This post expands the scope of the debate and  responds to an outside post by Frank Askin, a Professor of Law and Director of the Constitutional Litigation Clinic at Rutgers Law School, at NJ Voices.

Askin’s piece addresses three alleged shortcomings in the free speech side of Citizens United v. FEC, specifically as defended by noted First Amendment litigator Floyd Abrams on the Bill Moyers Journal Friday.

Askin’s issues are (1) the longstanding ban on corporate political donations, (2) the distinction between member-based union speech and shareholder corporate speech, and (3) the constitutional distinction of “We the People” not bestowing First Amendment rights on corporations.

Center for Competitive Politics Chairman Brad Smith addressed these specific issues at length at a Cato Institute policy debate today with American University law professor and Maryland state Sen. Jamin Raskin. The video is available here and is embedded at the end of this post.

First, as the Center for Competitive Politics has noted several times, the Tillman Act of 1907 is not at issue in this case. The Act banned direct contributions by corporations to candidates, whereas Citizens United is about corporate — and by extension, union — independent expenditures. By definition, candidates have no control over such speech. We’ve also addressed the muddled history of the Tillman Act, which was motivated in part by racist sentiments, and addressed a corporate environment much different than exists today:

The Tillman Act’s sponsor was Sen. “Pitchfork” Benjamin Tillman (D-SC), a notorious racist and proponent of Jim Crow laws. He pushed the corporate contribution ban as a way to kneecap corporations opposed to his agenda because they did not want the added expense of providing separate accommodations for different races or restrictions on hiring black workers.

Second, as Brad Smith has previously blogged about, the argument that corporate independent expenditures are fundamentally different than member-based union expenditures and violate shareholders’ rights doesn’t make sense for at least two reasons: (1) Corporations already spend money on charitable contributions that can have political overtones and direct lobbying that shareholders may disagree with. This is a matter for corporate governance legislation, perhaps requiring management to inform shareholders of political spending, not a matter of broad campaign finance law. (2) This distinction is overkill — incredibly broad. It doesn’t allow ideological corporations that people join precisely to further their political views to speak and also silences closely held corporations in which there are no dissenting shareholders.

Third, Askin suggests that the First Amendment does not apply to corporations, that the Framers somehow decided to leave out a class of people from the “We the People” preamble of the U.S. Constitution. He makes the case, a common refrain of “reformers” that corporations are artificial entities that can amass great wealth. There are several problems with this line of argument: (1) Corporations are associations of people — shareholders, employees, etc.; by affirmingtheir First Amendment right to associate, they do not give up their First Amendment right to free speech.

“Reformers” presumably acknowledge the First Amendment rights of non-profit corporations not covered under Austin, so-called MFCL organizations that are allowed to use their general treasuries for independent expenditures, and media corporations like the New York Times Co. It may have been defensible in the 1970s to only allow a media exemption for the establishment press, but in this modern era of You Tube, the line between established and new media is blurring. Why should an organization like Citizens United (or Michael Moore) seeking to produce a political documentary enjoy less of a First Amendment right than FOX News or MSNBC producing a similarly scathing documentary about Barack Obama or Sarah Palin, respectively? Simply because the state recognizes a legal aspect of a corporation does not mean its members are simply an artificial being notentitled to First Amendment rights.

The First Amendment protects the “freedom of speech,” not just the speech of U.S. Citizens. Foreign citizens, media organizations, minors, non-profits and other people and organization who aren’t citizens are allowed First Amendment rights (not necessarily donating to candidates, which is covered under a different legal rationale).

Ultimately, it is Frank Askin who is defending the indefensible — the right of the government to censor and restrict political speech.