|« Digital Divides the Neighborhoods||Poverty Rates Spiking in Chicago Suburbs »|
Law Mon Jan 25 2010
News of the Supreme Court's decision, Citizens United v. Federal Election Commission was bone chilling. liberal talk radio and blogs lit up with fiery condemnations of a right-wing activist court determined to auction American democracy off to corporate power. It is likely that descriptions of the decision by a media caught in a cycle that could not have given them time to digest the 180+ pages of dense reasoning and citations contributed to the reflexive outrage. But a lay reading of the decision and the most relevant case law revealed that critics were not engaging the majority's arguments. Not only this, but much of the criticism was based on conjecture about political outcomes.
A few misconceptions about the decision arose quickly: first, that the decision was based on "corporate personhood", which it does not. Second, that the decision eliminated restrictions on direct campaign contributions. It did not: the court was looking at electioneering-style political speech (e.g., a television ad saying "Vote for Steve" or "against Heather"). Lastly, that the court was overturning some landmark Supreme Court decision or decisions: it did not. (And even if it had, so did Brown v. Board of Education overturn Plessy v. Ferguson.)
Ultimately, the court is saying that associations of individuals cannot be denied free speech rights because of their potential influence or who they are.
This may, finally, be the end of the so-called "electoral strategy", the approach to movement politics centered around influencing and effecting state and federal elections. That is among the first of several conclusions one can draw after reading the majority decision, authored by Justice Anthony Kennedy.
Upon release of the news, commentators, particularly liberals, have decried what they perceive as the death knell for democracy in the United States. While the decision, which essentially fully deregulates electioneering in the United States by declaring limits on corporate spending on elections unconstitutional, is trouble for any number of reasons, its legal reasoning seems sound and its long term impact could be beneficial for Left and libertarian movement politics.
There are a few things to assert from the get go: first, that the influence of corporate money on American politics and governance is already pervasive and pernicious. Second, that at least for the last generation, the Left has squandered billions of dollars in cash and manpower in efforts to influence the electoral process with precisely no advance of any of the core principles of the Left; and finally, that broad interpretations of the rights in the Bill of Rights conform to left-wing politics, so long as there is a sincere belief in the compatibility of left wing politics with the Constitution.
Gore Vidal said that there aren't two parties in the United States, but actually one party: the "property party". Unlike most democracies, the only competitive parties both consider preservation of property--particularly capital--as the primary concern of government. The two parties approach this differently: the Democrats have a loosely Keynesian attitude that some redistribution ultimately protects capitalism from complete socialization when concentration of wealth becomes intolerable to the great masses of people, or underconsumption causes massive unemployment. Republicans, and conservative Democrats, act based on a belief that wealth accrues to the most meritorious, and redistributing it is both immoral and irrational, because it interrupts a natural efficiency.
Now, those are the theories. In practice, Republicans and Democrats both have spent
the last three decades at least using the coercive powers established by the New Deal to protect industries, individuals, and institutions that buttress their organizational power. Any honest observer of American politics would be forced to admit that principled Keynesians and principled classical liberals and conservatives are few and far between in either party, that the party in power considers its actions in terms of how they will impact their industrial and institutional patrons.
So what about the decision itself? With the disclaimer that I'm obviously not a constitutional scholar, the majority decision seems fairly sound at least in its rationale.
Liberal legal critics have centered their criticisms on two pillars: first, that the Court violated tradition by considering a broader question than they were asked to; and second, that the result of the decision will ultimately be deleterious to democracy by crowding out the speech of individual citizens (and thus mitigate their ability to express their right of free speech).
On the former different legal scholars of different schools, as well as non-partisan academics, seem split as to whether the court bucked tradition. But "bucking tradition" is not acting unconstitutionally. Specifically, the argument is that the plaintiff, a right-wing advocacy group funded by individuals and corporations called Citizens United, was not asking the Court, in its brief, to determine whether spending regulations on "corporate forms" constituted a violation of free speech, but rather were alleging that one element of the McCain-Feingold bill, specifically 441b, needed an exception or exceptions. Citizens United distributed an anti-Hillary Clinton documentary, Hillary, through a cable-on-demand service, and argued that the McCain-Feingold restriction on "election communications" that were "publicly distributed" did not apply. First, because a single viewer had to request to see the film (though it was free) and second, that the singling out of "corporations" shouldn't apply to corporations created for advocacy and funded by individuals and corporations. Why, critics ask, did the Court bypass this request in the brief and look at regulations on corporations as a whole?
