Why Are Republicans Upset About Corporate Free Speech All of a Sudden?

Summary

Podcast Summary:

Amicus With Dahlia Lithwick | Law, Justice, and the Courts
Episode: Why Are Republicans Upset About Corporate Free Speech All of a Sudden?
Date: April 10, 2021
Host: Dahlia Lithwick
Guest: Chara Torres-Spelliscy, Professor of Law at Stetson University College of Law

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Episode Overview

This episode dives into the complexity and recent contradictions surrounding corporate political speech in America—particularly spotlighting Republican backlash to corporations denouncing Georgia’s new restrictive voting laws. Dahlia Lithwick is joined by Professor Chara Torres-Spelliscy to discuss the historical roots of voter suppression in Georgia, the role of corporations in political funding, the limits and paradoxes of corporate activism, and the evolving debate over corporate free speech—culminating in Sen. Mitch McConnell’s sudden call for corporations to remain silent on voting rights.

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Key Discussion Points and Insights

1. Historical Context: Voter Suppression in Georgia

• Chara Torres-Spelliscy provides a historical perspective on Georgia's entrenched legacy of disenfranchising Black voters, stretching back to before the 15th Amendment.
  • Georgia expelled 33 elected Black legislators after the Civil War—a decision only reversed by federal intervention ([03:53]).
  • “We have seen people completely disenfranchised for decades in this very state... We don’t want to relive that again.”
    (Chara Torres-Spelliscy, 05:52)

2. Corporate Influence on Politics

• Discussion of the complex ways corporations participate in American politics:
  • Direct giving (state vs. federal rules);
  • Corporate PACs:
    • Funded by corporate employees, officers, etc.
  • Super PACs (post-Citizens United):
    • Allow unlimited contributions from individuals, unions, and corporations (via 2010’s SpeechNOW case) ([09:24]).
• In Georgia, companies like Coca-Cola and Delta were targeted for boycott due to their direct financial support for politicians behind restrictive voting laws ([12:34]).
  • “They had a role in facilitating the election of these particular politicians... That opens them up to criticism and the threat of boycotts.”
    (Chara Torres-Spelliscy, 11:52)

3. Corporate Hypocrisy and the Limits of “Virtue”

• Companies often donate to both parties equally, aiming to “bet on red and blue at the same time”—which Torres-Spelliscy argues is worse because it allows corporations to claim innocence while enabling problematic politicians ([13:37]).
  • “If we were playing roulette, it's as if corporate spenders are betting on red and black at the same time, but in our political system they're betting on red and blue. And for me, that is worse.”
    (Chara Torres-Spelliscy, 13:38)

4. The Corporate Boycott Conundrum

• Debate over whether corporate boycotts help or harm marginalized communities.
  • Voices like Stacey Abrams argue that boycotts often hurt the poorest citizens, rather than the companies themselves ([21:55]).
  • Torres-Spelliscy highlights that while boycotts are a classic and constitutionally protected form of protest—sometimes they can force corporate action (e.g., Coca-Cola dropping ALEC under threat in the 2000s) ([23:41] and [26:30]).

5. The Distinctiveness of Modern Activism

• Modern activists increasingly pressure corporations directly, rather than solely organizing grassroots boycotts—a shift toward “kneecapping with public opinion” rather than traditional on-the-ground organizing ([28:33]).

6. Citizen United’s Legacy and Dark Money Problems

• Citizens United (2010) fundamentally reshaped the campaign landscape—enabling unlimited, often undisclosed “dark money” political spending by corporations.
  • “This tiny group of people post-Citizens United... wield more power than at any time since Watergate.”
    (Dahlia Lithwick referencing a Brennan Center report, 34:07)
• Large donors have used this post-CU leverage as a “donor strike” (threatening to withhold money if the GOP doesn’t achieve preferred policies, such as the 2017 tax cuts) ([34:17]).

7. Corporations as Political Moderators (Sometimes)

• Corporate America’s consumer base can pressure them to check political extremism—e.g., widespread corporate rejection of Trump after racist remarks and the events at Charlottesville ([41:53]).
  • “We have a customer base that we care about more than we care about you, and we are not going to be associated with this type of rank racism.”
    (Chara Torres-Spelliscy, 42:19)

8. Mitch McConnell’s Sudden Change of Tune

• McConnell's recent statements, urging companies to stop expressing political opinions but ‘keep writing checks,’ directly contradict decades fighting for corporate speech under Citizens United ([46:21]).
  • “He has an enormous amount of chutzpah to claim that corporations should just shut up when he has spent so much of his career making sure they have an outsized voice in our politics.”
    (Chara Torres-Spelliscy, 48:22)
  • McConnell’s flip-flop on disclosure: “Almost as soon as this [Citizens United] opinion comes out, Mitch McConnell gets on the floor of the Senate and starts deriding disclosure of money in politics... He ever since has been a champion of dark money.”
    (Chara Torres-Spelliscy, 51:05)

9. Reforms and Final Recommendations

• Torres-Spelliscy advocates for:
  • Better disclosure laws about political spending,
  • Shareholder voting on corporate political budgets (as practiced in the UK)
  • Passing S1 (For The People Act) to strengthen American democracy ([53:32]).

