A couple of days ago I engaged in a public debate on Facebook with an individual who I don’t really know. The subject was the Supreme Court’s January 21, 2010 decision overturning limits on corporate campaign financing. As expected, most progressives railed against the ruling. But those within the conservative spectrum — from Libertarians to Capital Fundamentalists — seemed fine with the broad “corporate personhood” endorsed in the majority opinion. You see, corporate power and influence isn’t inherently evil, as long as it’s part of a vibrant debate within an open marketplace of ideas. A marketplace ruled by a handful of corporations!
The following is based on my arguments with a Libertarian foil. (Such is my cross to bear.) Before we get started, a caveat: I am neither an attorney nor a Constitutional scholar. I do live in a town chock full of lawyers, however, and, while I’ve met some brilliant legal minds, I’ve come to realize that being barred doesn’t necessarily make you a genius. I feel conversant enough in the peculiar language of the law to offer a layman’s take on the Supreme Court decision; if there are any experts reading this who feel that my analysis is lacking, feel free to correct me in the comments.
Corporations and the Bill of Rights
Back in 1886, the U.S. Supreme Court refused to hear arguments about whether corporations could be considered “persons,” but simply stated that they should be treated that way within the framework of the Fourteenth Amendment (originally meant to ensure the due process rights of freed slaves and their descendants).
It wasn’t until the 1970s that the Supreme Court began extending First Amendment speech rights to corporations. In 1978, the Court held that corporations in Massachusetts had the right to make campaign contributions to defeat a political referendum for a progressive income tax. From there, it was a short hop to the massive corporate spending on campaigns wherever corporate power would potentially be mitigated. These “rights” have been upheld in rulings ranging from employee compensation to campaign finance to toxins in household products.
Corporate expression was subsequently extended to include “negative speech,” meaning that what corporations didn’t choose to say was also protected. Here’s an example some readers might recall: in 1996, a U.S. appellate court struck down a Vermont law requiring labels on milk containing bovine growth hormone. The appellate court ruled that this program would infringe on corporations’ negative speech rights, and held it to be unconstitutional based on a previous Supreme Court decision stating that, “for corporations as well as for individuals, the choice to speak includes within it the choice of what not to say.”
So we’ve established that there are First Amendment protections for corporations, based on precedent. So why was the Supreme Court’s ruling on campaign financing so effed up?
Overbroad and Constitutionally flawed
Constitutional scholarship (which seems to escape the penetrating intellects of Clarence Thomas and the supposed Construcitionist Antonin Scalia) suggests that this was a truly sloppy decision. And this is even before we get to the negative effects it will likely have on society.
Despite the right’s intolerance of “legislating from the bench,” this ruling was the pinnacle of judicial activism. Why? Because no lower court had even considered an argument for striking down longstanding laws limiting corporate financing. The purpose of any bench is to rule as narrowly as possible. And the case in question, Citizens United v. Federal Election Commission, did not require a broad ruling on the supposed Constitutional “rights” of corporations. Therefore, this decision can be viewed as an EPIC JUDICIAL FAIL.
The red herring of Speech
Now, let’s get back to the fallacy of the majority opinion, which would surely have Thomas Jefferson spinning in his pine box.
This ruling, despite it being argued on First Amendment grounds, has nothing to do with speech.
Under previous federal election law, corporations and labor unions had full rights to say whatever they wanted to about political candidates at any time. What they couldn’t do was apply unlimited general treasury funds in the process. Meaning, they had to use cash raised by their PACs and from employees and members. This in no way constitutes a ban on speech.
Do corporations have feelings?
The Supreme Court decision also implied that there is no constitutional distinction between a corporation and a human being. This is ludicrous. Sure, Court precedent holds that corporations are considered “persons” and are therefore entitled to Constitutional protections. Yet for the last 100 years, Congress has prevented corporations contributing directly to candidates, meaning that these “corporate citizens” are hardly the same as their flesh-and-blood counterparts.
Corporate personhood in no way sanctions equivalence. Just because corporations enjoy free speech protections does not mean they get every other protection afforded a human being. Example: Can a corporation vote? Can a corporation run for office? (I guess they can already get married, even if most gay people can’t.)
This ruling even goes against the Supreme’s own prior rulings. In 1982, the court reaffirmed “the need to restrict the influence of political war chests funneled through the corporate form.” In an earlier decision — on which this most recent opinion was supposedly based — the court said “a corporation’s right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office.” That hardly sounds like an endorsement for extending rights even further.
The myth of third-party benefit
My debate partner advanced the notion that the ruling will somehow benefit third parties, who will now be able to receive direct corporate funding, allowing them to more realistically compete against the majority parties. That sounds great, but it’ll never happen. Corporations like picking winners. Winners that they can influence once they assume office. If a third-party candidate, say a Libertarian, runs on a platform opposing. . . let’s just say media consolidation, because this particular freedom-loving patriot understands that a functioning democracy depends on public access to a diversity of voices. Do you think Rupert Murdoch is gonna fund that platform?
I’ve also heard it said that only mindless TV junkies are swayed by political advertisements and that American citizens are responsible for being self-informed. To that I say, what fucking country do you live in? There’s a considerable number of people in America today who believe that our President is a Kenyan-borne Muslim Maoist. Now where did they get that idea? Perhaps it was Fox News, whose parent company is now free to pour dollars directly into any campaign it wants for the purpose of politically-expedient smears.
Do you find that comforting? I certainly don’t.
It’s one thing to expand our imperial ambitions into untapped capital markets through a murderous nexus of corporate/elite fundamentalist/state power. It’s another to sell our own democracy for scraps. The Supreme Court has now guaranteed that only the most privileged groups in our society will have a voice in the political process. This is not only shameful, it hastens the end of our bold experiment in Liberty and Justice. I wonder what Lady GaGa will wear to the funeral?