Treyton Zanutto, Texas A&M University

AB S T R A C T

This paper evaluates the philosophical and legal issues surrounding corporations using money as speech in political campaigns. Due to the extreme complexity of the problem, this paper will briefly cover the history of money being viewed as speech before moving on to evaluate the argument presented by opponents and proponents of utilizing money as speech. After summarizing the various arguments of both sides, this paper raises the concerns and dilemmas inherent in the concept of corporate personhood. In the conclusion, it is found that while the proponents have the stronger argument, it is not all-encompassing.

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The extensive utilization of money in politics is highly controversial. Often secret, large donors are frequently perceived as having an undue influence on political outcomes. However, it is often said that restricting the use of private funds would violate freedom of speech. This dilemma creates several legal, ethical, and practical debates. Ultimately, the question must be asked: Should the use of money be considered part of exercising the freedom of speech?

The modern case with the most influence on the use of money as the freedom of speech is without a doubt Citizens United v. Federal Election Commission. This case overturned a great deal of historical precedent and is the basis for nearly all modern literature on the debate over using money as speech. The case was an interesting one. The discussion was set into motion when "In January 2008, appellant Citizens United, a nonprofit corporation, released a documentary critical of then-Senator Hillary Clinton, a candidate for her party’s Presidential nomination.”1 The film was controversial because by financing it, Citizens United seemed to violate existing election laws by the proximity of the film’s release to the election. Still, Citizens United claimed that preventing the film’s release violated the First Amendment. These claims fueled a debate around corporate personhood and whether or not corporations were entitled to the same rights as people. Some worried that if corporations could be limited in their spending rights, then so could anyone. Others worried that if corporations have speech rights, nothing stops them from exercising other rights like voting. The Supreme Court concluded, "We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers."2 This conclusion tactfully avoided a definite conclusion on corporate personhood and ensured Citizens United’s victory in the case, solidifying the court’s position that corporate funds qualify as freedom of speech under U.S. law.

The position of the court is clear. Under U.S. law, the use of private funds is considered to be exercising the freedom of speech. However, this decision was not unanimous, overturned a great deal of precedent, and remains controversial today. The arguments made for and against must be explored to understand the debate and conclude whether or not private funds should be considered speech. A clearer picture of what should be done about using private funds as speech will be developed

1. Citizens United v. Federal Election Com’n, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010): 310. 2. Citizens United, 341.

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by exploring both sides of the discussion concerning the Citizens United case.

There are several reasons to be skeptical of the idea that money is speech. One of the most apparent criticisms is that money is not speech in the literal sense. Opponents of using money as speech will argue that money should be viewed "as a form of conduct related to speech—something roughly equivalent to the physical act of picketing or the use of a sound-truck.”3 This viewpoint on the use of money would allow for limited regulations and sensible laws on how money may be spent. This viewpoint is typically justified by pointing to previous cases such as United States v. O’Brien. The O’Brien case is particularly relevant to the view that actions close to speech but not actually speech can be regulated. In the O’Brien case, the Supreme Court ruled that those burning draft cards could be convicted under a statute that banned such actions.4 The relationship between spending money and burning draft cards is easy to see. Both are physical actions meant to convey a message. Both are related to speech but not quite speech. United States v. O’Brien found that the act of burning draft cards could be legally sanctioned. Likewise, the argument goes, money should be equally subject to federal regulation as spending money is also an act adjacent to, but not quite, speech.

A common and related argument against viewing funds as speech is that the issue should not be subject to First Amendment concerns. This argument is based on the precedent set in the case Police Dep’t v. Mosley. In that case, the Supreme Court ruled that "Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”5 Those opposed to treating money as speech argue that this precedent supports their perspective. Putting restrictions on spending money does not restrict any speech based on its message, ideas, subject, or content. It simply restricts one method in which speech can be supported to limit electioneering and prevent corruption.

Additionally, opponents of viewing money as speech argue it unfairly empowers the wealthy in the political process. Before the Citizens United case, there was Buckley v. Valeo. Like the Citizens United case, the Buckley case ruled in favor

3. J. Skelly Wright, "Politics and the Constitution: Is Money Speech." Yale Law Journal 85, no. 8 (July 1976): 1006, Law Journal Library - HeinOnline.org (tamu.edu). 4. Wright, “Politics and the Constitution,” 1007. 5. Wright, “Politics and the Constitution,” 1009.