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Memorable Quotes

• “If we were playing roulette... corporate spenders are betting on red and blue at the same time. And for me, that is worse.”
  — Chara Torres-Spelliscy ([13:38])

• “We've had these various tests of our legal system and our expectations and norms in our democracy and sort of over the past four years, most of those... have been just utter failures.”
  — Chara Torres-Spelliscy ([19:45])

• “You have to get the money from somewhere. And this is one of the reasons why I support public financing. I think there should be a alternative to having our representatives in Congress dial for dollars 30 hours a week.”
  — Chara Torres-Spelliscy ([14:44])

• “He has an enormous amount of chutzpah to claim that corporations should just shut up when he has spent so much of his career making sure that they have an outsized voice in our politics.”
  — Chara Torres-Spelliscy ([48:22])

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Important Timestamps

• 03:53 – Torres-Spelliscy on Georgia’s post-Civil War voter suppression history
• 09:24 – Overview of three main sources of corporate money in politics
• 13:38 – Analogy of corporate donors “betting on red and blue”
• 19:45 – Cynicism towards accountability (post-January 6, emoluments, etc.)
• 23:41 – Discussion of boycott efficacy and constitutional protections
• 41:53 – Corporations as inconsistent but occasionally moral actors
• 48:22 – Analysis of Mitch McConnell’s hypocrisy
• 53:32 – Plea to support the For the People Act (S1)

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Conclusion and Call to Action

The episode concludes with Torres-Spelliscy urging listeners to contact their senators and support S1, the Senate version of the For the People Act, in order to address burgeoning issues around money in politics and protect democracy. The dialogue throughout is candid, occasionally darkly humorous, and marked by a sense of urgency about accountability and reform.

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Listen to the full episode for an in-depth journey through the intersections of law, money, and the modern American struggle over voting rights and corporate influence.

Transcript

[Chara Torres Spellisi]

My warning, if you will, to corporate America is to stay out of politics. I mean, if we were playing roulette, it's as if corporate spenders are betting on red and black at the same time, but in our political system they're betting on red and blue. And for me, that is worse.

[Dahlia Lithwick]

Hi and welcome back to Amicus. This is Slate's podcast about the courts and the law and the Supreme Court and the rule of law. I'm Dahlia Lithwick and I cover these things for Slate. And this week saw a whole lot of action at the Supreme Court blockbuster ruling for Google in a long standing fight with Oracle about whether Google committed copyright infringement when it copied little bits of programming language to build its Android operating system. The court also got a lot of attention when Justice Stephen Breyer delivered a speech at Harvard on Tuesday night suggesting that the justices are not political at all and that probably the courts shouldn't be expanded.

[Chara Torres Spellisi]

Indeed, what I'm trying to do is.

[Dahlia Lithwick]

To make those whose initial instincts may.

[Chara Torres Spellisi]

Favor important structural change or other similar institutional changes such as forms of court backing, think long and hard before they embody those changes in law.

[Dahlia Lithwick]

And the week ended with Joe Biden signing an executive order that will create a a commission to study questions around structural court reform. Later on in the show, Slate plus members are going to have access to my chat with Slate's own Mark Joseph Stern about the slightly worrisome roots of originalism as a constitutional theory and about Clarence Thomas's anti big tech rampage at the Court this week. Something we wanted to button down on this week's show is this curious connection between the court, corporate speech, corporate speech rights, and the Georgia boycotts. We've talked a whole bunch about the big omnibus vote suppression bill passed in Georgia last week, but we wanted to think a little bit more clearly about what connects the boycotts, Citizens United, corporate speech, corporate money, and the Court. And to do that, we have turned to Chara Torres Spellisi, who thinks and writes really brilliantly about money in politics. Chara a Brennan Center Fellow, she's a professor of law at Stetson University College of Law, where she teaches courses in election law, corporate governance, business entities and constitutional law. Before she went over to Stetson, Chara was counsel in the Brennan Center's Democracy program, where she provided guidance on money and politics and the judiciary to state and federal lawmakers. Her most recent book is called Political Brands. It's an exploration of the legal framework for the use of commercial branding and advertising technique presidential political campaigns. It was published in 2019 Chara, welcome to Amicus.

[Chara Torres Spellisi]

Thank you so much for having me.

[Dahlia Lithwick]

I really wanted to have you on for a long time. And somehow the gods offered us Georgia and Boycotts and Mitch McConnell talking about corporate speech this week. And I think if we could just start with Georgia even before we get to Georgia 2021. You just wrote a pretty deep dive historical piece examining the long, long, long history of vote suppression in Georgia. Jim Crow race based vote suppression. It goes way back to the end of the Civil war, before the 15th Amendment was even adopted. Can you just give us the lowlights of what you were unearthing in that historical dive? Sure.

