Wednesday, January 27, 2010

Citizens United

The recent Supreme Court decision that gives corporations the right to make unlimited campaign contributions has been defended by some people, including, notably, Glenn Greenwald, who take an absolutist view of the First Amendment. On their view, the issue is not whether corporations are persons since the amendment merely states that Congress shall make no laws abridging the freedom of speech and does not refer to who does the speaking. I find this argument utterly unconvincing and not just because it seems to imply that Congress can’t limit the rights of tarot decks, Ouija boards, and Urim and Thummim to protected speech. Governments make corporations and grant them privileges and immunities that natural human persons do not possess. It is settled law, as I understand, that the speech of military officers, teachers, and doctors in clinics receiving federal funds can be limited so long as they are acting in their official capacity, so the rights of corporations, which are creatures of the state in an even more fundamental way, should not be sacrosanct either, especially since corporations aggregate money in ways that living human individuals cannot. Precisely because they surpass the citizens in actual power, it is wise and right to limit their legal status to prevent them from being more than persons under the law.

It has been suggested that the practical effect of Citizens United has been overestimated and that corporations will either not choose to or not be able to control elections by throwing around huge sums of money or, more plausibly, that the newly discovered rights of the corporate superpersons will turn out to be superfluous since they already own the political process. More optimistically, it might be also be pointed out that a vigilant public could find ways to get around the ruling: it is hard, after all, to write checks while hanging from a lamppost. The actual effects of legal rulings are always hard to predict, and ironic outcomes are quite likely. Unfortunately, ironic is not a reliable synonym for good.

I note in passing that I do agree with the majority of the Court in one respect. Neither one of us take the words or the meaning of the Constitution as sacred and inviolate. The majority bases its opinions on what it thinks is best for the Republican party at a given time while I read the fundamental documents by the light of what I find enduringly moral and defensible in them. I would probably try to respect precedent more than the Roger’s court because I perceive a huge practical value in the predictability of the law, but I recognize that you can’t dispense with special pleading just because you think you’re sincere. On some fundamental level, it isn’t the methodology but the ethics of these jurists that I find vicious.

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