Corporate political activity: Persuasion, coercion and that pesky First Amendment

Richard Hasen has a thoughtful op-ed up at Reuters, commenting on the apparent disconnect between liberals who appear to hate corporate participation in politics (“Citizens United is terrible”) and liberals who like corporate participation in politics (“hey, isn’t it great that corporate America has persuaded Republican governors in Arkansas, Indiana, and now Georgia to veto Religious Freedom Restoration Acts”), and implying that conservative cries of “hypocrite” are misguided.

Professor Hasen argues, if I understand him correctly, that there is no hypocrisy because “corporations before Citizens United had an important role to play in the U.S. political system — and they continue to play that role. Thoughtful critics of Citizens United don’t contend that corporations should have no political rights.” Risking expulsion from the progressive movement, he later adds, “corporations can and should be part of the political conversation.”

Of course, many on the left are hypocrites, or at least very confused, when it comes to corporate political speech, for exactly the reasons some conservatives are saying. But Professor Hasen is surely correct in recognizing that there is another large group of liberals who have taken a more thoughtful and nuanced view of the issue, and Professor Hasen sets out to make sure that they are not dumped in with the Move to Amend (“corporations aren’t people”) crowd. And this is good. It’s good that they exist, and it’s good to avoid lumping everyone into a single pile.

But while it’s good to make these distinctions, and while it’s good that many liberals do recognize that people retain certain rights even when associating in the corporate form, and so eschew their more radical colleagues, I end up a bit baffled by the end game.

Professor Hasen notes that before Citizens United:

[n]othing would have stopped General Motors from spending unlimited sums lobbying Congress or state legislatures for whatever bill its executives liked or disliked. … Corporations could also have set up and run a political action committee, or PAC, to engage directly in political activities. The corporation could control who the PAC supported, paid its expenses and solicited contributions of up to $5,000 each from corporate executives, officers and shareholders.

Though not enthused, he seems comfortable with this. But, he adds, “the problem is not a corporation speaking up, but rather using its wealth in a way that gives it too much sway over the political process.”

But when corporations lobby, or speak out on issues, including threatening to boycott states that pass laws they don’t like (laws, we might note, that are at best tangentially related to their business activities), aren’t they using their wealth in a way that gives them much more sway than most in the political process?

The supposition seems to be that lobbying legislators directly, behind closed doors, is better than lobbying voters publicly to elect good legislators. And economic coercion – trying to inflict economic harm on the voters of a state for their political views – is better than trying to persuade those voters to change those views by providing information.

This strikes me as rather backwards. Big corporations can afford to operate PACs. Small corporations cannot. Big corporations have full time lobbyists in Washington. Individuals do not. Large corporations have the power to launch economic boycotts. Small businesses do not.

But more importantly, public persuasion, aimed at convincing the voting public, seems to me much more in tune with both small-r republican and small-d democratic norms than does private lobbying for green handouts, tariffs, or favorable regulation or tax treatment, or economic boycotts that seek not to persuade, but to bully. Don’t get me wrong – I don’t favor forcing corporations to do business in states where they prefer not to go, nor do I favor limiting their rights to petition government. But if equality is the thing, if corruption matters, if we think persuasion and an informed electorate is at the heart of democratic self-governance, then doesn’t Professor Hasen have it backwards on all counts? Isn’t the stuff he would allow worse than the stuff he would prohibit?

Professor Hasen concludes with a familiar argument – if only the Supreme Court could be persuaded to be more flexible about the First Amendment, government could regulate all kinds of political speech, and wouldn’t that be great! It could even give Americans free money to then give to campaigns! (Actually, it can do that now.) Or give to others to bundle for campaigns.

But on what possible basis do we think that those bad liberals – the ones whose proposals “deserve condemnation” according to Hasen – would not seek to use this new-found freedom to limit speech to impose a regime allowing favored political activity – such as opposing state RFRAs – while limiting disfavored political activity – such as spending to convince voters to elect the wrong candidates to office? Isn’t guarding against the schemes of those who would limit speech why we have a First Amendment? And who decides who has too much “sway”? Isn’t that decision exactly what the First Amendment aims to take from government?

No matter how one tries to square the circle of campaign finance “reform,” it keeps coming up round.