Kennedy's reasoning on this point is that any attempt to rule just on this "narrower" ground would end up having a "chilling effect" on the expression of speech because the creation of tests and rules here would require organizations and individuals to go through undue hardships (similar to getting a declaratory judgments before engaging in speech) that amount to a sort of "prior restraint" (though he does say that it would not fully constitute prior restraint). Thus the majority decided that the larger question had to be looked at.
On the second point of criticism, while it is very likely that at least in the short term the effect of unregulated corporate money in electioneering will have the effect of protecting incumbents, resolving a constitutional question such as the intention of the First Amendment is not the same as considering a bill in committee: conjecture on outcome cannot be a serious criteria. The Court needs to determine what the right to free speech actually entails, not just how specific and various deifnitions of the right will effect politics and government.We'll look at other potential problems for this line of reasoning later.
One interesting point: Citizens United tried to argue that their movie didn't constitute electioneering speech and shouldn't be subject to disclosure requirements. The Court didn't buy that, to keep it short.
As mentioned above, populist critics from both sides have singled out "corporate personhood" as the problem. But it isn't clear from Kennedy's opinion that the majority took the right of the corporation as a "person" as the heart of their reasoning. Rather, Kennedy's opinion stresses that the "corporate form" is one type of an association of individuals. Anybody can agree that in general terms it would be nonsensical to say the individual has a right to free political speech but associations of individuals do not. We take for granted in fact that associations of individuals are central to the democratic process. Both Planned Parenthood and the NRA are associations of individuals acting through a corporate form.
Kennedy runs through the arguments that for-profit corporations can uniquely be restricted from speech. He points out that the argument that corporations could use funds generated through economic activity unrelated to their political aims has dangerous implications. Individuals and organizations do this all the time. You earn money and give it to a candidate without consulting with your employer or customers as to how you're going to spend your money. He also considers the argument that corporations, because of the immensity of their resources, could distort the expression of speech in the marketplace of ideas. He dismisses this as well, saying that the identity of the speaker cannot be a criterion for the government to limit their speech. If amount of wealth could be a criterion for restrictions, many professionals would be considered as disproportionately able to impact speech compared to the median income; as a matter of fact, so would white males.
These arguments don't seem perfect. Kennedy says that the argument that a shareholder shouldn't be compelled to fund political speech they disagree with is "underinclusive"--it doesn't actually protect the shareholder, it just outlaws extremely specific types of speech (electioneering communications made within 30 to 60 days of an election). Also, what about corporations with only one shareholder (which constitutes a significant number of corporations)?
The majority's defense against the line of argument that corporate speech is sufficiently protected by their ability to create political action committees, or PACs is that the creation and maintenance of PACs constitute undue hardship as a prerequisite to speech. This I'm not sure about; the opinion doesn't detail any kind of test for undue hardship on these questions, Kennedy just details how hard it is to create and maintain a PAC (and also that it takes significant time, which is a facial restriction on speech). Getting government permission to create a PAC before engaging in speech does seem excessively burdensome.
The decision overturned most centrally a case called Austin v. Michigan Chamber of Commerce. The majority was specifically concerned that ultimately Austin's rationale in defense of McCain-Feingold would end up banning the political speech of media corporations. (The rationale in that decision is referred to as "anti-distortion", because it was based on the idea that corporations have disproportionate ability to distort the political conversation). Following from this, Kennedy argues, if we carve out an exception for media corporations, we are discriminating against corporations that don't have a media outlet in their corporate structure. GE owns NBC; why should GE get to influence political speech but not Progressive Insurance?
A potential counter-argument--and this probably requires a detailed knowledge of constitutional case law--is that the First Amendment separately protects the freedom of the press. However, you are still left with defining the press.
Even if we take that last part of the rationale out, the majority's arguments still seem fairly sound. How do you ban the speech of one type of corporate form--one type of association of individuals--without ennabling the restriction of more and more such associations to engage in political speech. Interestingly, much of the cited case law in this part of the opinion comes from ACLU-argued cases on behalf of labor organizations.