[Chara Torres Spellisi]

So I've been working on a bigger piece for NYU Law Review about Reconstruction, and one of the really strange artifacts I found was this history of what had happened in Georgia right after the Civil War. So what I found is that Georgia, even before the 15th amendment was adopted. So the 15th amendment is what guarantees the right to vote to black men. And even before that, we had elected officials, black elected officials in the state of Georgia. So they are elected in 1868. And almost immediately the white members of the legislature turn against these 33 elected black men and kick them out of the legislature. And one of the ways that they were able to kick them out was they said that they could not vote on their own expulsion. And it took federal intervention to get those elected black officials back in their seats in the legislature. And I think that context is important here because I think it's easy to think, think that the voter advocates today are overreacting or they're being ridiculous or, you know, what does it matter whether it's this many hours you can vote or that many hours you can vote. And I think what a lot of people who know this history will say is we have seen people completely disenfranchised for decades in this very state. And so when we see you creeping up to that line and starting this process. Process, we don't want to relive that again. And I think that is the spirit in which protesters have addressed these changes to Georgia's voting laws.

[Dahlia Lithwick]

So let's talk about how cynical you are about corporations, because I'm trying to ferret it out from what you've been writing. And I feel as though you and I are a little bit living on that same scene of being in some sense happy that someone is drawing attention, you know, to what's going on in this huge omnibus bill in Georgia, but also pretty darn cynical about Coca Cola's motives and Delta's motives here. And so let's start with, and I think you wrote about this just this week. They turned on a dime. Delta and Coca Cola. They initially didn't seem to have much of a problem with these laws. And then you Note, you know, 72 current and former black executive from a whole bunch of corporations condemn Georgia law. And then boom, we're hearing Cola and we're hearing Delta saying, this is appalling. And I think I can't tell if as you write about that you're saying, and that's a good thing, or oh my God, these freaking hypocrites. They're just doing this to perform some kind of corporate conscience. So how cynical are we really?

[Chara Torres Spellisi]

Well, when you think about corporate influence in politics, it's very heterogeneous. Number one, corporations themselves are very different. You have everything from a mom and pop store that is a tiny corporation, everything to a multinational corporation which is omnipresent. And then somehow you can't get them legally anywhere, which is one of the things that I'm keeping an eye on at the Supreme Court right now. So if we're speaking about corporate power, there's this case pending before the Supreme Court, which is called Nestle versus Doe. And in this case, Nestle is arguing that they can't be reached for human rights violations abroad precisely because they are a corporation. And I think they are about to win this argument at the Supreme Court, which is sort of horrifying. So you have that strain of law which is excusing corporations from the responsibility that a normal human being would have if they had conducted themselves in the same way. And then you also have the Citizens United line of the jurisprudence which allows corporations this ability to, to spend an unlimited amount of money. In our politics, there's a difference between federal election law and the election law in each of the 50 states. So at the federal level, we have the Tillman act, which prevents a corporation from directly giving to a federal candidate out of their corporate treasury. And so when you're talking about even corporate spending, it is sort of different whether you're talking about federal elections or state elections. In about half of the states, corporations can give directly to, to candidates for office, like who is going to run for your governorship or who's going to be your attorney general. If your state elects your attorney general. In Georgia, that is one of the states that allows corporations to give directly from the corporate treasury to candidates for state office, including their legislature. So there is this difference in law. So at the federal level, what you get are corporate PACs. So corporate PACs are made up of individuals who are related to the corporation. So typically they are the officers and directors and employees of a particular corporation. And those human individuals give money to the corporate pac, and then the corporate PAC spends in a federal election. And then the third way that corporate money can get into our elections is post Citizens United, there was Another case called SpeechNow, which was actually a circuit court decision. But the circuit court decision in SpeechNow cites to citizens United for all of its reasoning. And under that case, that is what created a super pac. So with a super pac, we have a PAC that is spending in federal elections. And under that ruling, they are allowed to gather in money from unlimited sources, including, you know, from your local billionaire, your local labor union, your local multinational corporation. And then they can spend an unlimited amount of money, so long as they do it independently of candidates and political parties. So those are the three main ways that corporate influence can get into our political system. And corporations are heterogeneous in how they use these avenues. Some use just spending through a super pac. Others will do all three. And I think it's worth noting that the reason that Coca Cola and Delta and other Georgia companies were targeted by voting rights activists wasn't just that they were Georgia companies, which indeed they are. Like, if you've ever flown through Atlanta in the Delta hub, Delta has a huge flight footprint in Georgia. But the reason that they were targeted by voting rights activists was that these particular companies had helped fund the sitting governor of Georgia and had helped fund the very authors of this regressive voting rights legislation, which is now law. So they were focusing on these corporations because these corporations had a role in facilitating the election of these particular politicians. And because you have direct spending from entities like Coca Cola, that then I think opens them up to the criticism and the threat of boycotts when the individuals that they have supported financially in politics then do some horrific things. So whether it's a bathroom bill or a voting rights restriction, that corporation is sort of permanently on the hook for the behavior of the people that they have supported financially.

