by Mark W. Tiedemann
I'd intended to do a piece about something
other than current politics, but the Supreme Court surprised me and I find
myself wishing to applaud their decision. They upheld the McCain-Feingold
campaign finance reform law.
How refreshing, in this money-drenched period, to hear something that says No to corporate power. Because that's what this is. Campaign finance reform is so important because corporations threaten to supplant elected government by virtue of their financial muscle and virtual immortality.
It's entirely understandable why corporate America thinks that money is the equivalent of speech. It's their language, after all. It's the only thing they understand. You have to translate all other languages into fiscalese before a board of directors can comprehend them. So when it was suggested that maybe campaign contributions have become a source of immense distortional power in public life, they of course recoiled at the suggestion. A violation of their first amendment rights, they claimed. A curtailment of speech.
Two things about that. The first is rather theoretical, but if you follow the thread of logic, it holds. In order to test that hypothesis, you have to ask if money is a universal form of speech. If, in fact, everyone uses it to express political opinion. You must then ask if without money the same opinions can be expressed. Then you have to ask that if money is necessary for a particular form of politic opinion, then do those without money suffer an infringement of their first amendment rights because they are effectively mute?
We limit speech. Speech is free in this country until it infringes someone else's freedoms or rights. Slander and liable are actionable--speech, yes, but not legal. No one seriously argues that the first amendment protects anyone from the consequences of either crime. That's an infringement of speech, of course. We accept it. Lying under certain circumstances--i.e. in a courtroom under oath--is also not protected under the first amendment. Incitement to riot is also controlled. So there is ample precedent for controlling specific forms of speech.
Speech itself, as an abstract concept, is not controlled. By changing context, even otherwise actionable forms of speech can still be deployed--say, as satire, or fiction, or editorial.
Besides, the framers of the constitution meant political speech. They left it intentionally vague, however, because they understood how any kind of speech can become political under the right circumstances--hence the legitimate defense of pornography, since prosecution of people for their private lives is certainly political, not to mention censorship as a means of controlling those private lives (and just to make the point most clearly, at the beginning of this century information about sex and birth control distributed by doctors for public health purposes was designated as pornography, which certainly had profound political consequences).
Money--or lack thereof--would seem to qualify therefore as something which becomes political under certain circumstances. Indeed it has, but not as speech. Which brings me to my second point about it.
Money paid to politicians has been traditionally considered bribery. Which is also illegal and actionable. Under the current byzantine system of political parties, the fact that dollars funnel through organizations more than to individual candidates is immaterial. The money sets up a de facto quid pro quo because it defines a constituency, often one that has more clout than voters. A given candidate owes the party for his or her election and the party owes the largest contributors. This must be, lest those contributors will go elsewhere next time.
And that's where the problem of corporate power becomes acute.
In this modern age, corporations are legally people. There are a number of legal reasons for this. The practice of designating them as such started in the 1890s, during the heyday of the Trusts, which gave rise to the Progressive campaign to bust them up and limit corporate power. I won't go into the reasons for corporate personhood. We live with it, it has become part of our public life. But it has had some annoying consequences.
The main problem with corporations is that they are not, despite the legal definition, A Person. Common sense tells us this, but when one suggests that they abide by the same laws as an individual, then the corporate person can go into court and demand rights--a demand fueled by far more money and resource than any Average Individual. We see the results of this in environmental disputes which pit a single landowner against a corporation.
The corporation as we know it has more of everything. Time, money, capacity. You as an individual cannot know everything--a corporation has a staff or several staffs of people who know everything collectively. You as an individual must stop work to eat and sleep. Corporations can deploy their employees in shifts, therefore functioning without the need to stop. Perhaps this sounds trivial, but over time it becomes a monstrous advantage.
But the worst part of all this is when the corporation declares itself a Citizen. "What's good for General Motors is good for the country," Sloan said back in the Fifties. No one really questioned it, because the corporation was seen as an American asset. It was a citizen, just like you and me, and bound by the same laws. Theoretically.
Not, however, bound by the same limits.
So when General Motors suddenly did things that were not good for the country, we ran smack dab into the difficulty of managing a huge system that pretended to be an individual in the eyes of the law and claimed citizenship along with you and I.
A corporate citizen is, in fact, more equal than you or I. If we as individuals dumped toxic waste into a local stream, there's no doubt we'd spend time in jail. How do you put a corporation in jail? Our lives would be interrupted to face the consequences of our actions. Corporations continue much as they were. A fine, maybe, but first the crime has to be proven, and often the corporation--through money and influence--can thwart that process.
Besides having comparatively unlimited resources, the corporation has one other advantage over people--potential immortality. A corporation has no natural lifespan. Given care and cleverness and enough resource, it can live for centuries. This bestows enormous advantage over mere humans.
These factors alone would seem to make it desirable that corporate involvement in politics be severely limited. But we now come to the central issue of this piece, which is
Is money speech? And if so, should the government do what it can to guarantee our access to it?
Not guarantee our opportunities to access, but guarantee access. Guarantee that everyone has it.
See, money can be hoarded. You can't really do that with speech. You can't take words out of circulation and hide them away so others can't have them. But money, you can.
Corporations can not only gather up large sums of money, they can act to limit what others have. They can dictate who gets it and who doesn't it. Not efficiently, mind you, because corporations compete, but it doesn't have to be done efficiently to have an awesome effect.
Money has a limited utility as well. It does not meet the requirement of speech because it communicates nothing. It is only useful for acquisition. When you give money to a politician, it tells the politician nothing. It merely acquires the politician.
Which brings us to the question of constituency. If a thousand people who can only raise ten dollars apiece contribute to a political campaign--that's ten thousand dollars--should not their voices be the more important than the single contributor who gives ten thousand dollars? Or ten individuals who give ten thousand apiece? A thousand voices, in a democracy, trumps ten voices. Yet it is the hundred thousand dollars that commands political loyalty. In actual speech, my words are the same words as those spoken by a millionaire--or a corporation (which really can't say anything, because the personhood of a corporation is not biological, but a legal fiction to smooth the way through certain ambiguities of public commerce and litigation). The same vocabulary is available to both of us and therefore offers an equivalence which money, by its nature, is designed to deny.
This is a silly argument--the only reason it hasn't been settled long ago is because those most vested in seeing it kept unsettled are those who are most aware that their argument is fallacious. Money is not speech. It cannot be speech. Not in a democracy, wherein equality before the law must be maintained regardless of social status or bank account.
McCain-Feingold doesn't go nearly far enough, but it's a good start. And it's nice to be able to see at least sometimes one of our governmental institutions exhibit the kind of common sense that often passes for wisdom.