Sunday, February 21, 2010

Corporate Interests

Years from now Citizens United v Federal Election Commission will stand as one of the most stunning decisions in American jurisprudence. Rescinding a century of case law, the Supreme Court has offered corporations freedom to participate in our election process as if they were individuals with votes and voices.

Writing in today's Idaho State Journal on the Citizens United decision and how the decision signals a perspective in this country that favors a political oligarchy rather than the republic form of government we currently have, Leonard Hitchcock had the following to say:

"Corporations are called “legal” persons. You and I are called “natural” persons. Because a corporation is actually nothing but a collection of natural persons, to refer to it as a “person” is roughly equivalent to saying that a flock of geese is itself a goose. Despite this apparent absurdity, corporations have, over the years, managed to acquire personhood, at least in some respects.

"For-profit corporations have sought this status because they realized, early on, that they would be better able to make money if they were like persons. Fortunately for them, our country has traditionally encouraged the making of money. It has also been inclined to show special consideration to those who possess it. Hence, during the 19th century, as industrial corporations grew and flourished, they prevailed upon the judicial system to grant them rights previously reserved for individual citizens.

"Initially, the ways in which corporations were allowed to resemble persons were limited to the business arena. It was as homo economicus, in other words, that the corporation made its first personal appearance. Corporations were granted personal rights that applied directly to business affairs: the right to buy and sell property, the right to borrow money, and the right to make legally-enforceable contracts. They also acquired a right peculiar to their own interests: the right to free their investors of any responsibility for debts incurred by the corporation. This had a very salutary effect upon their ability to accumulate capital through the sale of stock. Another special and peculiar legal endowment was immortality. Natural persons come and go; corporate persons need never die.

"By the end of the 19th century, the corporation had gained an additional and extremely valuable concession from the judicial system: the understanding that they were among the “persons” protected by the provisions of the 14th Amendment. That amendment, originally created to protect freed slaves from repressive legislation by the states, assured “due process,” i.e. equitable treatment, to individuals. What “due process” meant for corporate “persons,” at least during the first three decades of the 20th century, was protection against state governments’ attempts to tax them, limit working hours for their employees, prevent child labor, and in other ways inhibit the beneficent progress of free enterprise. When the Depression hit, the public would no longer tolerate this interpretation (called “substantive due process”) of the 14th Amendment. Nonetheless, corporations remain under its protection, albeit with less indulgence from courts than before. In the years following the Depression few new personal rights were acquired by corporations, except the protection against double jeopardy.

"But on Jan. 21 of this year, the Supreme Court chose to bestow upon corporations an unlimited right to free speech; the right, in other words, to engage freely in political speech via contributions to political campaigns from corporate “general treasury” funds.

"Corporations, it must be noted, already had the right to contribute to campaigns, in that they could create PACs, they could fund “issue” advertisements, they could engage in political communication with their own employees and stockholders, publicly endorse candidates, host fundraisers for candidates, and, of course, all stockholders, employees and management personnel were perfectly free, as citizens, to be politically active in whatever way they chose. The law that the court’s majority declared unconstitutional (the Bipartisan Campaign Reform Act of 2002), clearly did not, as alleged, “ban” the political speech of corporations.

"Neither did that law violate the intention of the Founders. Few corporations existed at the time of the Founders, and those that did were chartered by states for the public good and tightly regulated. It is unlikely that the Founders would have even imagined the possibility that corporations could have First Amendment rights.

"The Supreme Court’s absolutist view of free speech protection is similarly unhistorical. Courts have long recognized that free speech, even of natural persons, may be limited in the interests of the public welfare. That the public welfare is corrupted by the enormous power and influence of corporations — artificial persons — is generally acknowledged by conservatives and liberals alike. That even the weak constraints upon that influence established by congressional legislation should be found unconstitutional makes one fear that we are about to accelerate the country’s transformation from a republic to an oligarchy."

Prior to the Citizens United decision, many members of Congress were elected to represent their states and/or districts with the assistance of campaign contributions from individuals contributing on behalf of their industry and/or company. However, those contributions were limited and companies could not participate in the campaign process directly.

To illustrate how the campaign system has worked in the recent past, former Congressman Bill Sali was elected by and large with the funding provided by the Club for Growth. Donor data represented on the individual profiles of Congressmen Minnick and Simpson and Senators Crapo and Risch at Open Secrets reflect the top industries contributing to their campaigns. Congressman Minnick's top campaign contributors are Goldman Sachs, Trilogy Partnership, Primary Health, Bank of America, Lehman Brothers, UBS, and Blue Cross/Blue Shield. Is it any surprise that Minnick has opposed health care and financial regulatory reform? Not if you subscribe to the cynical view that money equals votes. Congressman Simpson's top contributors are Idaho Power, URS Corp and Qwest. Senator Risch--Melaleuca, Idaho Power, URS Corp, Contran Corp, Qwest, Blue Cross/Blue Shield, and Chevron Corp. And Senator Crapo--Citigroup, JPMorgan Chase, Lockheed Martin, URS Corp, AT&T, and Goldman Sachs.

If Congressman Minnick's buddies at Goldman Sachs can contribute such a large amount of money through the people employed there in the past, what will prohibit Goldman Sachs from outright buying Congressman Minnick in the future? There are still limits as to how much an individual or PAC can contribute, but the sky's the limit when it comes to campaign ads. How long until we see a campaign ad with Congressman Minnick discussing his career as a "successful businessman" with the 'paid for by Goldman Sachs' disclaimer? Unfortunately, probably not long.
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Editor's Note: "Greed personified: Corporations and the Court" appears in the 2/21/10 edition of the Idaho State Journal as well as on the ISJ politics "blog" and is re-published here, like previous columns by Mr. Hitchcock, with permission of the author.

1 comment:

Dr. Michael Blankenship said...

The payola system goes deeper than just elected officials. Toyota recently bragged that its lobbying efforts saved it $100 million, but at the expense of at least 34 deaths associated with autos that could not stop. The regulatory system will become even more of a joke as corporations purchase control.