Are Corporations Entitled to Free Speech? the Founding Fathers' Words Are Being Used to Vilify Corporate Political Campaign Messages, but Our Nation's History Condemns the Condemners
Eddlem, Thomas R., The New American
Senate Majority Leader Harry Reid of Nevada claimed in a July 16, 2012 speech in favor of the DISCLOSE Act--a bill that would require all organized political expression of any consequential size to report donors to the federal government--that the Founding Fathers feared the influence of corporations:
Mr. President, Thomas Jefferson, one of our greatest Presidents, once said, "The end of democracy ... will occur when government falls into the hands of lending institutions and moneyed corporations." Campaign finance reform protections we have in place--and have had for many years--have solved the problem Jefferson talked about by limiting political spending by corporations.
Critics of the U.S. Supreme Court's decision in the 2010 Citizens United v. FEC case (which lifted most federal regulations on unlimited corporate election speech) have claimed the will of the Founding Fathers supports their efforts to suppress political speech by corporations, citing the above quote by Jefferson and an apparently similar quote by James Madison. Jeffrey D. Clements, president of Free Speech for People, added in congressional testimony July 7, "James Madison, often considered the primary author of our Constitution, viewed corporations as 'a necessary evil' subject to 'proper limitations and guards.'"
Founding Fathers on Speech
Were the Founding Fathers skeptical of corporations generally? More importantly, did they express concerns about corporate political influence, or not contemplate the political influence corporations would exert in the future?
The answers to these questions are as clear as the fact that Harry Reid's depiction of Thomas Jefferson is deliberately misleading. In the highly edited section of the 1816 Jefferson letter that Reid quoted above, Jefferson was inveighing against the central bank of the United States. Several months prior to Jefferson's letter, Congress had issued a 20-year charter to a Second Bank of the United States, an act Jefferson believed unconstitutional.
Jefferson was unfailingly against government curbs on any type of speech. "The people are the only censors of their governors," he wrote to Edward Carrington on January 16, 1787, calling a free press "the only safeguard of the public liberty. The way to prevent these irregular interpositions of the people is to give them full information of their affairs thro' the channel of the public papers, & to contrive that those papers should penetrate the whole mass of the people. The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter." Jefferson did not fear deception by special interests, writing to Judge John Tyler in 1804 that the people "may safely be trusted to hear everything true and false, and to form a correct judgment between them."
James Madison, however, did express some general skepticism of the corporations of his day, though what constituted a "corporation" in Madison's day rarely involved the for-profit business enterprises we think of today. Among those entities classified as a "corporation" in Madison's day were city and town governments, central banks, churches, and a few businesses that operated legal monopolies through special permission of the state legislature. Most for-profit businesses were unincorporated. Madison's words quoted by Clements above came just as the legal monopolies the New York legislature had granted to steamboat inventor Robert Fulton (and others) were crashing to earth in the wake of the 1824 Gibbons v. Ogden decision by the U.S. Supreme Court. The full context of Madison's 1826 letter to playwright and naval commander J.K. Paulding is the following:
The picture you give of both, tho' intended for N. …