Part of the liberal panic is undoubtedly a reaction to right wing salivating. And certainly a significant portion of the right is excited only about the electoral benefit they know they will gain when big business can spend more freely on elections. The real test of their sincerity in the belief in free speech will come when the effect of such a broad ruling--that associations of individuals should enjoy the same rights as the individuals that compose the association--is applied to worker and community organizations. For example, the right has for years tried to place limits on how union members can be rebated dues spent on politics, or get out of paying agency fees (in "right to work" states, nobody can be compelled to pay "agency fees", essentially discounted dues; compulsory union membership is illegal everywhere). Libertarians are fond of crocodile tears on behalf of workers who pay an agency fee to a union treasury to pay for contract services that protect them and guarantee them due process and better wages and benefits. With this ruling, that argument is hard to square with the finding that shareholders are not losing any rights when their cash is spent on the corporation's political aims. Particularly when you consider the character of the vast majority of stock ownership--institutional investment and 401(k)s where the original contributors have little or no choice over where their money is invested, the rationale for right-to-work gets shakey.
The "cash is not speech" argument is also pretty easily disposed of (and I admit to holding to this in the past). While that expression is literally true, we would also have to admit that cash or its in-kind expression is pretty integral to the freedom of speech as applied in the political process. I think like me most people consider this only in terms of campaign contributions.The decision though isn't about campaign contributions, but electioneering generally. With both elections and other policy issues, the spending of money or use of manhours is necessary for the expression of speech. So while cash is not equivalent to speech, undue regulation of it is obviously a limit on speech, particularly if the government can use identity as a basis for restricting it. We wouldn't tolerate a law that protected your speech but forbade you from using any money to express it.
That's not the big picture, though, because I don't disagree that the impact in at least the short term will be that corporations will be able to disproportionately impact our elections. So let's look at it: liberals and the Left are always talking about how the general population agree with our positions--most recently for example on the public option. If you agree with those statements, why are they not reflected in government policy? I won't believe any answer you give beside "corporate lobbyists". The pernicious influence of high-powered industry lobbys have effectively thwarted basically every left-wing policy intiative in the last thirty plus years, and in fact reversed established policies. Yet the Left continues to spin its wheels in electoral muck, cycle after cycle being coopted by an election process that uses the money and energy of the Left and their petit liberal fellow travelers to win only to be faced with political fealty to organized capital after the swearings-in. For years, a debate has alternatively raged and peeped over the wisdom of this strategy. Perhaps now it can be laid to rest.
The New York Times in their editorial criticizing the opinion forecasted a return to the era of the robber barons. But the robber baron era shortly gave way to the greatest period of American progressive policy change and mass mobilization since the republic's inception: the Progressive Era and beginning around the time of the turn of the century bank panics and the First World War--and a daughter generation soon after--transformed American society into a modern society and built the ideological, cultural, and political infrastructure that created the progressive income tax, smashed monopolies, abolished child labor, radically widened the franchise and liberalized the Senate, regulated the banks, created workplace and consumer protections for the first time, guaranteed the right to organize a union, and culminated in the New Deal and trained the generation--men like Bayard Rustin and Martin Luther King, Jr.--that would give birth to the Civil Rights movement. All because the left focused on confronting corporate power and organized money directly through workplace actions, boycotts, and civil disobedience.
The sides are more clearly drawn now, and the enemy will be forced to reveal itself. Its high time the Left came to terms with this and turned thier attention organizing against corporate power itself. During his ascencion, Barack Obama skeptics were regularly eviscerated for pointing out that his small dollar "revolution" was basically a myth, that he was cozying up to Wall Street through the Hamilton Project, and that he was hardly less of a corporatist than Hillary Clinton, as his service with the education privatization heavy Annenberg Challenge, as one example, showed. National Democrats in particular have been able to create a sinister pastiche blending "people power" with corporate power. The result has been disappointmet and, worse, disaffection.
During the health care debate, the CEO of Whole Foods faced a potential customer revolt--as disorganized and unfocused as it was--due to his haughty "free market" ideological opposition to unviersal health care. Imagine if all the energy worthlessly poured into citizen lobbying for the public option had been focused on confronting the corporate power funding the insider game. The shift from a producer-focused to a consumer-focused policy environment means that the horizontal witholding of labor (e.g., strikes and occupations) is not enough: a horizontal witholding of consumption (boycotts) is needed, too. Faced with an electoral process hopelessly dominated by corporations, maybe we finally accept this reality and begin to organize towards those ends.
