Among the wide variety of reactions to the Supreme Court’s decision in Citizens United v. FEC was the novel suggestion that it might actually be good for the left (on the Chicago-based blog Gapers Block). The reasoning was that now that the cards are stacked even more in favor of corporate rigging, progressives should have no bones about re-aligning more of their resources to organize against corporatocracy, instead of their allegedly failed attempts at protecting consumer and environmental welfare from within political institutions.
While evidence abounds that corporate influence in politics is already disastrously pervasive, progressives cannot gain from ceding the remainder of our inside men. There is simply much more power concentrated in the making of rules than in the daily revenue or PR impacts of a boycott here or a demonstration there. Those tools are important – indeed, they’re essential for the civic health of our democracy. But they are simply no substitute for elected officials who will take a principled stand for consumer and environmental protections, and a not-quite-totally-plutocratic distribution of wealth.
Gapers Block goes on to say:
“…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 definitions of the right will effect politics and government.” [italics added]
This is an apt statement of the judicial philosophies of the Court’s conservative majority, but it is hardly a model for the work the constitution began: creating a stable, fair, and open society where justice and merit have a fighting chance against entrenched giants unburdened by civic or community concerns. I believe that there has not been nearly enough attention paid to “how specific and various definitions of rights will affect politics and government.” Laws have consequences, and it takes a willful and disturbing belligerence to ignore the second when deciding the first.
Would considering those consequences in resolving constitutional questions make those resolutions less parsimonious? Yes, in some cases (like it should have in Citizens United). But I believe that a little parsimony in constitutional interpretation is a small price to pay for protecting some semblance of balance in the distribution of political power. That kind of power, especially in the hands of astronomically profitable corporations, already reinforces itself, because accruing influence is simply what massive profits do. But extending corporations’ ability to influence the rules under which their massive profits are made tilts the scales beyond their already precipitous imbalance.
If we are interested in preventing the economic dominance of a handful of super-corporations from translating perfectly into political dominance, we must establish an explicit limit on their ability to influence the very rules that govern them. Who can sincerely believe that mega-corporations like ExxonMobil and Chevron, Comcast and AT&T, Monsanto, or GE have the public’s interest in mind when they spend hundreds of millions of dollars every year to fashion rules contributing to their bottom lines?
If we wish to retain the only sane basis for these mega-corporations – that they exist to improve the well-being of individuals’, and not the other way around – then we cannot allow them to crowd out the robust, balanced marketplace of ideas with ruthlessly calibrated and lavishly financed campaigns of singular, profit-driven interest. I take as a starting point that that is fundamentally important, and ask then how it can fit with the constitution and existing case law.
This may seem to insufficiently address existing case law, but I believe it is a mistake to allow the conversation in Citizens United, or the broader question of corporations’ rights, to be restricted to legalistic skirmishes. With a question as fundamental and consequential as the 1st Amendment, we have a responsibility to consider not only the intent of the constitution’s authors or interpretive parsimony, but also the kind of society we would like to create in our increasingly power-skewed world.