As most of you are aware, the US Supreme Court this week overturned most of the McCain-Feingold campaign finance law. The legal theory behind this is that corporations are, for the purposes of constitutional protection, legal citizens entitled to constitutional protection, and thus must be allowed free speech just as an individual would. It all sounds very abstract and theoretical, until you start to imagine how things might be if that weren’t true.
Over at the semi-hard core law blog Volokh Conspiracy (these guys are all law professors btw, so this isn’t a bunch of dilettante pony-tails trying to dazzle us with their brilliant legal theories), contributor Ilya Somin wrote a very interesting piece on what the legal landscape would look like had the SCOTUS decided that corporations do not deserve the protection of the constitution:
I. Media Corporations are “State-Created Entities” Too.
The first problem is that, like the “real people” argument, it applies to media corporations as well. On this view, the government would be free to censor the New York Times, Fox News, the Nation, National Review, and so on. Nearly every newspaper and political journal in the country is a corporation. If the Supreme Court accepted this view, it would have to overturn decisions like New York Times v. Sullivan and the Pentagon Papers case.
Wham. That by itself is huge. The same left that loves McCain-Feingold also loves the press’ right to complete freedom, even to out state secrets. Were they really prepared to give that up?
II. The Impact on Other Constitutional Rights.
A second issue is that this logic applies not only to corporate free speech rights, but to all other constitutional rights exercised through the use of corporate resources. If people using state-created entities don’t have free speech rights, they don’t have any other constitutional rights either. After all, the supposed power to define the rights of state-created entities isn’t limited to free speech rights. Thus, government would not be bound by the Fourth Amendment in searching corporate property (including employee offices). It could take corporate property for private use without paying compensation because the Fifth Amendment would no longer apply. It could forbid religious services on corporate property (including that owned by churches, most of which are after all nonprofit corporations). If the Free Speech Clause of the First Amendment doesn’t apply to corporate property, neither does the Free Exercise Clause. And so on.
The left would love that. But it could come back to bite them. ACORN could simply be taken. Abortion clinics would have no constitutional standing. Not even the political parties would be beyond the reach of the government apparatus. At best, that would be a dicey situation.
The rest of the article is more in the realm of legal abstraction, but this shows how these things are all connected, and you can’t start peeing on constitutional rights in one place without it having ramifications all over. That Feingold would think that this is a good idea is unsurprising, but shame on McCain for entertaining such a notion, let alone advocating it. Thank you for your service to your country, but it’s long past time to go away gracefully.
Indecently, why don’t senators ever retire any more? Why do almost all of them die in office in their 80s or 90s?
Tags: McCain-Feingold, SCOTUS, US constitution
