In Defense of Special Interests - and the Constitution

The recent Supreme Court decision demolishing a key provision of the McCain-Feingold Campaign Finance Reform law has exposed a disturbing lack of understanding regarding the First Amendment and of the nature of rights in general. The New York Times reports:

“[A] bitterly divided Supreme Court on Thursday ruled that the government may not ban political spending by corporations in candidate elections. … Though the decision does not directly address them, its logic also applies to the labor unions that are often at political odds with big business.

“President Obama called it “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”

The New Jersey Star-Ledger chimed in with:

“More than a century ago, President Teddy Roosevelt saw what today’s court is blind to — that unleashing corporations to drench our political campaigns in special interest money will drown out the voice of regular citizens.”

Leaving aside the ambiguity of the idea that the Court overturned TR’s Tillman Act of 1907, both the Star-Ledger and the president have struck at the very heart of America’s key Founding principle. They have done this by attempting to distinguish between voluntary economic organizations and “everyday Americans” or “regular citizens”.

The idea that the government can choose which people rights apply to and which people they don’t, and in what manner, is fundamentally at odds with our most basic ideal – the doctrine of equal, unalienable individual rights. Corporations and labor unions (including “big oil, Wall Street banks, [and] health insurance companies”) represent specific types of legal contractual arrangements under which a number of individuals agree to associate for a specific purpose[s]. But the “rights” of corporations and unions are derived from the rights of the shareholders and members, respectively. Thus, to violate the rights of corporations and unions is to violate the rights of individuals. Groups, as such, have no rights. The Majority opinion apparently grasped this principle:

“If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, which included the four members of the court’s conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” (Emphasis added.)

It must be remembered that a crucial phrase in the First Amendment guarantees the right of individuals to form lobbies (special interests). That phrase guarantees “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” A “peaceable assembly” is a pressure group, special interest, lobby, or any group by any other name one wants to ascribe to it, including corporations and unions.

The key attribute of individual rights as understood by the Founders, and embedded in our Founding documents, is the concept of unalienability. This means that rights are inseparable from the individual – every individual. They are an endowment from the “Creator” (whether understood to be God or Nature), based on man’s nature as a rational being, and are thus held equally and at all times by each individual as an attribute of his birth. A person can forfeit his rights only as a consequence of violating the same rights of others, as in the case of a criminal. But no one, whether acting as a private citizen or as a government representative, may arbitrarily or unilaterally rescind anyone’s rights, nor grant special rights to some but not to others. When government does act in this fashion, it has obliterated the concept of rights by declaring that rights are not unalienable: which means, it has negated everyone’s individual rights.

Rights are the exclusive attribute of individual human beings, and only individual human beings. Rights do not belong to groups of any kind … not society, the tribe, the family, the corporation, nor the union. In a series of three essays, philosopher Ayn Rand lays out the nature of rights and the governments’ role in relation to those rights. In an in depth discussion of the nature of rights as they relate to groups, entitled Collectivized “Rights”, she explains:

“Any group or ‘collective,’ large or small, is only a number of individuals. A group can have no rights other than the rights of its individual members. In a free society, the ‘rights’ of any group are derived from the rights of its members through their voluntary, individual choice and contractual agreement, and are merely the application of these individual rights to a specific undertaking. Every legitimate group undertaking is based on the participants’ right of free association and free trade.

“A group, as such, has no rights. A man can neither acquire new rights by joining a group nor lose the rights which he does possess. The principle of individual rights is the only moral base of all groups or associations.” (Emphasis added.)

So, when the Star-Ledger distinguishes the rights of corporations (and unions) from the rights of “regular citizens”, it must be remembered that those corporate rights derive from those very same “regular” citizens the Editors presume to champion. The Editors raise a bogus argument:

“What if members of a union, or shareholders of a company, disagree with the political cause that’s being pushed?”

Unions and corporations are voluntary associations among people. The shareholders and/or rank-and-file members elect their respective officers. They determine the by-laws. If they don’t like the political advocacy policies of their own officers, who presumably are acting in the best interests of their organization, they can agitate for change, or sell their shares or quit the union. They can also require the officers to issue a simple disclaimer, such as: “The preceding message does not necessarily reflect the opinions of the shareholders.” In any event, the government has no business interfering in the internal affairs of unions and corporations where no rights violations have taken place.

But what of the argument that unfettered political spending by special interests with plenty of cash will “corrupt democracy” or gain undue “influence” over the legislative process? The special interest, or pressure group, game is indeed a repulsive one. But the special interests are a creation of a government that has gained massive control over all aspects of our economic lives.

Former Associate Justice of the New Jersey Supreme Court, Gary S. Stein, offers his view of what the essential issue is in this case, called Citizens United v. Federal Election Commission:

“At its essence, the court’s 176 pages of opinions turned on that disagreement between the majority and the dissenters on whether unlimited corporate spending on federal elections could lead to corruption or an appearance of corruption, which was the decisive legal issue in the case. On that critical question, the argument of the court’s conservative majority appears to be untenable.

“It is a matter of common knowledge that, even without the Citizens United decision, corporations and their lobbyists have exerted an enormous and destabilizing influence over elected officials, influence clearly sufficient to qualify as corruption or its appearance.”

