To my mind, the strongest argument for restrictions on corporate speech is that they promote political equality. Unlike the far weaker argument that corporations aren’t entitled to free speech because they aren’t people, the equality argument correctly assumes that corporations are actually just tools used by people. It then holds that restricting the use of this tool is necessary to increase equality of political influence. To some extent, the argument is correct. Only a minority of people can effectively use corporate speech to express their views and wield political influence. Eliminating or restricting the use of this tool necessarily reduces inequality, at least in some ways.
The problem with the equality argument is that it considers corporate speech in isolation from other sources of political inequality. If we eliminate corporate speech, those other inequalities will increase in importance. And many of them are actually much greater than the inequality caused by corporate speech, because many fewer people can take advantage of them.
I. Eliminating Corporate Speech Magnifies the Effects of Other, More Severe Political Inequalities.
Consider several categories of people who have vastly greater political influence than the average citizen: celebrities, academics, members of the media, high-ranking government officials and bureaucrats. For example, Curt Schilling’s endorsement of of Scott Brown got extensive public attention and influenced voters because he is a famous athlete. His endorsement had as much or more effect than millions of dollars in corporate expenditures would have. Similarly, I have many times more influence than the average voter because I am a law professor and write for a relatively well-known blog. It doesn’t take nearly as much money for a corporation to offset my influence as Schilling’s; but still probably far more than the average person could afford. If you eliminate or severely restrict political spending by corporations, you greatly increase the relative political power of people like Schilling and myself. Politicians would have even more incentive to seek our support than they do at present.
Moreover, the advantages enjoyed by celebrities, academics, members of the media, and so forth are actually more unequally distributed than the ability to engage in corporate speech. Tens of millions of Americans own stock in corporations, belong to unions (which, as a legal matter, are corporations too), or contribute to nonprofits that use the corporate form (including most charities). Even if you assume that only rich people have enough influence to “really” be able to use corporate speech, there are some 5.1 million millionaire households in the United States. If you’re a millionaire, you can probably exercise substantial influence over the political speech of at least one corporation, if you want to. Even if you aren’t, you can have an impact by donating to one of the many nonprofit corporations that engage in political activism for a vast range of causes, ranging from the ACLU to the NRA to the Sierra Club.
By contrast, only a few thousand celebrities are famous enough for their endorsements to matter. There are perhaps several hundred thousand academics (many of whom work in nonpolitical fields or are too obscure to have disproportionate influence), and about 69,000 media correspondents. Most of the other groups with disproportionately great political power are less diverse in their political views than corporations and the rich. Celebrities, academics and journalists are overwhelmingly liberal. By contrast, commercial corporations have a wide diversity of interests, some of which benefit from liberal policies such as broad regulation and protectionism. Nonprofit corporations are more diverse still. If you (mistakenly) assume that corporate speech simply represents the interests of the rich, they too are more diverse than any of the other groups with disproportionate political influence. For example, exit polls show that Barack Obama actually won a slightly majority of the votes of people with a household income over $200,000 per year (the top 6% of the population). Even among the super-rich, there is a large liberal contingent.
II. Inequality and Merit.
Some resist the analogy between corporate speech and other causes of political inequality on the grounds that the latter are the result of merit. For example, one might believe that people become celebrities, reporters, and academics on the basis of merit, while influence over corporate speech is largely a product of wealth. This is a fallacious distinction. Yes, celebrities and others got where they are in part because of merit. But luck, genetics, family connections, and other morally arbitrary factors play a big role as well. No matter how hard I might have worked on improving my fastball, I could never have made the major leagues, much less become a star pitcher like Schilling. I also don’t have the acting talent, singing voice, or good looks needed to become an entertainment industry celebrity. Similarly, a person with an 80 IQ probably could not become a legal academic, even if he worked much harder at it than I did. Moreover, many of the wealthy also acquired their wealth in part because of hard work and original insights. On average, it’s hard to see why their disproportionate influence is less “deserved” than Schilling’s or mine.
In sum, restricting corporate speech simply exacerbates imbalances of political power caused by other, much greater inequalities. Maybe restricting corporate speech could promote equality if it were part of a much more comprehensive regulatory effort. For example, government could also restrict political advocacy by reporters, academics, celebrities, and others with disproportionate influence. There are, of course, good reasons not to do any such thing. But if you eliminate one cause of inequality while leaving other more severe ones in place, the net impact is actually to increase political inequality overall, not reduce it.