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of treating money as speech. However, unlike in the Citizens United case, in the Buckley case, the court reasoned, "it is hard to see how a democratic nation can have a stable government if it does not permit intensity of feeling as well as numbers of adherents to be reflected in the political process. . . Campaign contributions represent a means by which intensity can be shown.”6 This reasoning would entail that the use of money as speech cannot be limited since it is a highly efficient way to show the intensity with which one holds a belief. The more intensely someone believes in something, the more they will be willing to spend on it. Opponents of speech as money claim that this reasoning is flawed and shows the misconceptions that have led to court decisions that they believe are wrong. On the subject, United States Circuit Judge J. Kelly Wright stated,

Now it is true that a government which hopes to maintain stability must preserve for its citizens some means of demonstrating intensity of feeling. The plaintiffs, however, evidently interpret intensity not from the standpoint of the potential contributor, but from the standpoint of the candidate or official who is the target of the intensity.7

The argument against viewing money as speech, as articulated by Wright, is that money expenditure is a poor metric for the intensity of belief. Wright would explain that a wealthy individual may donate a large sum of money to a cause he believes in a little, while an impoverished individual may contribute what little money he has to a cause he greatly believes in. In this situation, one would find it difficult to claim that the poor individual’s beliefs are less intense than the rich man’s beliefs. Due to this mismatch of the intention for treating money as speech and the reality of people’s differing access to resources, opponents of treating money as speech claim that the very basis for thinking of money as speech is deeply flawed.

The opposing side of the debate raises convincing points, but before any conclusions may be drawn, it is vital to analyze the arguments of those who support treating money as speech. As the court currently stands, proponents of treating money as speech seem to have the power of the law to support their claims. As the opponents of treating money as speech have their reasons to be skeptical, the proponents of treating money as speech have their reasons to support the idea.

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Proponents of using money as speech argue that comparing money to a speechadjacent activity and not speech in itself is simply incorrect. Money is used to fund forms of communication, such as the Hillary film in the Citizens United case.

6. Wright, “Politics and the Constitution,” 1013-14. 7. Wright, “Politics and the Constitution,” 1014. 8. Proponents’ Argument

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Proponents of viewing money as speech claim there is little reason to believe that funding this communication is different from using resources to speak in public. The proponents of money as speech compare it to a book by arguing, "It would be odd to say that you can speak at will, but that you are subject to criminal sanctions if you read aloud from a written text whose publication in written form is not protected by the First Amendment.”9 In this view, utilizing the necessary resources to convey information to a broader audience in an orderly manner is protected by the First Amendment. Funds are a tool no different from a book that may be used to further ideas and information.

Furthermore, in a related argument, proponents of viewing money as speech claim the view that the First Amendment should not protect the use of money does not reflect the reality of speech. Treating money as if it is not speech would violate the First Amendment "as it would mean that anyone who uses money to obtain assistance in preparing for political speech has crossed over the line into potentially criminal conduct."10 In this light, any organized method of delivering information where resources were expended would be subject to regulation. Such a view would inhibit all speech as nearly every method of providing information to a broader community requires some resources to be bought or spent in the process. Proponents argue that the ability to regulate the spending of funds or resources in obtaining speech would effectively nullify the first amendment as stopping speech could be achieved by regulating the resources necessary to achieve said speech.

Proponents of viewing money as speech also argue that the concerns about wealthy corporations dominating politics are unfounded. Politicians care more about votes than financial contributions. Financial contributions and campaign advertisements are only as valuable as the additional public support they bring in. Legal scholar Richard A. Epstein wrote about his early professional career:

I appeared in the Pennsylvania legislature on a panel with Joe Doyle, head of the Pennsylvania AFL-CIO, who began his testimony by noting that he represented 2,100,000 Pennsylvania union members. . . I replied that I represented folks from Aetna, Hartford, and other insurance companies. . . No votes. I was far from impressed with the corporate might that stood at my back.11

Epstein’s experience shows the power of corporations is not all-encompassing when faced with large blocks of potential voters. Afterward, Epstein also explains

9. Richard A. Epstein, "Citizens United v. FEC: The Constitutional Right That Big Corporations Should Have But Do Not Want." Harvard Journal of Law & Public Policy 34, no. 2 (Spring 2011): 642-43, Law Journal Library - HeinOnline.org (tamu.edu). 10. Epstein, “Citizens United v. FEC,” 649-50. 11. Epstein, “Citizens United v. FEC,” 654.

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that it is easy for politicians to disparage corporations that refuse to donate or donate to opponents. Attacking large companies can play into populist sentiments of voters and damage the brands of corporations. Between large voting blocks and politicians’ public sway, money does not make politics as one-sided as opponents of money as speech claim.

A final concern is the issue of corporate personhood. Granting personhood to corporations would bestow the rights of an individual onto corporations. Both sides of the debate hold significant worries over this issue. After all, personhood is connected with "inalienable rights by their Creator, which cannot be surrendered to their sovereign, whereas such rights are not conferred on corporations, which are artificial beings.”12 Those opposed to utilizing money as speech point toward the lack of natural rights for corporations as a reason to permit restrictions on their use of funds for political purposes. The lack of natural rights in this view means that corporations should not be granted any form of legal personhood. However, proponents of viewing money as speech claim stripping corporations of all personhood would have dangerous potential side effects that "would render contracts null and void and individuals unable to sue corporations for misdeeds.”13 Which side is correct depends on whether a natural law or realist outlook is better for addressing the issue of corporate personhood and the use of speech as money.