[Dahlia Lithwick]

Right. And I guess that's the paradox is. And I think you noted this in one of the pieces you wrote this week that Coca Cola gave to Brian Kemp's gubernatorial campaign. They contributed to the state representative, the Republican state representative, Barry Fleming, who authored the legislation. But, you know, Koch gave money to both sides in Georgia, both sides in about equal amounts. So did Delta. And so there's a way that they immunize themselves.

[Chara Torres Spellisi]

Right?

[Dahlia Lithwick]

They're not actually giving money to Brian Camp. They're just. It's a wash. They're giving to both sides. And I think your point is that. No, actually you can give to both sides, but if one side does something truly horrifying, they have to be on the hook for that. So I think the hypocrisy of this. Well, you know, we're not doing anything bad since we give to everyone gets called out, even though that's the game plan, is that it never appears that they've done anything wrong because they're supporting everybody equally.

[Chara Torres Spellisi]

Yeah. I mean, if we were playing roulette, it's as if corporate spenders are betting on red and black at the same time. But in our political system, they're. They're betting on red and blue at the same time. And. And for me, that is worse. I'm sort of not a fan of the role that corporations have in funding our politics. Now, I realize most of our political campaigns are privately financed, which means you have to get the money from somewhere. And this is one of the reasons why I support public financing. I think there should be a alternative to having our representatives in Congress dial for dollars 30 hours a week. That is the recommendation that both the DNC and the RNC tell our freshmen members of Congress that if you want to keep your seat, you have to get on the phone and beg for money 30 hours a week. It's taken on a life of its own. I mean, there was this great dissent in Buckley vs. Vallejo, the original case from the 1970s, where the Supreme Court creates our current campaign finance law. They are reviewing the Federal Election Campaign act, which is a post Watergate reform, and they basically tear that legislation to pieces. And there is this dissent from Justice White and, and he talks about the impact that the Supreme Court is going to have on federal campaigns going forward. And he was talking from a position of experience because he had helped run JFK's election in 1960. And he said, you are putting our candidates on a fundraising treadmill, which I think is sort of the perfect metaphor. It's like it's never ending. You never win the race. It's just continuing. And I think this is particularly true of the members of Congress who are in the House because they're up for a reelection every two years and the average winning expenditure by a candidate is $2 million. And they have to raise this in hard money chunks. So they are perpetually talking to the donor class and literally begging for money so that they can run their next campaign. I have to believe that there is a better way of doing this.

[Dahlia Lithwick]

If you are joining us for the first time, first of all, welcome. And if you like what you hear, be sure to look for us in your podcast app and hit the button to subscribe or to follow. That way you will never miss an episode. And it will also help us ascend the algorithm so more people can find us, too. We'll be right back after these messages. You've also written, and I think it's really worth flagging that even when corporations get to look virtuous, as they are now, I guess, poised to do in Georgia, after a little while, things shake down and revert to normal anyway. And the example you write about is all the companies that were horrified after the capitol riot on January 6th and all the corporations that were like, oh, no, now we can't fund anybody who is deliberately trying to nullify the election and the ways in which the Chamber of Commerce is already saying, okay, come on back, the dust has cleared and they're all going to pony up again. And so even if you have a corporation that is trying to do something that looks as though it's moral and ethical, at some point they need to pay to play and they're back in the game. Right.

[Chara Torres Spellisi]

I think this is an open question and I have to say, as a former Senate staffer, The events of January 6, 2021, really shook me to my core. It made me realize that our democracy was really on a knife's edge that day. And one of the things that I've found dismaying in the ensuing few months here is that people seem to already be forgetting that deadly attack on the U.S. capitol on the day that that the Electoral College votes were to be certified, thus making it official that Biden would be the new president. And I feel like we haven't grappled with that. And so I hope that, number one, we get a 911 style truth commission that looks into this and really examines it so that we don't repeat this mistake. The other thing that I'm very worried about is I think there's just sort of this assumption that the rioters themselves will all face criminal consequences. And I guess my worry is that it's going to be like the Bundys out West. They were very clearly in my mind guilty of occupying a federal office at the very least, and they weren't convicted of that. So I am worried that when we have these rioters and in front of juries that you never know what a jury will do, especially if the excuse is, I thought my president was telling me to do this. So I think the question of what corporations are going to do in terms of dealing with the Republicans who objected in their role as either a House member or a senator, I think that's an open question. And then I think we really don't know how this story is going to end. We don't know if the people who did the rioting will get any legal consequences and how the public will perceive this in the long term. I mean, I think if we go back a couple of years, a lot of us had high hopes for what we thought things like the Mueller report would mean to the public and to accountability and all of that. And it was sort of a huge disappointment because I think the bet was made on the Trump side that people would not read hundreds of pages of a legal document. And I think he was right. It didn't get read. It didn't get digested. It didn't get understood or explained. And so there were very few consequences for things around the 2016 election. So when you say, like, how cynical are you about corporations? Incredibly cynical. I'm sort of at this point cynical about our entire enterprise here because we've had these various tests of our legal system and our expectations and norms in our democracy and sort of over the past four years, most of those, in my estimation, have been just utter failures. Like the idea that you could have a sitting president take unconstitutional emoluments for all four years. And it goes from a case that a court in New York says isn't ripe to at the end of the Trump presidency, the Supreme Court saying that it's moot. That is crazy. There's no accountability anywhere. And it's just so frustrating as someone who spends her days working on political corruption, corrupt politicians, and trying to make our democracy stronger. And I am at least encouraged that HR1 got through the House. But, you know, am I holding my breath for the Senate to do the right thing? Probably not.

