corporate personhood and campaign finance reform

source: reclaimdemocracy.org

source: reclaimdemocracy.org

The last few days have brought me a couple of new things to think about with regard to the difficulties brought up by campaign finance regulation. Unsurprisingly, the observations upon which I have stumbled concern the controversial Citizens United case of 2010, in which the Supreme Court decided that restrictions on corporate spending in political campaigns amount to an unconstitutional limitation of the First Amendment guarantee of freedom of speech. The first piece that caught my attention came from Ellen L. Weintraub of the Federal Election Commission, who published a pretty interesting op-ed in the New York Times. As Weintraub describes Citizens United, it holds that the "First Amendment rights of corporations may not be abridged simply because they are corporations." As Justice Anthony Kennedy stated in the decision, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

This seemingly innocuous statement, particularly its characterization of corporations as "associations of citizens," is actually at the heart of the controversy over campaign finance. The oft-heard statement that "corporations are people" (or, alternatively, "corporations are not people") is a slogan, not an argument. No one really advances the view that the corporation itself is a person, in any meaningful sense. Instead, pro-corporate jurists hold only that it is entitled to the same rights as a person. Why? Because it is a collection of persons, and actual people already have these rights. They cannot lose them, this thinking goes, simply by joining together with others who also have those rights. As conservative jurist Stephen J. Field wrote in the 1886 case that enshrined corporate personhood into American law, rights inhere "not in the name under which different persons are united, but to the individuals composing the union. The court will always look through the name to see and protect those who the name represents."

source: theatlantic.com

source: theatlantic.com

Admittedly, this is a terrible argument, simultaneously evasive and empty, circular and duplicitous. If "the court saw only individual rights when it looks at a corporation," I wrote in A Commercial Republic, "then it would be impossible to explain why individuals working together as a corporation enjoyed more rights, such as limited liability, than did singular citizens on their own." But it has played a significant role in American corporate law for a hundred twenty five years and counting. Thus its supporters know exactly what they are doing when they refer to corporations the way that Justice Kennedy did, as "associations of citizens." This well-chosen phrase evokes a New England town meeting or a civic organization out of Tocqueville while simultaneously emphasizing that corporate rights are the truly rights of actual people.

But Weintraub points out that if the rights of corporations are only those of the individuals who comprise the entity, then the status of those particular people is of the utmost relevance to the question of whether some specific corporation actually has the rights in question. In the United States, for example, only American citizens are guaranteed Constitutional rights. But "many American corporations," writes Weintraub, "are an inseparable mix of citizens and noncitizens." Since the logic of the "corporate personhood" position is grounded upon the idea that these entities are "associations of citizens," it is fundamentally mistaken. "Arguably," Weintraub continues, "for a corporation to make political contributions or expenditures legally, it may not have any shareholders who are foreigners or federal contractors." This is not really her position: she appears to mainly want clarity in the relevant law, and suggests a 20 percent threshold of foreign ownership. But I believe that her argument completely undermines the logic behind the automatic granting of Constitutional protections to corporations.

Source: yalebooks.com

Source: yalebooks.com

I encountered another interesting viewpoint on Citizens United in a book review in the Washington Monthly. I have not read the book, Richard L. Hasen's Plutocrats United: Campaign Money, the Supreme Court and the Distortion of American Elections (Yale). But the review, written by Gilad Edelman, suggests that it provides an interesting framework to think about this issues raised by that decision. Edelman provides some statistical support suggesting that the widely shared perception that rich people provide much of the funding for elections is, in fact, correct. From there, though, he raises the question that is so fundamental that it can be easy not to see: even if the wealthy donate disproportionately, why is that a problem?

Those who see in limiting donations a threat to the freedom of speech have answered that the only legitimate problem is corruption, and that this can only be understood in terms of a quid-pro-quo exchange of money for legislation. Those who resist this conclusion, such as Lawrence Lessig and Zephyr Teachout, focus their energy on creating a new understanding of what corruption truly is. If the term were defined more broadly than as a quid pro quo then legislatures would have an easier time regulating them on the grounds of avoiding corruption. Yet, "the trouble with these definitions," points out Edelman, "is that they cover a lot of everyday political activity that we don’t think of as corrupt." I refer you to the review for the details of his argument, but suffice it to say that I found his point fairly compelling.

Because a conception of corruption that is both broad and coherent appears to be elusive, Hasen, who wrote the book being reviewed, thinks that redefining the idea is the wrong approach. "The constitutionality of campaign finance laws," he writes, "should not turn on whether we can fit an argument about influence into the anticorruption box." He wants to return to the question of what is wrong with large donations and give a different answer entirely. Big money in politics does not offend our sensibilities because of the possibility of corruption, he argues. It does so because it provides an unmistakable example of inequality. If those who have more money have a greater say in influencing the positions of elected officials, that isn't inherently, philosophically any more corrupt than a given voting bloc determining policy through the force of its larger numbers. But the former case allows those with money to have a greater say than those who lack it. It violates our democratic sense that the political views of each person should be no more or less relevant than those of his/her fellow citizens.

I found this argument somewhat revelatory. It is intellectually satisfying and, to my mind, clearly correct. And it would allow for a result I personally favor, the limitation of large campaign contributions. Yet Hasen appears to believe that his own argument, even if compelling, is largely irrelevant to the real-world state of campaign-finance law. "Hasen has a wake-up call for his colleagues," writes Edelman. "All the theorizing in the world isn’t going to make Justice Anthony Kennedy, whose majority opinion in Citizens United accused the government of using 'censorship to control thought,' change his mind." The next part of the review was a little creepy, if only because I'm not caught up with my magazines. The issue I was reading was from January, well before the sudden and unexpected death of Justice Antonin Scalia. The prophecy in Edelman's words was unsettling. "The uneasy Supreme Court consensus," he wrote, "allowing limits on direct contributions and corporate and union spending lasted until 2006, when Justice Sandra Day O’Connor retired and was replaced with Justice Samuel Alito. If one of the Court’s conservatives retires (or dies, macabre as that sounds) during a Democratic presidency, the 5-4 balance in favor of restrictions should swing the other way." Thus the future of campaign finance law hinges, to a large degree, on the next presidential election.

Hasen suggests, however, that even a more liberal court will be limited in its ability to place significant restrictions on campaign donations by the corruption framework. Thus those who desire to limit the role of money in politics need to be breaking up the intellectual ground by developing and advancing a commitment to electoral equality as the rationale for such restrictions. “Reformers,” he writes, “must demonstrate to the new Court that reasonable limits on corporate and even individual spending, when coupled with generous public financing, would not squelch competition or inhibit robust debate,” and persuade the justices “to publicly accept a political equality interest that could justify reasonable campaign finance regulation, consistent with progressive values.”

Hasens' book (which, again, I have not read) sounds like an important one. Edelman's review alone, however, is quite thought-provoking. I would recommend giving it a look.