Serve Free Speech With That Bernie Sanders Ice Cream
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Serve Free Speech With That Bernie Sanders Ice Cream

The co-founder of Vermont ice cream company Ben and Jerry’s has made Bernie Sanders-themed ice cream, despite decrying ‘corporate influence in politics.’

There has been a lot of talk of campaign finance law this month. Sen. Bernie Sanders has often featured it in his speeches, using the issue to build support among young leftists while drawing a contrast between his own anti-corporate campaign and that of Goldman Sachs’s favorite Democrat, Hillary Clinton.

The sixth anniversary a few days ago of the Supreme Court’s ruling in Citizens United v. FEC has drawn the issue into even tighter focus as Democrats used the occasion to call for that ruling’s repeal. Specifically, they have called for repealing Citizens United by repealing the First Amendment.

If you have not followed the discussion, Citizens United was a 2010 court decision that, on the Left, has been characterized as granting greater powers to corporations that, through shadowy means, have somehow taken control of our very democracy.

A more accurate way of describing it would be to say that the Supreme Court told the Federal Election Commission (FEC) they could not censor a film about a candidate, even if it was released around the time of an election. The court reminded the executive branch that the freedoms guaranteed under First Amendment include the freedom to speak about and publish political ideas, no matter the season, which sent Sanders and the netroots crowd into a spiral of range that is still spinning six years later.

Yum: Bernie Sanders-Flavored Ice Cream!

It comes as something of a shock, then, that today we see the long-rumored release of “Bernie’s Yearning,” a special-edition ice cream produced by Ben Cohen, the co-founder of Vermont ice cream company Ben and Jerry’s. Cohen goes out of his way to proclaim that he made the new flavor as an individual, not as an employee of Ben and Jerry’s or its Anglo-Dutch corporate parent, Unilever N.V. The company’s official Twitter account did the same.

icecream

Unilever’s lawyers clearly know a thing or two about campaign finance law. If the corporation had participated in producing this ice cream, the FEC would very likely have seen it as an in-kind contribution. Since corporate contributions to political campaigns are illegal (and have been since 1907!) this would have landed the conglomerate in hot water.

Despite their denials, we are clearly meant to believe that this is a pint of Ben and Jerry’s ice cream. The container, as you can see, bears a strong resemblance to those produced by the Unilever subsidiary. The size, shape, and typeface are all the same. Even the slogan “Vermont’s Finest Senator” mimics the slogan “Vermont’s Finest” that adorns every pint of Ben and Jerry’s.

If a competitor, like General Mills’s Häagen-Dazs, had produced ice cream that looked half so similar, it would have certainly resulted in a lawsuit. By not working to stop it, Unilever is acquiescing to its own trademark’s dilution, an unusual position for a publicly traded company that is, we are told, not at all affiliated with “Ben’s Best” ice cream.

Do as We Say, Not as We Do

Ben and Jerry’s as a corporation has spoken against the Citizens United ruling in strident terms. In an unsigned posting last week on the corporate website entitled “6 Years of Citizens United’s Bull$%&t” (sic), the company inveighed against the decision that it said “gave rise to super PACs and secret unlimited and unregulated political donations that undermine our democracy.”

This is richer than a pint of Chubby Hubby. Here, in the midst of an election season, we have a corporation speaking on a political issue. Their position: that corporations should not be able to speak on political issues in an election season.

They go on to mock the rules that political action committees follow to avoid running afoul of campaign finance laws (yes, Citizens United did not repeal all the campaign finance laws, despite what you may have heard):

Super PACs, following the letter of the Supremes’ new law, are not allowed to coordinate their efforts with the candidates they support. But what’s funny, or horribly damaging and tragic, depending on your point of view, is that many super PACs are run by members of the candidates’ inner circles. This billion-dollar game of nudge-nudge, wink-wink may be fun to play in certain corners of Washington, D.C., but for the rest of us, it basically obliterates the only remaining wall separating donors and candidates.

The “game of nudge-nudge, wink-wink” sounds a lot like the game played by Ben and Jerry’s and Ben’s Best, a venture begun by a Ben and Jerry’s founder and held apart from the corporation for one purpose: supporting a candidate’s campaign while following the letter of the campaign finance laws.

Ben Cohen supports Bernie Sanders, and the First Amendment protects his right to do so. It would be nice if he recognized that the same right extends to other people.

Kyle Sammin is a lawyer and writer from Pennsylvania. Read some of his other writing at kylesammin.com, or follow him on Twitter @KyleSammin.
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