[Dahlia Lithwick]

It's so empowering to not be the most desperately angsty person in dialogue. Usually it's me. And I'm so delighted to have you be sort of as broken as I am. I do wonder. And then I will stop asking you triggering questions because I do share. I think your sense of zero accountability means this all just happens again. But I want to ask one more thing about the corporate boycotts in Georgia, which is a really interesting fracture between Stacey Abrams on the one hand, faith leaders and organizers on the other. AOC has weighed in these questions of who corporate boycotts really harm. And I don't know if there's a definitive answer, I know that Stacey Abrams has been really clear. And I remember this, going back to the Georgia boycotts in 2019 about the abortion bill that passed there, that her stance has been pretty consistently, these boycotts hurt the poorest and the most vulnerable, take millions of dollars out of the pockets of the people who need them the most. Coke is not going to suffer, but my constituents are suffering. And I think that's descriptively accurate. Put aside Brian Kemp calling her a hypocrite. I actually think she's been very consistent on this. But it does raise this question for me again, of are corporate boycotts, if Stacey Abrams is right, are they actually even more empty performance because they actually do harm?

[Chara Torres Spellisi]

So I guess the thing that I would say about boycotts is that they are as American as apple pie. You might think of the way the nation started with Bostonians boycotting British tea. Now they took it a step further by actually destroying property, which I do not support. But in general, I think the power to boycott is a very important one. And the Supreme Court itself has protected political boycotts under the First Amendment. So the same part of the Constitution that empowers the Court to give more of a voice to corporations and Citizens United in Claiborne Hardware, the Court does the same thing for political boycotters, which I think is important to realize, because boycotters, for whatever reason, they really get under the skin of otherwise reasonable people. And I think it's partly that it goes to the power of the purse and the power that consumers have over our society, as a general matter. And you see this with Coca Cola over the years. So, for example, in the early 2000s, Coca Cola was part of a group called ALEC, the American Legislative Exchange Council. And ALEC was one of the sources of really strict voter ID laws. So what ALEC would do is it would hold these lavish conferences, and lawmakers from around the country from state legislatures would come to the ALEC conference. And the members of ALEC are also corporate members. So you would have meetings where representatives from Koch Industries and Coca Cola and other huge American companies would sit in a room with state lawmakers, and then they would have sort of a menu of legislation that the group was pushing. And one of the things that they were pushing was restrictive voter id. And Coca Cola got in trouble with this when it was revealed that Coca Cola was in this group and that the group was the source of these regressive voter ID laws. And so activists like Color of Change threatened to boycott Coca Cola if they continued their relationship with alec. And you didn't have to ask them twice. They almost as soon as the threat of the boycott went into effect, Coca Cola is like, oh, we're out of Alec, sorry. No, no, no, do not boycott us. And I think that sort of speaks to the different structures of corporations. So Coca Cola is very sensitive to boycotts because they are literally public facing like they produce these beverages and then individual consumers buy those beverages. Different corporate structures are not as exposed to public customers in the same way. So if your business model is, you know, we do back end it for other corporations, you're much less subject to, to a consumer boycott because the consumers probably has no idea that you really exist or what your product is or how you would boycott it. You'd have to be another business in order to boycott, you know, a business to business type offering. But anyways, Coca Cola is extremely exposed to the whims of the public because they're literally selling their product directly to each of us as consumers. And, and in that way, I think that the pressure that boycotts or even the threat of boycotts can bring to bear can be enormously important because our corporations have been given so much power in our politics. So I think what activists have been doing is they've been realizing, you know, my letters to my congressman or my letters to my senator or letters to the president are getting zero results. Let me try another pressure point. And one of the pressure points that they've been trying is, okay, well let's see who funds this politician. Let me talk to that person and see whether putting pressure on the funders has an impact on the behavior of the elected official.

[Dahlia Lithwick]

So actually that answers my next question question, which is in some sense, you know, you've talked about the storied history of the civil rights boycotts and Dr. King, this is really different from organizing people to do boycotts. This is organizers pressuring corporations to change their conduct. So in a sense that's also kind of a marker of our age. Right? I mean, this isn't, you know, butts in the street. This isn't skin in the game necessarily. I'm in no way saying that isn't happening on the ground in Georgia. But I am saying this is a really effective, efficient. What color of change does is really efficient, which is just say we're gonna kneecap you with public opinion until you as a corporation stop doing dumb stuff. And that is new, right?

