Over the past few weeks, President Obama, hitting key political battlegrounds, has taken bus tours of North Carolina and Virginia and unveiled his Housing Refinance Program and his Student Loan Initiative in economically strapped Las Vegas and Colorado, respectively. Desperate to improve his public approval ratings, Obama has created programs designed to alleviate economic distress and has taken these programs directly to the people. This is how it should be—the candidate catering to the voiced needs of the people responsible for his election.
Imagine, instead, the President designing his policies to garner the support of the likes of Exxon Mobil, General Electric, General Motors, or Bank of America. What if the Fortune 500 companies held the election in the balance and campaign stumping simply involved shaking hands with top corporate executives? Suppose town meetings and debates were replaced by question and answer sessions before stockholder meetings.
As a result of the Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission, the imagined scenario might offer a more viable means of securing election success. In Citizens United, the Supreme Court maintained that corporations are persons entitled to First Amendment rights. Hence, the government may no longer limit the campaign contributions of corporations because to do so, the Court claimed, would be to deprive the companies of their First Amendment right of free speech. The decision overturned two cases, Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission, which had authorized limitations on corporate spending. Although the Citizens United decision did not overturn laws that restrict direct contributions to candidates, the justices at least recognized that the consequences of Citizens United could be tantamount to removing all restrictions.
In the name of free speech and unrestricted political discussion, the Court has raised a specter of corporate domination at the expense of individual freedom. By treating corporations as persons under the Constitution, and by protecting their personal rights, the Court necessarily dilutes the First Amendment rights of the individual. Responding to the Citizens United decision, President Obama labeled it “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” Justice Stevens, who wrote a stinging ninety page dissent, aptly points out that the court erred in equating money with speech, and, in doing so, it furthers the risk of corruption.
The problem with Citizens United‘s ruling is that it goes to the very heart of our republican system of government–how to give a voice to each citizen. In other words, how does one keep the rights of the individual from being consumed by the demands of special interest groups? The framers of the Constitution addressed and grappled with this very issue. James Madison called these special interest groups factions, which he defined in the Federalist Paper No. 10 as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Whereas he recognized these factions could never be eliminated, controlling the power of these factions was deemed of utmost importance, if the republic was to survive. Consequently, the Founding Fathers drafted the Constitution, separated powers and provided checks and balances, all in an effort to keep one segment of the population from becoming too powerful.
In the Federalist Paper No. 10, Madison argues the most common cause of factions is the unequal distribution of property or wealth. The tendency of the wealthy, caused by human nature, and hence impossible to eliminate, is to succeed by suppressing the rights of the weak. Consequently, the supreme task of the republic is to protect the rights of the weak. Otherwise, individual rights and freedoms become meaningless. If one applies Madison’s analysis of factions to modern corporations, the corporate structure provides the means by which a group of people can become “united and actuated” by their “passion.” This passion, to make money at all cost, is often “adverse to the rights of other citizens.” This passion, to cite only a few examples, has created a large populace addicted to nicotine, fast food, and gas-guzzling cars. It often exploits workers, by depressing wages, and consumers, by inflating prices. Left unregulated, this passion has little regard for the environment whenever conservation measures strain corporate profits.
Resonating the words of the Federalist Papers, Justice Stevens writes his dissent in the spirit in which the Constitution was drafted. He writes, “the Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare.” Referring back to the philosophy of Madison and other Framers of the Constitution, Stevens argues, “it was the free speech of individual Americans that they had in mind.” The chief problem with the Citizens United decision is that, by equating the First Amendment rights of corporations with those of individuals, it will, in the words of Justice Stevens, “cripple [efforts] to adopt even limited measures to protect against corporate domination of the electoral process.” The Court has sacrificed its constitutionally granted power to keep the corporate faction in check for the good of the people.
Reality suggests that corporate millions are not spent to promote innovations that would benefit the general welfare of the public, but rather they are spent to promote and sustain managerial interests and to subvert legislation that operates against that interest. Hence the corporate voice is not even the voice of the individual shareholders. No language in the Constitution mandates the extension of First Amendment freedoms to corporations. To the contrary, the intent of the drafters is clearly otherwise—protect the rights of the individual from the encroachment of factions. As a natural extension of the Court’s logic, Justice Stevens points out that soon the Court will be granting corporations the right to vote in order to exercise their newfound freedom of speech. If the Court continues to equate the civil rights of individuals with those of corporations, why not?
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