It's Not Crazy To Say That Corporate Ads Count As Associational Speech

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James Fallows is not happy about the difference between John Roberts's testimony in his confirmation hearing, in which he said we should be deferential to precedent, and his questioning during oral argument of Citizens United:

And even if Kagan were wrong -- and, she is right -- is it not breathtaking for one appointed Justice, on his own, to decide that he does not like the balance that elected legislators decided on many decades ago, and that many waves of his judicial predecessors have declined to tamper with?

On the merits, Roberts' approach is like the idiot-savant faith in flawless markets that we all recall from Introductory Ec class. The cliched joke about this outlook concerns the economist's refusal to pick up a $20 bill sitting on the sidewalk: After all, if really were a $20 bill, someone would already have picked it up. But the merits of his argument aren't the point. It's the disjuncture between the person who presented himself with "humility" at the confirmation hearings and the man happy to legislate from the bench.

The head of the nation's judicial branch was purposefully deceptive during his "umpire" testimony. Or he had no idea what his words meant. Or he has had a complete change of philosophy and temperament while in his mid-50s. Those are the logical possibilities. None of them is too encouraging about the basic soundness of our governing institutions.

I find this reaction a little odd.  First of all, at least as I've always understood it, during oral argument the judges often ask extreme questions, because they're probing for weaknesses in the case.  That doesn't mean they're endorsing the extreme, any more than employing the infamous trolley problem to explore our intuitions about making tradeoffs that cost human lives, means I think we should stop runaway street cars by throwing people in front of them.

Second of all, surely no one could have expected that John Roberts was going to endorse every single precedent ever decided by the Supreme Court.  In fact, questions about "deference to precedent" are, again at least as I understand it, code for "are you going to overturn Roe v. Wade", not a request for an actual pledge to endorse any and all things the Supreme Court has ever said in its history.  

The description in the first paragraph could just as easily describe sodomy law before Lawrence v. Texas, civil rights law pre-Brown, or indeed, the state of abortion law pre-Roe.  Had Roberts voted for the majority in one of these cases, would we be hearing the same anguish about his lack of deference to precedent?

And respectfully, one does not need to be an idiot savant from Introductory Ec class to think that "Congress shall make no law . . . abridging the freedom of speech" means that, well, Congress shouldn't make any law abridging the freedom of speech, even if that speech is done by corporations.  Nor is it crazy to think that as long as people have the right of exit, their decision not to exit legitimates the ability of organizations to speak for them.

In fact, I think speech through associations is a lot more complicated than I think this post captures.  Many of the organizations we like making political speech don't get any more  supervision from the majority of their members than publicly held corporations do.  I mean, quick, name the charities you were supporting during the last United Way drive!  Pick three of the groups you gave to directly last year, and tell me what issues their lobbyists are working on right now! (Yes, I virtually guarantee that if they're a large state or national group, they have at least one "our man in the capitol".)  Maybe you know the answers to those questions, because you're the sort of motivated and very well informed person who, well, reads my blog.  But the majority of people don't know.  They give to causes because they want to be associated with the vague sentiment.

It's not crazy to think that if you own a company, even through a mutual fund, you want that company to make money.  The corporation spending money to that end is presumed to be advancing those goals.  That it may contradict with other speech you want made is not, itself, proof that it shouldn't be allowed.  Many, many people give to groups that may sometimes be at cross purposes with each other--indeed, if you support a politician, and some group like the Sierra Club, this is virtually certain.  

We don't presume that the Sierra Club gets speech because it flawlessly reflects the views of its members.  I canvassed for environmental groups, and trust me, most of the membership have no idea what the hell these groups do with their money.  Frankly, they have no idea what the hell these groups should do with their money; their own ideas are usually vague, and frequently self-contradictory.   Their donation to the Sierra Club is less an endorsement of its platform than a way to say, "I care (a little) about the environment!"  

But the Sierra Club translates this very loose endorsement into very specific political speech advocating things that many of its members would hate if any of it actually got enacted.  We presume that the Sierra Club's political speech is nonetheless a legitimate use of the organization's money, because if the members hated it enough, they'd take their money elsewhere.  This is the standard you have to apply in nation full of enthusiastic and trusting givers who mostly aren't particularly engaged in the policy process.

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Megan McArdle is a columnist at Bloomberg View and a former senior editor at The Atlantic. Her new book is The Up Side of Down.

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