[Chara Torres Spellisi]

It's an interesting way of putting it. So for example, the boycott that was at issue in Claiborne Hardware was a boycott by black members of Very tiny towns in Mississippi. And the demands of the boycotters were essentially twofold. One was they wanted more respect from the local police. So you can find their list of demands. And some of it is that they wanted to be called sir or ma' am instead of boy or girl by the local police. And then another demand was that local merchants should hire black clerks. And they boycott basically all of the businesses in the town because they thought of the businesses in the town as causing essentially both problems that they couldn't get jobs. And when they were harassed by police, it was completely demeaning. And this boycott went on for years to the point where at least some of the businesses claimed that they literally went out of business because half of their patronage disappeared and disappeared for a really long time. And so what the individuals in this little Mississippi enclave did is they sent one of their own to the state legislature. So that person then convinces other members of the Mississippi legislature to change the law and to essentially make this type of boycott illegal. They basically call it a restraint of trade. And that law is retroactively applied to the boycotters, and not just to the boycotters. It was applied to the naacp, who had had a role in organizing the black people in down in the first place. And so when a judgment comes down from the Mississippi Supreme Court enforcing this law against them, the judgment is a joint and several. As in everyone, all of the defendants are on the hook. So all of these poor black people from Mississippi and the naacp. And the judgment was so large that there was a risk that the NAACP was about to go bankrupt because of this loss in Mississippi on the. This restraint of trade boycott theory. But when it gets to the supreme Court, the Supreme Court, I think, does the right thing and says we have to put a line in the sand between violence, which is not ever acceptable, and peaceful boycotts, which have a political purpose, which are protected by the first Amendment. But if you think about the original request, it was both to the government and to local business owners. And the request was sort of, I think, very similar, like, treat us with respect. That was sort of the basic request that started this whole consternation and conflict between individuals in this one small town in Mississippi.

[Dahlia Lithwick]

And now let's return to our conversation with Professor Chara Torres, Spellisi Brennan center fellow and professor of Stetson University College of Law. We're talking about money and speech and politics, and whether Republicans have really come to the conclusion that maybe those three don't mix as well as they thought. I feel like we are going to have to talk about Citizens United. I'm worried that it's going to make you even sadder than you already are. But I do think, inexorably, we are pulled to talk a little bit about sort of how we got here. And you've talked a lot, I think, about the climate of dialing for dollars and the ways in which, you know, if you, a congressman, you are beholden to these people who you spend your entire day servicing and pacifying and asking for money. I was just looking at a Brennan center report by Daniel Weiner saying that essentially now there's this tiny group of people post Citizens United that wield more power than at any time since Watergate. And this is the problem of Citizens United States. It's, you know, historic wealth inequality, that there's just a handful of huge, huge donors and nobody else, and that's who the government works for. I mean, the idea that this is the source of our freedom is like stuff out the nose. Funny to me. How did we get to the place where corporate free speech about voting is where our hopes reside?

[Chara Torres Spellisi]

So corporations have a number of ways that they can influence policy. One is spending in elections so that they get their candidate of choice elected. And that person may be more ideologically aligned with some of the goals of that corporation. So one of the goals that might cut across a lot of different corporate structures is the desire for what they would call tax efficiency. I think the rest of us would either call that tax avoidance or tax evasion. But that desire to have fewer taxes owed to the US Government, I think animates a lot of different corporations. And so one of the things that you saw in the lead up to the 2017 Trump tax cut was a literal donor strike by big Republican donors. And what the big Republican donors said and said in the press so that no one could miss it, was that if they didn't get their tax cut, they were going to close their their pocketbooks and not give to the Republican Party or to Republican candidates ever again. Because what was the point of spending all this money to get these people elected if they couldn't follow through and provide the tax cut that they were demanding? And lo and behold, you get the tax cut that they were demanding, and the corporate tax rate drops dramatically by 40% in that legislation, which becomes law. So I think that is sort of more typically what we see with corporate spending in politics. It's to elect people who will be responsive in that way. The other thing that you see with corporations is this betting on both blue and red at the same time. So no matter who is elected, they will be beholden to a corporate donor. And then finally, there's much more money that is spent on lobbying than is ever spent during elections. And you could think about why that is. Part of it is that elections are for a finite amount of time. I know it feels like it's perpetual, but it actually is for a finite amount of time. The lobbying actually can be infinite. So whenever Congress is in session, lobbyists are in the halls pushing their clients agenda in front of our lawmakers and trying to get the lawmaker to adopt the client's position, which is often a corporate position. And so corporations have an enormous ability to shape what's on the agenda of Congress by simply hiring a small army of usually lawyers to chat up up every single member of Congress to make it clear exactly what would please that corporate client. And lo and behold, you see it manifested in legislation that becomes law. I think one of the clear examples of that is the bankruptcy code, which is now just horrendous for people who are in debt and really good for credit card companies. Like it's not by accident that that happens now with these social issues. I think that is much more complicated. I think the more that the customer base of normal consumer products is enormously diverse and you know, mostly going to be located in urban and suburban places in America, those individuals are going to have a certain worldview that is maybe not aligned with where the Republican Party seems to be right now. Now it's hard to know exactly what the long term impact of having Donald Trump as president will be over the long term. I'm hoping that that is more of a blip and not a foreshadowing of where we're going in terms of, of politics and Republican politics. But I think there is a difference between the electorate that put Joe Biden in the office and the individuals who voted the other way. I feel like the chasm between those two choices was so epic. And that is not, I think, terribly typical of our last decades of elections. I mean, I think there's a reason why in 2000, Bush and Gore tied in Florida, the swing state. Like there was not a huge difference. And if you go back and you look at the debates that the two of them had, they kept on saying like, I agree with him, I agree with him with him. And it was not, I think, such a life altering, democracy altering question of like which of these two sort of middle of the road ish characters would become the next president. And, and I, so I, I'm very worried about where American politics goes next. And strangely, one of the mediating factors may well be where corporate America's head is, because I think a lot of corporate America has to think about a far more diverse customer base than the Republican has to think of in terms of a diverse electorate.