Notice the perverse inversion here. Elected officials, whose actions are backed by the government’s unique powers of legalized physical force, do not represent “an enormous and destabilizing influence”. The lobbyists, whose private corporate (or union or special interest) clients have no such coercive powers, are to be forbidden from using their First Amendment rights, because it does constitute “an enormous and destabilizing influence”. The political class, argues Mr. Stein, should have free reign to trample the rights of private citizens without having to answer to the people most directly affected by their exercise of the arbitrary regulatory power of the state – except where allowed by the political class. Private lobbying automatically constitutes “influence clearly sufficient to qualify as corruption or its appearance”, but not the actions of “elected officials” whose decisions coercively interfere with the private citizen’s right to act on his own judgement in his own best interest.

Notice how cheaply our free speech rights are to be abandoned - that your outspoken voice could lead to corruption or an appearance of corruption. That your voice may come in the form of a voluntary group association that the government deems inappropriate or not in its “compelling interest” does not change the basic premise. The same argument could be used to restrict any private action. Driving your car could lead to the violation of speeding laws or an appearance that you are heading for a convenience store to rob. Silly comparison, you say? Not in principle. And not when measured against the distinction lost on the entire debate – the difference between private action and government action.

To be sure, there is enormous corruption inherent in a mixed economy, where the coercive floodgates of government power are open to anyone or any group that happens to gain short-term control of the legislative apparatus. But whether established for defensive or predatory reasons, the private lobbies are the effect. The cause of the corruption is the government’s power to initiate (or threaten the use of) physical force against the private sector; i.e., to redistribute wealth, shackle some companies or industries under regulations while favoring others with subsidies and loan guarantees, establish a broad-based income tax and then use it as a tool to manipulate private behavior, etc.

Justice Stein and others who oppose the free speech rights of “special interests” have placed themselves in the position of defending the power of the state against the people it allegedly “serves”. In effect, they are advocating the establishment of an imperial ruling political class unaccountable to those whom they rule.

But it’s only the powerful big money interests that they oppose, because they “will drown out the voice of regular citizens”. The right to free speech does not mean someone else must automatically finance your speech. It simply means you are free to speak at your own expense. The fact that some group of individuals has the financial means to speak up is not an infringement upon those who don’t. Others are still free to form their own associations for that purpose, if they are so motivated. But according to the Star-Ledger’s logic, if you don’t have the resources to finance your ability to “be heard”, your rights should be protected. But if you manage to acquire a more prominent voice at your own expense, you are “corrupting democracy”. What this perverse line of thought means is if you don’t have the means or the motivation to speak out, you are free to do so. If you do, you don’t. Restricting the free speech rights of private associations of individuals amounts to penalizing those who exercise their rights because they exercise them.

Today we have a mixed economy … a mixture of freedom and government controls. That mixture is lethal to true free enterprise. Freedom means the abolition of physical force from human affairs. To be free from the use of physical force by others is what the “free” in free market means. Put another way, in the private sphere, all human associations are voluntary and thus must be based upon rational persuasion, reason and logic. Government, on the other hand, is the exclusive domain of legalized physical force. It is the only institution in any society that can legally compel conformance to its decisions and policies, unlike any private entity such as corporation and unions. It and it alone has the force of law behind its every activity. (It is for this reason that a proper constitution, based upon the right philosophical principles, is vital to protect society from government.) When government acquires powers beyond its legitimate functions, the protection of individual rights (as it does in a mixed economy), special interests will logically arise to gain access to its powers. After all, a government, like a corporation, is a legal instrument to govern the activities of the individuals who comprise it. But unlike the officers of a fully private corporation, the government official has a gun … literally. All the private corporation can do, as guaranteed by the First Amendment, is to convince the government official to make decisions that benefit (or protect) its interests. It can not act coercively on its own.

Far from “powerful private interests” corrupting government, it is exactly the other way around. Government interference is corrupting the economy. Rational persuasion, the ruling principle of free markets, cannot compete with legalized coercion, the principle of tyranny. When politicians and government bureaucrats acquired the power to control the economic affairs of private individuals and associations, the people had no choice but to get involved in the task of influencing the government officials who directly affect their economic well being. That is their unalienable right. Whether a lobby exists to aggressively seek special government favors or defend against special interest predators doesn’t really matter. Does this lead to corruption? It can and does. But that is the nature of a mixed economy, which has been defined -quite accurately, I believe - as follows:

“A mixed economy is rule by pressure groups. It is an amoral, institutionalized civil war of special interests and lobbies, all fighting to seize a momentary control of the legislative machinery, to extort some special privilege at one another’s expense by an act of government—i.e., by force.”

Special interest politics is a creation of government. Nobody likes the special interest game, but this is a consequence of the growing regulatory powers of government. Restricting in any way the unalienable rights of any of the people to influence the decisions of the politicians and bureaucrats who affect our lives is un-American and puts us on the path to creating an imperial ruling political class.

The First Amendment is a crucial and indispensable tool that a free society has to impose accountability on the government. As can be seen in this case, the First Amendment is incompatible with the regulatory welfare state. Arbitrary government power (a government of men, not of laws), to be maintained, needs protection from the people, sooner or later. And sooner or later, this country is going to have to move toward laissez-faire, or repeal the First Amendment on the way toward dictatorship. That is the ultimate choice. The only way to reduce the influence of special interests while preserving liberty is to reduce the growing regulatory state. Trashing our First Amendment free speech rights in order to protect the politicians and bureaucratic regulators from the constituents that they allegedly “serve” is the path to tyranny.