The big news right now is that the Supreme Court has ruled in the Citizens United v. Federal Election Committee, striking down provisions of the McCain-Feingold act limiting the participation of corporations and unions in political speech.

The majority opinion (a 57 page affair) can be summarized as, “It’s unlawful for the government to block political speech from associations of people.  It may regulate, but it may not silence.”  Which truly is a reasonable, ethical, and ideologically sound position.  The big news isn’t the sensible decision, but the enormous ramifications this could will have on elections in the U.S.  There’s no question that this decision will lead to an enormous magnification of problems our nation faces with a corrupt legislative branch. Congresspersons will practically need to be sponsored like NASCAR drivers to successfully run for office in a marketplace of ideas that names like Coca-Cola and Walmart can participate in.

There’s certainly a point in my life that I would have cheered this decision has a win for freedom of speech.  Campaign finance reforms, like the one that Change Congress proposes, always have a necessary catch that states “qualifying candidates may receive additional funds from the citizenry.”  That catch is always devastating for third party candidates, the kinds of candidates that might be able to accomplish real change, because the Democrats and Republicans write the terms of “qualification” such that only they can qualify.

The typical resort for third party candidates is to gather “patrons” that would give enormous sums of money and underwrite a significant portion of their campaign.  It’s one of the few viable alternatives when you don’t have a nationwide fundraising apparatus.  (Which is what the Democratic Party and Republican Party really are, if you think otherwise you’re kidding yourself.) Limits on election contributions prevent this type of fundraising.

Ethically, there is no question that election contributions are “speech” and restrictions on speech are generally undesirable.

For those three reasons, as someone coming from a third party political background, I previously would have supported any action to remove restrictions to election contributions.  Even when the Change Congress movement first started, I was hesitant to support it due to the “Citizen Funded Elections” legislation that forms the backbone of the movement.  I loved the ideas, the presentations, and the wisdom from Lessig, but I couldn’t convince myself that additional regulation on free speech would solve.

But time passes, opinions mature, and I’ve changed my mind.  I still believe that regulating election contributions is a restriction of free speech, but now I understand why it is necessary.

Corporations and unions are just associations of people!  It’s unethical to suppress free speech just because people have joined together to make themselves heard.  Corporations and unions are just economic representatives, just like legislators are government representatives.

That was certainly my opinion and it’s completely wrong.  It’s easy as a person that values economic freedom to see corporations in the idyllic light that capitalism shines on them: associations of people to accomplish greater things than can be accomplished alone.  But that light is deceptive, and that is not what a corporation is.  A corporation is a mechanism for limiting liability.

There are inherent risks to doing business in a society, and anyone doing business on their own has to consider more than just the fiscal and economic repercussions of their actions.  The social repercussions can be significant motivating factor in an individual’s business decisions.  Even on a small scale, pollution makes your neighbors hate you, unsafe practices can ostracize you from your social circles, bad-deals destroy your reputation. The corporation is a way to allow owners to invest in a company without any of the social risks of participating in society.  If a company that you own a share of pollutes the environment while operating far away from your home, your neighbors won’t associate that action with you.  If a company you own shares in participates in unsafe practices or fraud, you won’t be ostracized from your friends.  In fact, a company can perform socially irresponsible actions, make a fiscal and economic profit, and then just dissolve and let all the shareholders keep the profits before the social ramifications of those actions return.  In the most literal sense, corporations are sociopaths.

Because of the legal construction of the corporation, it is absolutely necessary to regulate the behavior of corporations in ways that are unethical for individuals.  If we the people have chosen to allow an association of people to act without the social repercussions inherent and necessary to maintain a peaceful society, then we the people must be willing to extend regulation to force corporations to internalize social harms into their decision making. It is not only ethical to do so, it is unethical not to do so.

Freedom of speech is a critical part of a functioning society, and political speech is the most important, most essential type of speech to democracy.  How can you limit election contributions and claim to have free elections?

One thing is for certain, freedom of speech is absolutely a critical part of a free society and political speech is arguably the most important form.  (The Supreme Court has supported this position consistently.)  But this argument misses an important difference between “political speech” and “election contributions”, and the difference hinges on this quote from Frédéric Bastiat:

We must remember that law is force[.]

Speaking persuasively to convince your fellow citizens on political topics is fundamentally different from making law.  Law is force.  As such, paying a politician to take office is paying for force.  It shares some important similarities to paying for other services, like hiring a gardener or even like hiring a contract killer.  No one would argue that “political speech is absolute, hiring an assassin to remove someone from office should be protected!”  But at the same time, you can contribute to an election in order to have a person (well, a group of people) imprisoned or to redistribute wealth in your own direction.  Hell, that’s what “pork” is.

So it’s critical that we draw a line somewhere.  While anyone should have the unlimited ability to buy and display a Public Service Announcement about an issue or topic that’s important to them, it is a different thing to contribute to an election or to lobby congress.  One type of political speech persuades people, the other type of political speech buys laws.  Persuading your fellow citizens is not the same as persuading your lawmakers.

Those concepts combined are why I came to agree with the entire platform of Change Congress.  We need Citizen Funded Elections because they sharply limit the influence that large, often literally sociopathic, groups have on the laws of our nation.  Freedom of speech, especially political speech, doesn’t matter if laws are for sale.  This systematic corruption is already the status quo; the recent ruling in Citizens United v. FEC will make it worse.  But, importantly, this ruling does not diminish the effectiveness of the Citizen Funded Elections solution, it just makes it all that much more critical.