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Steve Simpson on Continuing Threats to Corporate Free Speech

From The Objective Standard, Vol. 7, No. 2.

I recently had the pleasure of interviewing Steve Simpson, a senior attorney at the Institute for Justice. Among Mr. Simpson’s many accomplishments, he authored a friend-of-the-court brief in the landmark case Citizens United v. FEC, served as lead counsel in v. FEC, helped overturn aspects of Colorado’s campaign finance laws that restricted people’s ability to fund political speech, and helped overturn New York’s ban on direct shipping of wine. Simpson has contributed articles to Legal Times, The Washington Post, the Chicago Tribune, and The Washington Times, among other outlets. He is also the author of “Citizens United and the Battle for Free Speech in America,” which was published in the Spring 2010 edition of The Objective Standard. —Ari Armstrong


Ari Armstrong: Following the Supreme Court’s Citizens United decision of 2010, the left has continued to evade the fact that corporations—including newspapers, nonprofits, and businesses large and small—are composed of individuals with inalienable rights. This enables the left to systematically ignore the violations of individual rights inherent in the censorship of corporations’ political speech. How does the left get away with this? And what motivates them?

Steve Simpson: I think the answer ultimately comes down to what Objectivists would call the anti-conceptual mentality, which results in two key errors in this context. First is the failure to distinguish between economic “power” and political power, or efforts to convince and efforts to compel.

A lot of people (mostly on the left, but often on the right as well) view corporations, “big business,” and the rich as having power over individuals that is similar to the power that governments possess, which is the power to compel. If you think spending money in voluntary transactions amounts to force, then you are going to want to control that spending, even when the money is used to buy speech that attempts to convince people to vote one way or the other.

Second is the failure—or refusal—to understand what corporations are. We often hear that “corporations aren’t people,” which, of course, is true. They are groups of people. More particularly, they are legal entities that are composed of and operated by people who have voluntarily associated with one another and who want to voluntarily associate with others as a legal entity. As such, corporations have the same legal rights as the people who compose them (at least those that people can exercise in cooperation with one another), no more, but no less.

The motives of those who attack corporate speech and Citizens United are twofold. First is the desire for political power. Elections are the path to political power, so those who want that power try to control who can influence the outcome of elections. One way to do that is to restrict who can speak by restricting how they finance their speech.

But I also think that campaign finance laws in general are motivated by a desire to evade the consequences of the political system we have today. Modern government is a political spoils system in which citizens often elect representatives for the express purpose of redistributing wealth, regulating business, restricting property rights, and doling out costs and benefits to various interest groups. These are not just incidental effects of otherwise legitimate functions; they are held out by most people as part of the core purpose of government.

But these functions are inherently corrupt. There’s no legitimate way to take one person’s wealth or property and give it to others, or to prevent him from pursuing legitimate business or associating with whomever he pleases. I think the proponents of unlimited government recognize this on some level and look for ways to make the exercise of that power seem legitimate. They have no problem with a government that possesses almost unlimited power, but they view it as unseemly when people try to use that power for their own benefit. So they try to limit the influence of certain groups or require disclosure of their political activities and the like, as though the power to control the lives of others will become legitimate if it is “democratized” and distributed equally among a larger group of voters or interest groups. . . .

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