[Dahlia Lithwick]

See, that's so interesting because it maps onto, you know, a lot of the reporting that was done in Time magazine, I think in the New York Times that talked about the group of kind of good government groups, union groups and corporate groups that were organizing kind of in the shadows in the 2020 elections and all the ways in which behind the scenes corporate America was not going to allow the country to crater into chaos. And again, you have this sense that corporate America, whatever we may think, had its finger on the pulse of do we want nihilism? Do we want 1-6-Riots? Like that, that is bad for business fundamentally and that that is powering some of this. It makes me think of the Jane Mayer piece in the New Yorker where she just had audio of Republican leadership saying, we can't. People really freaking like HR1, like they want to expand the franchise and they like to have good government and open and transparency. And the idea I think that you're floating, that's really interesting is that corporations are savvier about that than politicians are in some sense that they might be a harbinger of just sense of when nihilism becomes too much to tolerate. I don't know if that's, if I'm overstating what you're saying, but that there's some hope there.

[Chara Torres Spellisi]

I mean, one of the things that I tried to deal with in my second book, Political Brands, was the rejection of Trump by his former business partners. So when Trump announces that he's going to run for president, he has this very odd rollout where, you know, he comes down the escalator in Trump Tower and then the next like words out of his mouth are Mexicans are rapists. And the reaction from his former business associates was, no, no, no, this man does not speak for us. I think most interestingly, Macy's, which had had a long business partnership with Donald Trump selling his China made ties to the public. Macy's heard that one speech, his announcement that he was running for president and said, no, it doesn't matter if we've had a relationship for a decade or more that we've made selling your Trump branded products. No more. That is it. And that happened with all sorts of different former business partners with Trump that they saw his racism in that opening speech and said, no, thank you. We have a customer base that we care about more than we care about you, and we are not going to be associated with this type of rank racism. And you saw it again after Charlotte. So after Charlottesville, Trump sort of famously says there were good people on both sides, even though one of the sides included neo Nazis and someone who rammed a car into a woman and killed her. And after Charlottesville, you had these presidential committees that, you know, were ostensibly for advancing the business interests of. Of business in General and the CEOs who were sitting on its businesses so that they, you know, they were related to the White House. Both of his business councils quit, like all of them after Charlottesville. And the way that I read that is that each of those CEOs, including, like, the CEO of Campbell's, they had a brand to protect. They had a image to protect in the mind of the public, public. And Trump saying that there were good people on both sides in Charlottesville was just a bridge too far for them. And so while they were willing to, you know, they were on the council so that they couldn't have been too upset with him in terms of what he had said before that. But when he seemingly endorsed or embraced or made excuses for all of that neo Nazi nonsense, including the violence, that was too much for lots of corporations. And so rather than being on a White House business council, they all quit. And I think that showed some moral fortitude on the part of the individuals who did that. And it also, I think, just puts down a marker for what is acceptable and what is not acceptable behavior. So as we were sort of talking about earlier, a lot of our norms came under a lot of crushing stress over the past four years. And I think one of the weird points of light in all of this was there were these instances like that where corporate leaders at least said, no, like, I am not going to be a party to this. And I think that's actually important for. Because to the extent that you didn't hear that from, you know, members of the House, you didn't hear that from members of the Senate, you didn't hear that from Cabinet members. Trump Cabinet members seem to stay there. Like the entire. Like a lot of them, they stayed there for the entire four years. Like, you know, DeVos and Carson and Chow, they were there and said nothing about some of the abhorrent behavior we witnessed. But certain CEOs, actually, I think, to their credit, did say something when it counted.

