The Modest Supreme Court
A regular reader of this blog sent me an email with this invitation: “John, You need to write about this f****ing corporate First Amendment bull**** on your blog.” I assume he’s talking about the Supreme Court’s decision in Citizens United on Wednesday, which removes all meaningful federal and state regulation of what corporations can spend on elections. OK, motion granted.
The case is, strictly speaking, endless, running to almost 200 pages including concurrences and dissents. Speaking specifically of the 5-4 majority’s several opinions, it’s not surprising that the thing is so long. It takes a lot of ink to (1) try to justify the overruling of two recent Supreme Court decisions (Kennedy majority opinion); (2) attempt to square this act of breathtaking judicial overreaching with a stated judicial modesty (Roberts concurrence); and (3) strain to construe the holding as consistent with “original intent,” as though the founders of the Constitution would have seen the modern corporation as a full person entitled to the unfettered protection of the First Amendment (Scalia concurrence).
For all of Kennedy’s bloated rhetoric and tedious justifications, the syllogism it relied on is, at root, this: Corporations are groups of people. People have First Amendment rights, so corporations do, too. And the media — not all bloggers, though, thanks — arecorporations, too. If they have full First Amendment rights, why not all corporations?
There are so many criticisms one might level at this decision. Most centrally, it overlooks the agency and accountability problems that insulate corporations from their shareholders. In an age of the vast and diversified portfolio, many investors — including this one — don’t even know where all of their money is invested. Whatever corporations my modest loot happens to be invested in right now don’t speak for me. Will this decision force me to do something different? Maybe, but I doubt it. It’s just not reasonable to expect people to keep track of all of the messages their corporations are spreading around, many of which are done in subterfuge.
As to the point about media corporations having a voice that legislation doesn’t allow other corporate actors, it must be said there’s something to it, as “the press” is a far cry from what the Founders knew. For a typically first-rate account of the evolution of the press and its effect on democracy, I recommend Paul Starr’s piece in the current Atlantic. Starr’s account lays out the fuzzy line running from MSM to partisan cable outlets, to blogs and other web presses. But investing, say, major pharmaceutical companies, houses of finance, and major labor unions (yes, the ruling applies to them too, but they have much less power these days than the corporations they battle), with the full panoply of First Amendment rights afforded citizens or the press that has historically informed them is the action of a Court more interested in Republican party dominance than with something as quaint as “legal principle.”
But Chief Justice Roberts is just “calling balls and strikes.” No one should be under any illusions about the current Court’s agenda. But what can be done?
How about public financing of campaigns? Maybe it takes something this awful to get us to reform our terrible, bloated, and downright wasteful system for electing our politicians. If something isn’t done, and soon, the corporate influence may swamp everything. I have a fantasy about a Pushcart War style of insurgency by the blogosphere, but our pea shooters might not be enough against trucks of this size. If you’ve never read this children’s book, do it now. Simple, but kind of chilling.