On Monday the Supreme Court of the U.S. summarily invalidated a Montana law banning corporate financing of political campaigns.
Montana passed the Corrupt Practices Act in 1912. It was the tail-end of a period in U.S. history where the national and state governments were quite literally bought-out by wealthy individuals and corporations. The law was meant to prevent the political corruption and self-dealing emanating from Montana’s mining and ranching barons.
Without hearing arguments, the Supreme Court struck down a recent decision of the lower Montana Supreme Court that held the Corrupt Practices Act was not superseded by Citizens United vs. Federal Communications Commission (2010). Citizens United was the controversial decision of the Supreme Court that vitiated decades of campaign finance and reform legislation, and opened the doors wide to direct corporate funding of political campaigns.
While there are a wealth of technical legal arguments to consider, lets stay out of the weeds and look at the larger concerns for ethics and public policy.
Perhaps the most common concern is that it was a lost opportunity to correct the errors of Citizens United, wherein the court held that corporations are people, money is speech, there is no correlation between political power, corruption and wealth, and thus unlimited corporate spending on political activities is constitutionally protected.
Really? Really.
The idea that corporations are no different than natural persons, or that money is equivalent to protected speech, is startling.
Historically, Anglo-American law has adapted the idea of personhood, and applied it to social enterprises like corporations. This provided the legal rationale for corporations of all types to own property, undertake for-profit and non-profit activities, and provide limited liability for the members of the corporation itself. This legal use of person as metaphor has been used in other circumstances as well, such as with ships sailing the high seas.
The conservative majority of the Supreme Court, however, took this metaphor as a literal equivalence. They then extended it to speech, reasoning that if a natural person may use their own money to engage in political activity, then so too should corporate persons. In so doing, their decisions in both these cases rests on a set of deeply troubling and over-extended metaphors. Lets examine them in turn.
Corporate persons are clearly not natural persons in any real sense. They not only lack intrinsic value as sapient creatures, who are ends in and of themselves, but they are instrumental creations that serve human purposes. This is to say they are means used to achieve human ends. To equate them with natural persons confuses ends with means, people with their creations, and is a major failure of moral thinking.
Free speech is guaranteed to all citizens and immigrants to the U.S. Yet this comes with some very significant limitations. One cannot defame others, nor can one incite them into law-breaking or endangering public health and safety. Crying fire in a crowded theatre is an example. These limitations exist to balance free political and personal expression, with the well being of others and the political community.
Here too the court over-extended the metaphorical relationship between free speech and money, assuming they are equivalent in all significant respects. Money, however, is not speech per se, but rather a form of wealth that can promote or distort political dialogue. To treat it as equivalent to free speech is another basic error of reasoning. That is bad enough, but the Supremes then went on to justify unlimited corporate financial intervention in politics. This fundamentally threatens the health of our democracy and society.
Now here is where the third aspect of Citizens United comes into play. The majority opinion of the court explicitly argued that corporate personhood and money-as-speech posed no substance or appearance of political corruption. Here we are not talking about criminal offenses per se, but also the larger corrosive influences of undue political influence that is bought by wealth and distorts the ends and means of democracy.
Such an assumption seems willfully ignorant of the lessons of history and contemporary society. History is replete with wealthy elites using the power of their wealth and position to enrich and enable themselves at the expense of others. The privations of Feudal and monarchial Europe are cases in point. Not so long ago, Montana faced a similar situation, and the Corrupt Practices Act was adopted in light of that. Contemporary examples abound as well — the insulation of Wall Street financiers from legal consequences for their role in the current depression, the tax loopholes that allow politically connected multi-national corporations to pay no taxes and even collect refunds, the obvious role that private-interest super-pacs now play in selecting candidates for public office, the influence of lobbyists over the legislative and policy agenda, and so forth.
A democratic political community exists to serve and protect the well-being of all its citizens. That was the intention of the Declaration of Independence, the Constitution, and its Bill of Rights. By virtue of their power and influence, powerful corporations who operate as unconstrained persons can readily distort the purpose of democratic governance. It is not too much to say then, that the risks of corporatism are akin to those already recognized in authoritarianism, despotism, and the like.
That this decision undermines the Supreme Courts reputation is a second concern. The power of the judiciary rests on persuasion and reputation. Judges write decisions to justify their decisions to others. Sometimes they are right and somethimes wrong. Yet it is their fairness and good intent in reaching those decisions that legitimate a judicial role in our politics and society.
So lets put this decision in context. This conservative leaning Supreme Court handed the presidential election of 2000 to George Bush, and opened the doors of government to wealthy special interests through Citizens United. It is understandable then that this court is increasingly seen as a shameless arm of conservative partisanship. That bodes ill for the country and the world as we face major policy decisions and judicial review of issues that affect us all — health care, inequality, animal protection, environmental preservation and restoration, sustainability, and so on.
A third concern is that this decision undermines local and state efforts to ensure fair elections, by further opening all levels of governance to big money. This is especially troublesome as local and state governments are more suceptible to capture by private interest who use the public sphere for private ends. Dishonest politics, special favors to certain business interests, animal abuse in factory farms, environmental degradation through extractive industries, and discrimination against social minorities are all of concern. Think of recent attempts by Republican states to disenfranchise voters, special tax subsidies for business with no commitment to local economies, the yearly revelations of horrific cruelty to farm animals, the unregulated dangers of fraking for natural gas, and vitriolic attempts to discriminate against the GBLT community.
Not incidentally, the corrosive role of extreme wealth in politics was one reason for the rise of the Progressive Movement in the U.S. There were analogous movements in Canada (e.g., the Canadian Cooperative Federation), Britain (e.g., the Fabians), and elsewhere. The Occupy Movement in the US, and protests against austerity politics abroad, have a similar theme. There is a felt sense that the political and economic game is rigged for the benefit of elites, and such well-evidenced sensibilities are destructive of democracy. They eat away at the public’s sense of hope for social progress, and participation in democratic governance.
Having said all of this, the court is scheduled to rule on the constitutionality of the Affordable Care Act (a.k.a. Obamacare) tomorrow. How they rule will not only create ethical and policy implications for the country, but be interpreted in light of past decisions.
Do not get me wrong. Corporations are not evil in and of themselves. A wide swath of for-profit and non-profit corporations serve important private and public interests. Corporations do, however, need to be regulated appropriately, to ensure they do not detract from the public interest. And this means recognizing that corporations are not natural persons, have no right to unfettered political speech, and should not be allowed to distort governance by buying influence, politicians and political parties.
Image: Seal of the Supreme Court of the United States of America.