For years, corporate power has undermined the right to organize. Labor law in the United States is actually outright hostile towards the right to organize and workers organizations. So not only did labor diminish in size, but the shift to consumption meant that worker organizations wouldn't be enough, anyway. Broad-based action on both the consumption and production side is the only real option for true confrontation of corporate power.
Supposedly, the Left, because it is in principle anyway devoted to devolution of power to the working class, should have the quantity of people on their side. However, very little effort has been put into organizing along class lines a broad based movement. Instead, organizing has been relegated to inside identity groups and for ephemeral political and elective initiatives. As a result, the Left has no ability to mobilize people on a mass level. With the electoral process eliminated as a viable strategy, resources can finally be diverted to organizing at the community and workplace level. All this decision does is remind us that a small number of corporations--by no means corporations generally--have accumulated much too much power and wealth. Antipathy to large corporate entities is common across the working class, the intelligentsia, and even among many professionals and small business owners. Draw the line and watch who comes to the left side.
Look at discount retailers, like our friends from Bentonville, Arkanasas. They move into markets where they mostly cannibalize existing wealth. As much as 84% of their sales come from existing businesses. This means that consumers have a viable option should they choose to abstain from patronizing that business. Boycotts are notoriously difficult to organize--but they enjoy the absence of the hostile environment created by employers when workers try to organize. That type of broad-based organizing is not easy--but how many people, of all ages and from all regions, pour their time and money into an electoral process that is already, as we demonstrated above, fully dominated by corporate power? Shift those resources, and people power can confront corporate power head on.
The majority opinion doesn't preclude, at least from what I could discern, regulations such as outlawing political spending by entities that receive government money, or even full public financing of election campaigns. The most sinister corporate influence comes from industries that rely on government business: say what you will about Wall Street, but the defense industry profits from war. And the big investment banks, does not just pursue deregulation but also relies on government guarantees to pursue their risky ventures.
As for Libertarians--or those who consider themselves "free market" advocates--here's the perfect chance to call their bluff. The reality is that the largest and most influential corporations don't actually want to end the coercive power of the state to influence economic results. They benefit the most from that power, after all. Since government grown over the last half-century, large corporations have accrued immense wealth. Whether through trade protections, the coercive opening and enforcing of markets in the developing world, or the instigating of armed conflict, the mightiest corporations not only enjoy government activity in the market but require it. Will the new corporate money in the political process go to actually "Libertarian-izing" the economy? Or merely tilt the redistributive power of the state further towards themselves? And will Libertarians be able to maintain their ideological authority on the right in the face of those types of egregious violations of their principles? When Big Blue from Bentonville preserves the Medicaid system that subsidizes their razor thin profit margin, will they mewl about ugly corporate influence protecting socialized medicine? Or will they merely hew to the petit conservative line that defends the status quo and "might makes right"?
Libertarians will be as quickly offended by the activities of corporations in the political marketplace as the Left. Ending regulatory regimes may happen, but with unlimited influence over the immense power of federal government, what do you think will happen? Big business will hand it over? Will liberalize markets to allow for more competition? Already, the economy is becoming dominated by larger and larger institutions, and those institutions will do precisely nothing to reverse that trend. "Meritocracy" is of little interest to the guys at the top.
On another level, the greater inclusiveness of the right to free speech could pay dividends as well. Years of labor case law have priveleged private property over the free speech rights of workers who are subjected to hostility. Employees are also subject to bizarre "duty of loyalty" restrictions that limit their speech. Nowhere is the freedom of speech more restricted than in the workplace. If the march is toward a larger, more free definition of speech, that should--rationally anyway--chip away at the semi-coercive power of employers over their employees. Of course, the right wing argues that you can always choose to work somewhere else. Yet they are quick to forget this truism when they rationalize "right to work" laws by lamenting "compulsory" union dues.
Maybe this is cynical, but it's what we're left with. A constitutional amendment to revoke corporate personhood is probably a good idea, but I don't know that this decision would be seriously impacted by that. Kennedy didn't anywhere draw a clear line between the decision that created corporate personhood and the rationale for the decision. Skepticism coming from concern about the personalities on the court is fair enough--but there is still a swing vote (Kennedy) and the reasoning of this decision could end up being powerful for the "progressive interpretation" judges to use free speech rights to protect individuals against state and corporate power.