Bill Totten's Weblog

Sunday, March 21, 2010

The Case Against Corporate Speech

by Ralph Nader and Robert Weismann

The Wall Street Journal (February 11 2010) (February 16 2010)

Last month, by a vote of five to four, the US Supreme Court gave carte blanche to the world's largest corporations to spend unlimited sums of money to support or oppose candidates for elected office. Big Business domination of Washington and state capitals will now intensify.

The case of Citizens United portends dire consequences for the nation's constitutional premise of "we the people", not we the corporations. Our constitution, at its origins and through all of its amendments, makes no mention of corporate entities, only human beings and their government.

For 120 years, it was not Congress but the Supreme Court that expanded the definition of "persons" to include for-profit corporations for the purposes of applying constitutional protections. For thirty years, the court has granted First Amendment speech protections to corporations as "artificial persons".

But not until last month has the court declared that the First Amendment gives corporations the right to spend unlimited money to influence elections. The court majority, self-styled believers in precedent and judicial restraint, overturned two major Supreme Court decisions and reversed decades of campaign-finance laws aimed at preventing corporations from having undo influence over local, state and national elections.

Granted, existing campaign-finance rules have been inadequate. Regular news reports document how corporate spending debases elections and elected officials. But that doesn't mean things can't get worse. The court has challenged whatever social mores are left that view no-holds-barred corporate cash register politics as unseemly.

The disparities between individual contributions and available corporate dollars mock any pretense of equal justice under the law. A total of $5.2 billion from all sources was spent in the 2008 federal election cycle (which includes 2007 and 2008), according to the Center for Responsive Politics. For the same two-year period, ExxonMobil's profits were $85 billion. The top-selling drug, Pfizer's Lipitor, grossed $27 billion in sales during that time.

Such disparities invite corporations to spend whatever they believe necessary to further entrench the corporate state. The money they now spend will be used to reward friends and punish opponents.

Corporations know that money makes a big difference when it comes to blocking protections for workers, consumers and the environment. Wall Street, health insurance and drug companies, fossil fuel and nuclear power companies, and defense corporations have been hard at work defeating common-sense reforms that would make them more accountable.

Do we want more elected officials to believe that to challenge corporate agendas is to risk their career?

There is every reason to expect that there will be much more direct corporate electoral funding in the wake of Citizens United. Funneled without limit through trade associations and shadowy front groups able to run vicious attack ads without identifying their corporate patrons, such lucre will deter good candidates from running for office because they won't want to have anything to do with such dirty politics.

What can be done about this accelerating drift into the muck?

In the absence of a future court overturning Citizens United, the fundamental response should be a constitutional amendment. We must exclude all commercial corporations and other artificial commercial entities from participating in political activities. Such constitutional rights should be reserved for real people, including, of course, company employees, to enhance a government of, by and for the people.

Corporations are not humans. They do not vote. They should not be accorded a constitutional right to influence elections or public policies, especially given their enormous embedded privileges and immunities compared to real people.

While the arduous amendment process is underway, the progressive response to Citizens United rests with several legislative and administrative initiatives.

First, the Fair Elections Now Act in the House and Senate would provide candidates a base of funding to run viable campaigns without being indentured to corporate money. But these bills would not prevent corporations from overwhelming the public funding.

Second, a strong shareholder-protection policy should limit corporate political spending. This would require executives to get support from an absolute majority of their shareholders before spending any money on politics.

Third, as the nation's largest customer, the government could refuse, by statute or executive order, to contract with or provide subsidies, handouts and bailouts to any company that spends money directly in the electoral arena. This would help avoid corruption. No longer would Citigroup or General Motors, which were saved by taxpayers and are wards of Washington, be able to lobby as if they were stalwarts of sink-or-swim free enterprise.

As Justice John Paul Stevens, writing for the minority in Citizens United, demonstrated, the Framers did not intend for the First Amendment to confer protections on businesses beyond freedom of the press. The robust guarantees of the First Amendment are vital for real, live human beings, to ensure their expressive and democratic participative rights are protected. There can be no level playing field between the giant multinational corporations and individual citizens without such differential rights.

It is worth recalling that representative democracy is rule by the people. Corporations, first chartered into existence over 200 years ago by the states, were meant to be our servants, not our masters. Especially in the aftermath of Citizens United, it is time to right this relationship.


Mr Nader is a consumer advocate. Mr Weissman is president of Public Citizen.

Bill Totten


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