Just about everyone involved in politics is acutely aware of the 2010 Supreme Court decision Citizens United vs. FEC, which held that an ancient ban on corporate campaign contributions violated the First Amendment free speech rights of these artificial “persons.” And most people are closely watching the upcoming Supreme Court review of two claims by for-profit corporations that the Affordable Care Act’s contraception coverage mandate violates their First Amendment right to religious expression.
But as Haley Sweetland Edwards explains in the January-February issue of the Washington Monthly, these two strands of litigation are part of a broader trend–supported, moreover, by an alliance of liberal free-speech advocates, free-market libertarians, and business lobbyists–aimed at elevating corporate interests into constitutionally protected “free speech” rights which threaten the ability of government to regulate commercial activities in the public interest. Via this unconventional mechanism, we may, in fact, be on the brink of returning to the notorious Lochner era of jurisprudence in which social, labor, health, antitrust and environmental regulation of corporations is sharply resisted by the courts as a matter of constitutional law.
It’s the two-pronged left-right nature of the First Amendment-based attack on regulation of corporations that is most curious and alarming:
Beginning in the early 1970s, a new crop of conservative think tanks, clubs, and legal funds, like the Pacific Legal Foundation, the Heritage Foundation, and what later became the CATO Institute, funded by the Koch brothers, formed alliances with the U.S. Chamber of Commerce and other powerful trade groups, in an effort to push an anti-regulatory, pro-business agenda, with expanded corporate free speech rights as a key weapon.
This revolution was aided in no small part by many in the liberal establishment…. Many of the traditionally liberal First Amendment lawyers, like Floyd Abrams, Laurence Tribe, and Walter Dellinger, who made their names in the ’70s as defenders of the oppressed, have in more recent years dedicated themselves to advancing and defending this idea—that the identity, even the corporate identity, of a speaker cannot be a determining factor of whether or not speech is regulated. As a result, they have, along with organizations like the ACLU, lent their talents, as well their credibility and respectability, to corporations’ First Amendment attacks, often finding themselves among unlikely allies, like the National Rifle Association, Monsanto, and Exxon.
The only way to stop this trend, Edwards argues, is to support the nomination of federal judges who recognize and oppose an ongoing “corporate free speech” revolution that increasingly endangers whole generations of federal regulation:
[W]hat’s needed are jurists dubious of both liberal First Amendment purism and radical corporate libertarianism. What’s needed are moderate judges willing to admit that when it comes to commercial information, old-guard conservatives like Rehnquist were right, and so too was Justice John Marshall, when he wrote in 1819, “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.”