Supreme Court may strangle our democracy by deregulating corporate contributions

In his excellent post of September 1, Doug Kendall, of the Constitutional Accountability Center, cites five reasons why the Citizens United Case, which seeks to overturn all restrictions on corporate campaign contributions, is truly momentous. If the court rules in favor of the plaintiffs, regulations going back as far as 1907, will be overturned on two fictions: that corporations are persons entitled to 2^nd Amendment freedom of speech rights and that large campaign contributions, in the form of money or advertizing, are free speech instead of bribery.

Ironically, but not surprisingly, the probable judicial activists who will overturn long standing laws and legal precedence are the “Strict Constitutionalists” (including Thomas, Alito and Roberts) as defined and appointed by Presidents Bush and Bush. Overturning existing laws will strongly favor the political fortunes of those serving corporate interests and the interests of the wealthy (primarily conservative Republicans like those to whom they owe their Supreme Court appointments) to the detriment of the rest of us. Since the issue wasn’t resolved in the last session when there were only 8 Justices, it may be that Justice Sonya Sotomayor is the swing vote. Let’s hope she doesn’t “go along to get along.”

In this post I’ll discuss some of the fatal flaws in the first legal fiction. My rebuttal to the second fiction is in my earlier post  Large Campaign Contributions are bribes; not free speech  , a criticism which applies equally to corporations, to individuals, to labor unions and to the political parties themselves. (Note the framers of the Constitution did not envision political parties; they saw how they operated in England and were opposed to them.)

Corporations are fictitious persons, temporary entities created and sustained by government regulations which enabled those of lesser wealth than the government to temporarily pool resources and to temporarily enjoy other monopolistic rights so that they could tackle major economic objectives such as developing trade with specific regions―like the East Indies― or in specific products― including sugar, coffee, slaves, canals and toll roads. That corporate fiction freed economic objectives and economic decisions from the religious and political constraints with which the Crown, and later Parliament, had to live. In return for this fiction, the government collected substantial taxes and duties from easily manageable sources of revenue.

By the way…those who truly believe in economic deregulation in the interest of a “free market” should be politicking for the dissolution of all corporate entities and all forms of fictitious intellectual property… including patents and copyrights. But I digress.

As I said, these fictitious persons were temporary with government charters (In England and in the United States) limited to 21 years. These term limits served two purposes, to keep these organizations subordinate to the government which created and sustained them, and/or to focus them on a large project which they could invest in, complete and earn a reasonable return in 21 years. A term limit gave a sense of urgency to enterprises, a sense that is totally missing in today’s corporate behemoths.

The corporate boards immediately began working on their governments to renew their charters for a second 21 years, eventually making renewal almost automatic and ultimately leading to our present infinite lifetimes for corporations.

When our Constitution was written there were few if any corporate entities and no banks operating within the United States, the British had seen to that since they realized how critical such entities were to economic development and Britain, as well as the leaders of the Southern States, wanted to keep the Colonies as sources of raw materials. Thus, the 2^nd Amendment could not have applied to the fictitious entities. Furthermore, those corporations and banks which were formed in the early years of our nation had 21 year charters. Retroactively applying 2^nd Amendment rights to the current massive pools of resources with unending lives to overturn longstanding laws is at best an exercise of judicial activism at its worst.

However there is an even greater danger in unleashing corporate funds on political campaigns.  Who speaks politically for the corporation: its top executives. However, for large companies the interests of the corporation and that of the top executives are not congruent. The corporation’s best interests involve long term issues, the executives (especially those with inflated salaries and huge bonuses) are interested in what enables them to keep sucking off the corporate tits, which includes deregulation and personal control of their Boards of Directors, not what is best for the corporation. It’s why, for example, executives at AIG bought the long term risks of credit default swaps (in AIG’s name) which fattened their bonuses while bankrupting the company. Had they cared about the company’s future, they wouldn’t have taken the sucker side of a sucker bet. These are the kinds of people who would control a flood of money that would completely corrupt our already fragile political process.

As Doug Kendall points out: in the 2007-2008 campaign, contributions to both parties totaled $1.5 billion, and during the same time period the 10 most profitable companies amassed $350 billion in profits… so that just these 10 CEOs could unleash sums of money on the democratic process that would swamp all the contributions of citizens and other special interest groups!
My point: The political ads taken out by corporations don’t speak for them, they are simply misuses of corporate resources to give executives a megaphone to bribe politicians for their personal objectives at no costs to themselves.

Retaining, and even strengthening restrictions on corporate campaign funds is a no brainer if democracy is to survive. But don’t take it for granted that’s what our Supreme Court will decide.