Saturday, October 16, 2010

The United States of America, Inc.: Whither Now Representative Democracy?

In its most important and controversial [and, likely, most unsustainable] decision to date, on January 21, 2010 the Supreme Court of the United States (SCOTUS) confirmed its unabashed love affair with de facto Corporatocracy as the presumably rightful system of America's governance.

In Citizens United v. Federal Election Commission, the conservative Roberts-led court, with Scalia, Thomas & Alito firmly in tow & cheer leading from the sidelines, overturned 100 years of seemingly settled American jurisprudence to opine that corporations are entitled to the same unfettered political free speech rights of individual [human] citizens under the First Amendment to the Constitution. Cynically tossing aside even lip-service to their pledges of judicial restraint, respect for precedent and their supposed disdain for activist jurisprudence, this clan of purported Strict Constructionist & Originalist legalists, now, SCOTUS asserts, corporations have virtually unrestrained rights to spend from their economies-of-scale-swollen coffers to influence elections & political outcomes.

Businesses can, to the extent that direct advocacy advertising & propaganda spending (among other things) are determinative, buy elections.

And all this with a supposedly moderate Justice Kennedy providing cover for [indeed, championing] their ill-considered scheme to disenfranchise individual citizens from the value of their votes and their authority over elected representatives.  So much for liberty and justice for all.

How they reconcile this result with their professed purist Strict Constructionist, Originalist impulses is beyond my meager reckoning.

For instance, in his amicus briefs to the court, Jeffrey D. Clements - former Chief of the Public Protection and Advocacy Bureau in the Massachusetts Attorney General’s Office & currently a litigation and appeals principal of Clements Law Office, LLC - "seeks to show that if the Court deems Congress and the states to be powerless to restrict corporate political expenditures, [then] the piecemeal and unwarranted fabrication of a corporate rights doctrine that has gathered pace over the past three decades [Austin v. Michigan Chamber of Commerce, McConnell v. FEC] will have reached an extreme conclusion."

Clements argues that "[s]uch a conclusion by the Court would not only be wildly out of touch with the realities of corporate power in contemporary American life, but [also] would disregard the Court’s proper separation over 200 years of the constitutional rights of people from those claimed by corporations."

But perhaps instead, given that Clements' arguments were not persuasive to the razor-thin 5-4 majority, an even better depiction of their incoherence can be found [here] in Richard L. Hasen's subsequent critique in the June 4, 2010 edition of the Michigan Law Review (Michigan Law Review, Vol. 109, 2011)?

In any event, I remain befuddled.

If independent campaign spending do not corrupt the political process (Kennedy et al's words, not mine) and the identity of the spender need not be disclosed, then SCOTUS, if it is to follow the majority's doctrine, will eventually have to allow unlimited campaign spending, even by by foreign nationals!!!

The dystopian future global corporate plutocracy is at our doorstep, yet SCOTUS' conservative majority that this is what our founding fathers plainly intended?

I hardly think so. Jefferson would be rolling over in his grave.

Think about that, Gadsen flag-waving Tea Baggers; your political bed mates & supposed Constitutional guardians are turning over your "common sense Americans" to the tender mercies of:
Walmart, Exxon Mobil, Chevron, Conoco, Bank of America, Ford, GE, JP Morgan Chase, Goldman Sachs (USA)
Royal Dutch Shell, ING Group (Netherlands)
Toyota, Japan Post Holdings (Japan)
Sinopec, China National Petroleum, State Grid (China)
AXA Insurance, BNP Paribas (France)
Allianz, Mercedes Benz (Germany)
Reliance Industries, Tata Motors (India)
Gazprom, Lukoil (Russia)
Petrobas (Brazil)
Samsung (Korea)
Hon Hai Precision (Taiwan)

Maybe if they all paid US income taxes, that'd be just fine and dandy, huh?

What do we do in the meantime? Two articles forthcoming in the Harvard Law Review propose methods for countering the political corruption that some fear will result from corporate contributions.

Samuel Issacharoff suggests that reforms designed to increase campaign contributions by non-corporate donors would help to diminish corporate influence. I am not so sanguine about this suggestion. A court that holds corporations are full persons should have no trouble finding a 14th Amendment Equal Protection problem with such reforms and strike them down, too.

He also favors prohibiting such spending by entities uniquely capable of distorting government policy, such as government contractors. Again, I am not convinced this would be anywhere near a politically satisfactory solution. Government contractors are only a [relatively small] portion of the larger problem, which is the attempted transformation of our Republic - ostensibly a representative democracy - into a corporate plutocracy.

In a separate article, co-authors Lucian Bebchuk and Robert Jackson contend that decisions regarding political spending differ from ordinary business decisions, and thus they propose new rules to align corporate political speech with shareholder interests. I am a bit more convinced that this could be a more effective route towards a comprehensive solution. Empowering individual shareholders & pension boards to become greater counter-balances to corporate management's self-interests seems a no-brainer good idea; the trick will be how to structure a system so as to prevent concentrated corporate interests from overwhelming those of individuals. Remember: Wall Street owns a lot of capital, not just Main Street (in fact, maybe more... I'll have to look it up).

In the last article of SCOTUSblog's Academic Roundup, Deborah Hellman (via the Minnesota Law Review) offers a way out of the confusion by challenging the assumption that contributing money to campaigns constitutes speech protected by the First Amendment. She points out that money facilitates the exercise of many constitutional rights and yet spending in furtherance of other rights is not always constitutionally protected.

The Court now takes the assumption as a given, and is unlikely to abandon it in the near future (unless Kennedy can be swung over, or if Scalia or Thomas grow old & retire earlier than I fear). But, maybe, just maybe Hellman's position can provide a face-saving way out for the majority after the consequences of their short-sighted decision comes back to haunt them in future cases?

Academic round-up : SCOTUSblog: "- Sent using Google Toolbar"

Finally, we can also fight.

The question is ultimately a political one, and those of us who believe the Citizens United decision was fundamentally wrong can organize together to reverse the narrative.

One such effort is coordinated, which has a proposed Constitutional Amendement and an accompanying resolution petition drive that points a way. Personally, I think the proposed Amendment needs some work (e.g., possible carve-outs to avoid religious or State expression?).

But, it seems a good place to start. Otherwise, we all become at will employees of USA, Inc.

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