Both sides of the debate formulate excellent and convincing arguments. The discussion raises several grave concerns about how the relationship between money and speech should be handled. One key point in the debate is whether money is more similar to a protest or a book. If money is more similar to a protest, then regulations seem to make sense, but if it is more similar to a book, then regulations appear to be unreasonable censorship. The issue is that money contains similarities to a protest and a book, and a consensus too far in one direction could raise more issues.

12. Patricia L. Nemetz, “The Good, the Bad, and the Ugly of Corporate Personhood and Corporate Political Spending: Implications for Shareholders." Business and Society Review: Journal of the Center for Business Ethics at Bentley College 121, no. 4 (December 2016): 577, https://search-ebscohost-com.srvproxy2.library.tamu.edu/login.aspx?direct=true&db=phl&AN=PHL2344731&site=ehost-live. 13. Nemetz, “The Good, the Bad, and the Ugly,” 585.

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If money is treated as speech, then the question must be asked, ’How justified are current regulations on protests?’ If money is treated as a protest, the question is, ’What prevents books from being regulated in a similar matter?’ On this point, it is likely better to treat money as being closer to books. It is better to risk an undue increase in freedoms than reducing one’s natural right to free thought and peaceful expression of those thoughts. Curtailing too significant a growth in individual freedom is far easier than expanding rights that the state has restricted. By treating money as similar to books, undue risks to civil liberties may be best avoided.

The first amendment’s applicability to the issue is the next subject of great debate. Opponents argue that it does not apply due to the first amendment covering a particular subset of actions. Proponents argue it does apply due to the utilization of money being necessary for carrying out those actions. The opposition argument, in this case, seems to be less convincing. Restricting access to speech through sanctioning the resources required for speech is dubious at best. However, the opposition raises a compelling point and claims that stating there is no difference between words and dollars denies reality. It would be best to identify money for what it is: a resource required for speech. It is a tool without which one cannot utilize their first amendment rights. To put money on the same pedestal as speech would be a mistake, but to put in place any restriction on money used for speech that was not required to prevent the violation of an others rights is unjust.

As for the concerns over money empowering the rich and powerful at the expense of the general population, the concerns are exaggerated by opponents and downplayed by proponents of viewing money as speech. Reality is more dynamic than the opponents’ money equals power equation, but money gives an individual more influence, unlike the proponents seem to believe. The proponents are correct when they claim that the desire to appease voting blocs will be of greater importance to politicians than donations. However, a wealthy individual will have more influence over a politician than a poor individual. The general population requires large numbers to outweigh the power of wealth. It is reasonable to presume this logic holds to a greater extent when considering the role of corporations in politics. While political influence is more competitive than many realize, it is essential to ensure that the voters’ interests are protected. It is difficult to grant more power to individual voters without risking the speech rights of all, but a potential solution is ensuring the transparency of campaign donations from corporations. Doing so would allow voters to identify corporations donating to causes they do not believe in and enable them to more easily organize into the large groups required to counter

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the influence of money in politics.

Corporate personhood is a problematic issue. On the one hand, corporations are not people. On the other hand, corporate personhood allows corporations to be sued for legal ramifications against them. Ultimately, the Citizens United case cleverly avoided answering the question of corporate personhood by claiming the issue was fundamentally one of the first amendment and that answering the question of corporate personhood is not necessary.14 For the problem of using money as speech, this is likely the best possible answer, but the issue will rear its head again, and the consequences will have ramifications on the use of money as speech. A possible, but not perfect, solution would be to grant corporations a sort of 2nd class personhood. Personhood that does not originate as human life is not possessive of natural rights, but personhood that may participate in civil society in many ways real people would. Such a solution could allow corporations to represent their interests and utilize money as speech without granting them rights such as voting. However, the resolution of 2nd class corporate personhood is rife with philosophical issues and without real precedent.

Ultimately, the issue of money as speech is complex and without a perfect solution. The proponents of viewing money as speech have the stronger argument, although their argument has its limits. Money is best considered to be protected by the first amendment, but with the caveat that it may be restricted when known to be preventing the utilization of another right or other speech. The use of money should be transparent and open to the voters. Finally, the issue of corporate personhood is likely best avoided in discussions of the first amendment, but it will eventually need to be solved. There will be no perfect solution that addresses all the points made by both sides; however, there may be many tiny solutions that will address most of the concerns on both sides.

14. Nemetz, “The Good, the Bad, and the Ugly,” 571.

Citizens United v. Federal Election Com'n, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010).

Epstein, Richard A. "Citizens United v. FEC: The Constitutional Right That Big Corporations Should Have But

Do Not Want." Harvard Journal of Law & Public Policy 34, no. 2 (Spring 2011): 639-662. Law Journal

Library - HeinOnline.org (tamu.edu)

com.srv-proxy2.library.tamu.edu/login.aspx?direct=true&db=phl&AN=PHL2344731&site=ehost-live.

Wright, J. Skelly. "Politics and the Constitution: Is Money Speech." Yale Law Journal 85, no. 8 (July 1976):