OEDEL: First Amendment Frankensteins

May 18, 2014 

Liberals lambaste corporations and PACs for their outsized influence in politics, but liberals seem blind to an even bigger institutional political speaker: government itself.

Since the 1977 Supreme Court case of Wooley v. Maynard, government has been accorded constitutional rights to spin ideologically partisan messages at public expense. The Obama administration has unleashed that power to mount an incessant public relations campaign, at a staggering cost, to defend and sell Obamacare to a skeptical public.

Georgia’s Health Care Freedom Act, hurriedly passed at the end of Georgia’s latest legislative session, is an attempt to fight federal fire with a state candle. The act’s sponsor, Republican Rep. Jason Spencer, described it as a way to show that it’s “possible to stand up to the federal government in a constitutional and pragmatic way” by helping Georgia to speak as one on matters of governmental provision of health care.

The act, though, is both incoherent and unworkable, prohibiting state officials, even “when acting on personal time without using state resources,” and state school teachers and professors “providing bona fide educational instruction ... to advocate or intended to influence (sic) the citizens of this state in support of the voluntary expansion of eligibility for medical assistance.” It’s as if only the state speaks, and officials don’t. The opposite is truer.

Nonetheless, liberals might tread carefully before maligning the deeper motivation behind Georgia’s act. The concern among Georgia conservatives that gave rise to the recent act is shared by liberals. All worry about the growing political dominance of institutional speakers, be they governmental or corporate.

Wary of corporations and other private institutional “speakers,” 40 liberal senators are proposing a constitutional amendment that would permit Congress and the states publicly to fund political campaigns and restrict nongovernmental funding. Retired Supreme Court Justice John Paul Stevens is pushing an amendment that would undo the 2010 Citizens United decision.

In his 2010 State of the Union address, President Obama openly criticized Citizens United as having “reversed a century of law to open the floodgates for special interests” to bankroll political campaigns.

The core problem, though, is deeper than Citizens United. That case only extended the mistaken logic of a 1976 decision, Buckley v. Valeo. There, the Supreme Court equated money with speech for First Amendment purposes, striking candidate self-funding limits and aggregate campaign limits. Sure, money talks. But spending money to squelch others’ speech isn’t what the First Amendment’s framers sought constitutionally to protect.

We can trace the relevant legal issues even further back than Wooley and Buckley. In an 1819 case involving Dartmouth College, Chief Justice John Marshall characterized Dartmouth as having, “if the expression may be allowed, individuality.” It made sense then to allow a small college to stand up to the state of New Hampshire. However, institutions later jumped a constitutional fence into the First Amendment garden, originally meant just for people.

As the size of governmental agencies, corporations and other institutions exploded, the courts ill-advisedly allowed them constitutional status as super-speakers. Institutions of various stripes have therefore become First Amendment Frankensteins -- dominant, threatening and enlivened by the faulty premise that unnatural things can speak as people.

So now we’re in a constitutional pickle, with fictive institutional “people” hectoring and bullying the public under constitutional cover. Right and left see different sides of a common problem.

Speech rights were originally understood only to protect people in the flesh. Now, the law only effectively protects those few elites in cabals that control well-funded organizational leviathans. Most others are drowned out.

Democrats’ half-baked notions of constitutionally restricting only corporate speech, leaving government and nonprofit speakers free to dominate political discourse, would produce political imbalance. Republican alternatives like Georgia’s Health Care Freedom Act just add more Orwellian institutional speech to the din.

The best answer is to return to original understandings. That is, neither corporations nor government agencies, neither PACs nor nonprofits, neither the states nor the federal government, are “speakers” for First Amendment purposes. And money isn’t speech.

We, the people, speak. Let’s get back to civil discourse among ourselves.

David Oedel teaches constitutional law at Mercer University law school.

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