Thomas Jefferson would have
said, the more speech, the better. That's what
the First Amendment is all about. So long as the people know where the speech
is coming from.”—Justice Antonin Scalia
Fast food joints do not
need a domestic policy. They don’t have to take positions on things like
same-sex marriage, abortion, or gun control. I am pretty much OK if McDonalds never
tells me whether or not they support the individual mandate. As long as they keep their opinions to themselves, I will be happy as one can be eating food that will kill me. However, if a fast-food chain does take a position on an issue, and that position contradicts my own sense of fairness or political morality, then I am probably going to take my business elsewhere. People are like that--hence the recent dust-up over Chick-fil-A President Dan Cathy’s comment that his company is “guilty as charged” in opposing efforts to extend marriage rights to same-sex couples.
Bully for Chick-fil-A. Many people support this position and will probably eat more Chick-fil-A sandwiches. Many others are outraged and will probably eat there less frequently, or not at all. The Chick-fil-A corporate office can say pretty much anything it wants to say. If they say things that make people upset, they will have to deal with the consequences, which may mean losing business. Presumably, Mr. Cathy wears big-boy underpants and can deal with the consequences of his speech.
But here is a thought experiment: imagine what would have happened if Chick-fil-A had said the same thing anonymously. This is, of course, an absurdity: corporations cannot speak anonymously. Dan Cathy can post random anti-gay comments on discussion boards anonymously, but that is something very different. He can only speak in the name of his company if he uses the name of his company. There is just no way under current definitions of “speech” for a corporation can make an anonymous statement.
Except that there is, sort of, in the bizarre world created by the Supreme Court's Citizens United decision in 2010. Under the terms of that decision, corporate donations to political causes are classified as protected free speech. Current laws allow institutions to donate to "super-pacs" with no disclosure requirements whatsoever. This allows corporations to do the logically impossible and speak, as corporations, anonymously.
Which brings us to the current Republican filibuster of the Disclose Act, which would require political donations above $10,000 to be disclosed. Disclosure is already required, of course, for direct donations to political campaigns; the Disclose Act would apply the same standards to contributions to the super pacs that have emerged since 2010. This legislation is does not limit the ability of corporations to donate as much money as they please to political causes; it simply requires them to acknowledge those donations and accept the same political responsibility for speech-that-is-money as they already do for speech-that-is-speech.
But
political responsibility is not currently on Mitch
McConnell’s agenda. The Senate Minority leader calls the Disclose Act “nothing less than an effort by the government itself to expose
its critics to harassment and intimidation.” Well, no, not really. Or at least, not entirely. We already have laws that protect people from harassment and intimidation. What disclosure laws expose the critics of government to (and its supporters as well) is criticism and economic pressure, which are simply other words for the exercise of free speech by other people. As Justice Scalia wrote in his concurring opinion in Doe v. Reed:
There
are laws against threats and intimidation; and harsh criticism, short of
unlawful action, is a price our people have traditionally been willing to pay
for self-governance. Requiring people to stand up in public for their political
acts fosters civic courage, without which democracy is doomed.
Let’s accept (since we have no choice) that institutional
spending on political advertisement is a form of protected free speech. It does not follow that we should allow such speech to be anonymous. As a consumer, I have a right to know how the money that I give to a corporate entity will be used. And I have a right to criticize, and withhold support from, companies that support political agendas that I oppose. That's not harassment; It's democracy.
