On Monday, Senate minority leader Mitch McConnell posed a very strange threat to American corporation for a senior legislature in a nation ruled by the First Amendment.
McConnell warned companies to stay out of politics, saying that companies will have dire consequences if they become a vehicle for far-left mobs. (McConnell, a longtime opponent of campaign finance laws, later made it clear that he "does not talk about political contributions" when telling companies to stay out of politics.)
McConnell didn't elaborate on how exactly he plans to cancel companies that express left-wing political views, but many of his Republican fellow lawmakers have. After Major League Baseball announced that it would move its All-Star game out of Atlanta in 2021 because the state of Georgia passed a law restricting electoral access, several Republican lawmakers threatened retaliation against the league by granting it an exemption Revoked federal antitrust laws.
Why does @MLB still have antitrust immunity? It is time for the federal government to stop granting certain privileged companies special privileges – especially those that punish their political opponents. https://t.co/k3GIZuGYHB
– Mike Lee (@SenMikeLee) April 2, 2021
After Delta Air Lines spoke out against the same anti-voting law, the GOP-controlled Georgia house voted to remove a jet fuel sales tax exemption that primarily benefits Delta. (The law was not passed by the Senate).
It is not difficult to understand the politics of these threats. Both MLB and Delta enjoy special exemptions from the law that many other companies or individual Americans do not. Hence, it is not difficult for these legislators to get angry with them for receiving such privileged treatment.
However, the use of the power to legislate to punish critics of a particular policy, especially when that policy itself aims to restrict voting, is contrary to democratic values. And so the Constitution forbids this kind of behavior by the legislature. It is unconstitutional for the government to take revenge against someone who expresses a political view that government officials do not share.
The Constitution allows Congress to impose antitrust regulation on a baseball league (although there are indeed good political reasons why sports leagues should enjoy some immunity from normal antitrust laws). And the constitution also allows Georgia to tax airlines.
But as the Supreme Court in Perry v. Sindermann (1972) stated, “There are some, although a person is not 'entitled' to a valuable government benefit, and although the government may deny him the benefit for a number of reasons, which the government may not rely on can leave. "Among other things, the government must" not deny a person any advantage that goes against their constitutionally protected interests – in particular their interest in freedom of expression. "
It seems completely unconstitutional to deprive a company of a "valuable government advantage" just because the legislature wants to silence that company.
The government cannot require someone to give up their right to freedom of expression in order to receive a benefit
The constitutional rule of depriving someone of a government advantage in order to control their language goes back many decades.
California law granted volunteer WWII veterans an exemption from property tax. In 1954, however, the form in which veterans apply for this exemption was revised to require those veterans to take an oath of allegiance: "I do not endorse, nor endorse, the violent or violent overthrow of the United States or California government or any other illegal means a foreign government against the United States in the event of hostility. "
After some veterans refused to take this oath, their refusal in the Supreme Court ended and the court ruled in Speiser v. Randall (1958) that these taxpayers “could not be required to execute the declaration as a condition for obtaining a tax exemption or as a condition for the auditor to further determine whether to qualify for such an exemption. "
Speiser was a fairly early formulation of the so-called "Unconstitutional Doctrine". Both Congress and states offer individual citizens many benefits that the Constitution does not prescribe. California is not required to give tax breaks to veterans. However, once a service is offered, the government cannot withdraw that service from someone as they are exercising their initial adjustment rights.
This notion that government benefits may not depend on enforced silence or speech persists, even as the Supreme Court has become more conservative. In the US Agency for International Development v. Alliance for Open Society International, Inc. (2013), for example, the court struck down a demand that organizations that receive certain federal grants to combat the global HIV epidemic must “expressly pursue a policy against prostitution and sex trafficking. "
The Open Society International case drew a somewhat subtle line. As Chief Justice John Roberts stated in his majority opinion, "Without violating the Constitution, Congress can selectively fund certain programs to address a problem of public interest without funding alternative ways to address the same problem." As a result, Congress was allowed to prohibit groups receiving federal HIV grants from using those funds to “promote or advocate the legalization or practice of prostitution or sex trafficking”.
However, Congress could not silence the recipients of grants with views on sexual labor unless those recipients used government money to advance that view. The requirement that such scholarship holders actively speak out against sex work forces, according to Roberts, "as a condition for federal funding, the confirmation of the conviction that this naturally cannot be restricted within the framework of the government program". Because of this, it "violates the first change and cannot be sustained."
Similar logic could be applied to a hypothetical bill exempting MLB from its antitrust exemption or Delta from its tax breaks – assuming those benefits were stripped because the government wanted to penalize these companies for exercising their initial adjustment rights. Again, the government is under no obligation to provide such benefits to these companies, but it cannot make these benefits conditional on a company's silence.
That Supreme Court could make it very difficult for Delta or MLB to prove their case
After explaining why punishing a company for expressing a political opinion is contrary to the First Amendment, it should be noted that this Supreme Court – with six of its nine seats occupied by Republican candidates – is one of the companies it targets The GOP could impose a very high burden of proof.
Speiser and Open Society International were fairly straightforward cases, as the government specifically indicated that it was making a federal benefit dependent on certain behaviors of the beneficiaries. In Speiser, it was made clear on a government form that veterans must take an oath of allegiance in order to receive a tax break. In an act of Congress in Open Society International it was explicitly stated that only groups who oppose sex work can receive certain grants.
The fact that Republican lawmakers like Senator Mike Lee (R-UT) and Rep. Jeff Duncan (R-SC) have openly bragged about their plans to exempt MLB from its antitrust exemption in order to punish them for exercising their initial adjustment rights is strong evidence that if Congress were to pass such a law, it was doing so on unconstitutional grounds.
But the court has turned a blind eye to even more powerful evidence in the past.
In the Trump v. Hawaii (2018) case, the Court upheld a policy of the Trump administration prohibiting nationals of several Muslim-majority nations from traveling to the United States. It did so despite the fact that Trump and his inner circle repeatedly boasted of his plans to crack down on Muslims in violation of the constitution's prohibition on "prohibiting the free exercise of religion".
For example, as a presidential candidate, Trump called for a "complete shutdown of Muslims entering the United States until representatives of our country can find out what is going on." After being attacked for promoting unconstitutional policies, Trump even bragged about how he would try to obscure the real purpose of that policy.
"People were so upset when I used the word Muslim," Trump told NBC's Meet the Press in 2016, "and I agree with that because I speak territory instead of Muslim."
By "speaking territory" Trump meant that he was hiding the real purpose of his travel ban by banning people from certain nations instead of explicitly banning Muslims. As Trump attorney Rudy Giuliani admitted in 2017:
When (Trump) first announced it, he said, "Muslim ban." He called me and said, "Put a commission together, show me the right way to do this legally." . . . And we focused on the danger instead of religion. The areas of the world that pose a threat to us. Which is a factual basis. No religious basis.
Still, the Supreme Court rejected this evidence of unconstitutional intent and upheld the travel ban challenged in the Hawaii case.
Roberts' majority opinion in Hawaii, however, centered on the extraordinary level of deference that elected officials normally show to elected officials in national security cases. The boss warned that "any constitutional rule that would affect the president's flexibility" "Extreme caution should be exercised in responding to changing global conditions. "Our investigation into immigration and national security issues is severely limited."
There is little, if any, national security impact in a case over antitrust and baseball – or over state-level tax breaks for airlines. As a result, the court may be more open to evidence of malicious intent in a GOP corporate retaliation case than in the Hawaii case.
Republicans are playing with fire by leveling threats against companies that disagree with their anti-democracy stance.
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