[Dahlia Lithwick]

It does make me want to re up my sense that I tossed at you early on in the game that six months later we can't remember which corporations they were. And they can't remember, you know, like there is a way in which so much of this feels really fleeting. I don't want to let you go without Talking about Mitch McConnell, speaking of Elaine Chao, because this was some next level stuff, right? This week we had in the midst of these, you know, Major League Baseball and Coke and Delta, we had Mitch McConnell in a written statement on Monday deeming all of this bullying. And he says it's jaw dropping to see powerful American institutions not just permit themselves to be bullied, but jo the bullying themselves. Our private sector must stop taking cues from the outrage industrial complex. He talks about American corporations behaving like a quote woke parallel government and he threatens retributions unless corporations just shut up and start donating dark money again. I will not continue to read Mitch McConnell at you. I wonder if you want to just talk briefly, if you want, about how much this feels like it upends. Just the fundamental bargain of Citizens United where under the guise of protecting corporate speech, we opened the geyser and let dark money pour out. Now it feels as though he's saying, hey, I didn't mean it with a part about corporate speech. Y' all shouldn't be talking, just write the checks. The cynicism of Mitch McConnell is a little bit exploding my br. So I wanted to give you the last word because it seems as though the thing he had been fighting really hard for, which is the dignity of corporations as quasi human entities that need to speak, seems to have taken a pie to the face this week.

[Chara Torres Spellisi]

So as a former Senate staffer, I have to say I have enormous respect for Senator McConnell. He has enormous stick to itiveness. He's a master of knowing Senate procedure and how to use it and bend it to his will to get his way. All of those compliments aside, he has an enormous amount of chutzpah to claim that corporations should just shut up when he has spent so much of his career making sure that they have an outsized voice in our politics. So when McCain Feingold was going through the Senate, he claimed that disclosure alone would be enough. We don't have to have these limits on corporate speech. And then he lent his name to a lawsuit challenging McCain Feingold that went all the way to the Supreme Court. I think much to his dismay, the McConnell case actually stands for the proposition that limits on corporate political speech at that time were perfectly constitutional. Then after that, we get the Citizens United challenged to the very same law. And even though The Court had ruled in 2003 that in the McConnell case, limiting corporate expenditures in politics was a good way to prevent corruption and the appearance of corruption. When you get to Citizens United, the same laws is being challenged. And the Supreme Court, after its first oral argument in Citizens United, they order a second oral argument. And then the Supreme Court itself changes the question in the case, and they change it to should we overrule the part of McConnell that had limited corporate free speech? And the rest is history. The Supreme Court in Citizens United rules that corporations do have a First Amendment right to spend an unlimited amount of money in our elections. And almost as soon as this opinion comes out, Mitch McConnell gets on the floor of the Senate and starts deriding disclosure of money in politics. And it didn't matter that this was a complete flip flop up. He ever since has been a champion of dark money. And by dark money, I mean money that is spent in politics by the millions. But no amount of due diligence on the part of a voter or an academic like me will ever get to the bottom of where this money comes from. And a lot of this money, I presume, is actually corporate money. And the reason that I make that assumption is, is the biggest corporate political spender is the U.S. chamber of Commerce, which is a dark money conduit. And the members of the Chamber of Commerce are a bunch of corporations, but we don't know which ones are funding the negative political ads that we see each political season. But McConnell has been a beneficiary of all of that corporate spending, and his super PAC has, has millions and millions of dollars from corporations in general and publicly traded corporations in particular. This is one of the reasons why I think that we need new rules at the federal level. We need better disclosure of money in politics. And I would go one step further and say that shareholders should have a vote on corporate political spending. This is how our cousins over in the UK do it. They allow shareholders vote on corporate political budgets, and that limits how much corporations can spend in the uk And I think a similar restraint would be useful in the United States. I think unfettered corporate political spending doesn't get us the results in the democratic process that we want.

[Dahlia Lithwick]

Chara Taurus Bellisi. She is a professor of law at Stetson University College of Law, where she teaches election law, corporate governance, business entities, and constitutional law. She's also a Brennan Fellow at the Brennan center, and her book, Political Brands was published in 2019. I want to have a really long conversation about disclosure. It's gonna have to wait. But I do think that that little window you opened at the very end where disclosure was supposed to be the solution for Justice Kennedy and Citizens United, and now we're all opposed to disclosure. I think that's the thing that we really need to be mindful of as we think about money in politics, is where it's coming from.

[Chara Torres Spellisi]

Can I add one last thing?

[Dahlia Lithwick]

Please, please, please.

[Chara Torres Spellisi]

I would encourage all of your listeners to, if you care about money in politics or you care about our democracy, to call your two senators and encourage them to vote in favor of S1.

[Dahlia Lithwick]

And that's the Senate version of HR1, the For the People Act. Chara, it's been so great having you. You have unmatched ability to laugh and be super sad at the same time. It's a gift. Thank you for joining.

[Chara Torres Spellisi]

Of course.

[Dahlia Lithwick]

And that is a wrap for this episode of Amicus. Thank you so much for listening and thank you so much for your letters and your questions. You can keep in touch at [e-mail] or you can find [e-mail] Amicus Podcast. Today's show was produced by Sarah Burningham. We had research help from Daniel Maloof. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. June Thomas is senior managing producer of Slate Podcast. And we will be back with another episode of Amicus in two short weeks.