.