Those few parts of the Realm of the Weblogs that I still visit have thus far been pretty quiet regarding yesterday’s significant, if not already-blown-out-of-proportion, SCotUS decision in Citizens United v. FEC. (The Extraordinary Mark, unsurprisingly, comes down in favor of it.) Consequently, I haven’t found too many outlets for expressing my opinion (save Facebook conversations), so here I am, after a too-long hiatus, engaging in all the self-absorption that the personal Weblog permits.
Perhaps needless to say, despite my occasional libertarian leanings and rule-of-law-based reluctant Constitutionalism, the predominant front-porch republican strain in me immediately anathematizes the Court’s decision. Given the ease with which corporations ably circumvent what restrictions heretofore existed (as ably noted in an unsettlingly almost-persuasive defense of the decision by Glenn Greenwald), fears that this decision in any way really changes matters in practice are probably exaggerated, but I, nonetheless, worry about to what the messages that this decision send, however quietly they will reverberate in a nation of acquiescent sycophants and myopic, long-term-memory-challenged “activists”, will amount.
First, it is a First-Amendment issue, at least as “freedom of speech” has come to be understood and to be applied to “corporate persons” as well as to ensouled people. Accepting this — and further acknowledging that the wording of the First Amendment says nothing about to whom the freedom of speech belongs (“Originalism”, I suspect, provides an answer, but not one that “conservative” “originalists” presently on the Court would likely wish to entertain. See below.) —, I have to raise the predictable question about equating money with speech, or, rather, designating spending money as a form of speech. Specifically, my concern lies with equality, the equality of liberty. (Greenwald, again, makes a discomfortingly almost-persuasive case for money as speech.)
The reality is that “the average corporation” — “the small business: the dentist, daycare operator, or grocery store owner who has incorporated due to the nature of our litigious society”, as asserted by an ardently Republican good friend of mine — is not the average corporation financially able to “say” anything loudly enough and frequently enough to get things done. That being the case, doesn’t this still decision still warp freedom of speech, subjecting it to the market? That is, instead of an equally possessed right, the freedom of corporate (political) speech is something afforded more to those who have money than to those who lack it. (Problematically, we must address this same issue when we consider individual expenditures comprising political “speech”(; more on this, as a matter of principle, below). Practically speaking, the decisive factor seems to me to be that corporate influence tends, as a matter of finances, to be much more effective than individual campaign contributions, and that matters relating to economy of scale permit the large corporate entity to out”speak” the small businessmen more effectively than the wealthy individual can the small-money campaign donor. (Also, money-bombing seems to have shown that en masse, small-time donors can make a big splash, even if their recipients ultimately fail to gain sufficient traction to upend the political Establishment.) This seems to be either a rejection of soi-disant conservatives’ preference for “equality of opportunity”, or one hell of a reductionist stretch of said principle.
Now, on to a meatier point, returning to the more foundational question of corporate personhood. I have a serious problem with the precedent set, directly or not, by Santa Clara, fully detesting the very notion that anything other than an ensouled, free-will-possessing human is a person. But even accepting that, I am troubled by the theoretical threat to federalism that rulings of this nature — and, admittedly, the very notion of corporate personhood that I’m begrudgingly accepting as precedent — present. Allow me, no Constitutional-law scholar (and thus willing to be corrected, or supported, by someone better versed in the field) to demonstrate.
A corporation exists because it is chartered by a State government. That is, it is a beast of the State’s creation, which intuitively suggests that the State ought to be able to regulate it as it sees fit. So perhaps the Citizens United decision is the right one, prima facie, because it’s stripping the federal government of regulatory power properly left to the States(; we’ll leave aside implicit questions about inter-State commerce). However, by virtue of the Fourteenth Amendment (regarding which the SCotUS originally granted personhood to corporations (“Judicial legislation”?)), the State loses the right to regulate what it has created because the federal court has deemed this chartered — rather than incarnate — “person” to be worthy of Constitutional protections that, through the Incorporation Doctrine, the State must now honor. It may not be an obviously direct ramification of Santa Clara, Citizens United, et cetera, but it seems to me to be a legitimate cause for concern.
Then again, the Constitution was our first, worst mistake, an inherently centralizing document for the large, commercial republic, endorsed by the sorts for whom talk of the States was mere pretense.
[T]he Supremes were merely recognizing an established fact: that the government of the United States is a wholly owned and operated subsidary of corporate America. Why should the plutocracy be limited in the amount of money they spend in supporting their employees? What the Supremes did was to reveal how little they cared for “original intent,” since the founders never intended to give corporations the rights of natural persons.
Today’s structure of law gives corporations a spectrum of legal and constitutional rights which they routinely wield against people, communities, and nature. Corporations have more rights, for example, than the communities in which they seek to do business. They can and do use those rights to lobby Congress, impact elections, and to decide for us what we eat, whether mountaintops are blown off or not, whether there are fish in the oceans, and on and on. Their constitutional and other legal rights, together with their wealth, guarantee that they can define the debates that lead to the adoption of new laws—and often write the laws themselves.
Update: John Médaille offers his thoughts here:
All CU wanted was for the court to bless their end-run around the campaign laws. Corporate contributions were not an issue in the case, and not part of the relief that plaintiffs were seeking. But for some unknown reasons, the court decided to re-hear the case on grounds that had nothing to do with the plaintiffs plea. The rehearing was peculiar, not only in widening the grounds of the case beyond the issues that were placed before it, but in ordering the rehearing for September 9th, a full month before the court’s session normally began. This seems to indicate some undue haste in deciding so pivotal an issue. One is tempted to think that the majority wanted this issue decided in time to dismantle the current laws in advance of the coming congressional elections. One is permitted to ask here whether the court’s agenda is judicial or political.
In ruling on the issues presented to it, the court upheld the FEC against CU. But on the issues that were no part of the original case, they voluntarily threw out restrictions against corporate funding of campaigns, restrictions that date back to 1907 and have been upheld by every court since then, in test after test. They have, at a stroke, undone 100 years of legislation and judicial precedent. This is not evolution, but revolution, and a revolution predicated on some very peculiar grounds.
The majority of the court treated this as a “free speech” case. Yet, this is somewhat perplexing. As far as I know, CEOs have always had the right to say whatever they liked, to support whatever candidate they wanted, to go to whatever rallies they wished, and to write letters to the editor whenever they felt the need. That is, they enjoyed all the rights of free speech that every other citizen has. As far as I can recall, there are very few corporate executives in prison for expressing their opinions. The court, however, was not interested in the rights of the executives, but in the rights of the corporations as “legal persons” endowed with all the rights of natural persons. This is a rather peculiar doctrine that originated in another example of legislating from the bench, Santa Clara County v. Southern Pacific (1886), which granted “personhood” to corporations. This rule was a complete overturning not only of the court’s previous rulings, but of the long history of corporation law dating back to the Middle Ages.