Nexus: Chapman's Journal of Law and Public Policy

The First Amendment of our Constitution states that “Congress shall make no law…abridging the freedom of speech, or of the press…” This right has been vigorously protected throughout the years since the creation of our great nation. Some have argued that to prevent corporations from donating treasury funds to a specific political candidate’s campaign would be a violation of that corporation’s freedom of speech. However, is this really the freedom protected under our Constitution?

To answer this we must first determine whether or not investment in a particular candidate’s is in fact speech. Overtime, courts have held that the first amendment is meant to protect “expressions” not just literal speech. Therefore, many have argued that through campaign finance investments, corporations are expressing their endorsement for a particular candidate. However, are they really expressing any endorsement, or simply buying political power?

Many have argued that corporations in the United States are becoming too powerful, and are controlling our government. This argument is based on the fact that most laws that are passed by our legislature and enacted into law are backed by some large corporation who invests billions of dollars in support of that law. Corporations are willing to invest abundant amounts of money in politics because without the government and favorable laws, they would not be able to be as profitable as they are. Take The Walt Disney Corporation as an example. This company has invested significant amount of money over the years protecting the brand of their poster character, Mickey Mouse. The image of this character and all that is associated with it is worth billions of dollars to The Walt Disney Corporation simply because they have built their entire company around that one character. Therefore, when it came time for the Mickey Mouse character to fall out of copyright protection and into the public domain, The Walt Disney Company went on a vigorous lobbying mission to have the copyright duration extended so that the face of their company could not be copied by others. With the amount of money that this company has, and the amount to be lost if Mickey Mouse were to fall into the public domain, of course The Walt Disney Company succeed in its mission, and in 1998, the copyright term was retroactively extended another 20 years. It will be interested to see what happens after this 20 year period is up, and the threat of Mickey Mouse falling into the public domain looms again.

This is just one example of corporations exercising their power over the government to get what they want. I think the biggest fear that people have is that if corporations are able to freely participate in campaign finance, they will be able to rule our nation instead of those elected by the people. Some argue that this would kill democracy.

Therefore, we now have two conflicting views that our nation was founded on: the freedom of speech and democracy. Some argue that if we do not suppress the freedom of these corporations to invest in campaign finance, that we will essentially be destroying our democracy. Therefore, they argue that we must compromise in order to protect democracy; we must considering suppressing the “speech” of these corporations. Of course the other side of this debate argues that this freedom of speech is an essential part of our Constitution and therefore it should not be abridged no matter what the consequences. Therefore, we come to a stand still of which is more important, the freedom of speech or democracy? However, there could be another alternative?

Overtime, courts have held that the government can regulate speech if there is a compelling government interest. Therefore, one could argue that the compelling government interest is to protect democracy, and let our citizens know whom they voted for and that that person is the one making the decisions, not the corporations behind them. Therefore, under this argument, the government would not be in violation of the First Amendment if it passed any sort of regulations on corporations’ investments in campaign finance. However, one must beware because if the government is granted this power, it could take it too far and run into the realm of suppressing speech without the requisite compelling interest.

One regulation proffered at the Symposium entitled “Citizen’s Divided on Citizen’s United: Campaign Finance Reform and the First Amendment” that I found exceptionally compelling was that offered by Ms. Ciara Torres-Spelliscy. She mentioned that in the U.K. there is a full disclosure doctrine in place in which candidates must fully disclose where all of the funding they received during their campaign came from. She mentioned that a full disclosure bill is currently in the stages of attempting to become law, however the future is looking bleak for such law because of the corporate interests. However, I think such a law would go a long way in solving the issue posed by the corporations’ interests in investing in campaign finance and the First Amendment issues in preventing those investments. I think that if candidates were required to disclose information about where they got their financing and who was behind their campaign, this would quell some of the fears that individual citizens would not know who they are voting for. If citizens were informed of what corporations had invested in a particular candidate, they would likely know what interests that candidate would be likely to support. Therefore, I think that this full disclosure regulation would make a big step towards finding a middle ground between these two issues.

Another compelling argument that Ms. Ciara Torres-Spelliscy made was that shareholders of a corporation also have a lot to worry about when essentially their money is being invested in supporting a candidate that they may not necessarily agree with. This full disclosure regulation would also go a long way in solving this issue because with knowledge of the decisions their board of directors has been making regarding investing and supporting certain candidates. If shareholders have knowledge about what candidates a particular corporation is funding, they could make a conscious choice to buy or sell shares in that corporation based on their opinions of that candidate. This is known as the Wall Street Rule: that if a corporation is doing something which the shareholders don’t like, the shareholders can sell their stock on the market and no longer have an ownership interest in that corporation. Although Ms. Ciara Torres-Spelliscy argued that shareholders would not likely go out and sell their shares with this information, if the shareholder is actually an active shareholder involved with their investments, they have this as a viable option if they are unhappy.