Citizens United or Citizens Incorporated?

Reason magazine's December cover story is illustrated with pictures of two protesters: on the right, a presumed Tea Partier equating the Democratic leadership with Marx, Lenin and Stalin, and on the left, a woman whose sign reads, "Capitalism is failing. Socialism is the alternative." The cover headline declares, "You Are Now Free to Speak About Politics," then asks, "Why do some people fear a less restricted debate?" The implication from the onset is that the Supreme Court's controversial decision in the Citizens United case should be unobjectionable because it empowers both the bald, surly right-wing crank and the cute commie chick.

But as Jacob Sullum notes inside the magazine, in a reasonably fair-minded story that consults both advocates and enemies of campaign-finance regulation, Citizens United is reviled by the Democratic establishment, if not by the left as a whole, as a license for corporations to buy elections and politicians. Interestingly, Sullum never takes up the line of argument usually inferred as the basis of the Court's decision, that corporations have the right to political speech as a matter of legal "personhood." Instead, he adopts the broadest possible definition of "corporation" to argue, as one law professor puts it, that "everything is incorporated."

The over-the-top reactions to Citizens United reflect a view of corporations as giant, soulless automatons that are fine for producing goods and services in a regulated environment but bound to wreak havoc if let loose in the halls of political power. That view obscures the fact that corporations, no matter how large or profit-driven, are by definition associations of individuals who have joined together for a common purpose. It also misleadingly suggests that behemoths such as Wal-Mart and Exxon Mobil are typical corporations, when in fact the vast majority of the 6 million or so corporations registered in the United States are small businesses or nonprofits....Contrary to all the rhetoric about corporations drowning out the voice of the people, corporations are the voice of the people. [emphasis in original]

Sullum's article traces the evolution of law regarding campaign donations from 1947, when Congress banned spending "in connection with" federal elections by unions and corporations, to Citizens United. The major precedent standing in the way of the Roberts Court, Sullum explains, was the 1990 Austin v. Michigan Chamber of Commerce decision, which affirmed a ban on corporate-funded candidate advertising as a check on "the corrosive and distorting effects of immense aggregations of wealth." During oral arguments in Citizens United, inconsistencies in Austin's reasoning were exposed, since there were no restrictions on spending by super-rich individuals who could spend far more than the allegedly dangerous corporations. The oral arguments, as reported by Sullum, were a dismal performance on the part of the Obama administration's lawyers, who seemed to endorse a government power to ban "express advocacy" propaganda from all media, including books or pamphlets, depending on who addressed the Court. Throughout Sullum's account, Democrats and their agents are open to charges of unfairness and bias against business. Their attempt to trump Citizens United with the DISCLOSE Act seems self-evidently unfair, since the bill, as described by Sullum, restricts corporations with foreign investors but not unions that are avowedly international, and restricts corporations with government contracts but not public employee unions. If you can support the regulation of political advertising without supporting the Democratic party, you should be able to criticize Democratic legislation without repudiating the ideal of levelling the playing field.

Sullum interviews the head of Common Cause, who tells him that without restrictions "rogue corporations" could intimidate legislators merely by threatening to finance an opponent. That idea is challenged by representatives of the Center for Competitive Politics, one of whom tells Sullum that a politician so threatened could "score points with voters" simply by publicizing the threat. The Common Cause man scoffs at that notion -- and he may be right to do so. He doesn't explain why he scoffs, but we might assume that the theoretical politician is not just interested in fending off the corporate threat, but also wants that corporate money for himself.

In any event, Sullum downplays the likelihood of corporate intimidation. The Center for Competitive Politics asserts that the Fortune 500 would "much rather spend their money lobbying" than on buying risky political ads. Target got into trouble recently, for instance, for donating money to a Minnesota organization that ran ads against gay marriage. Threats of boycotts, presumably, cowed the Target CEO into apologizing for its donation. Emphasizing the risk to big companies underscores one of Sullum's larger points, that most "corporate" political spending is done by small businesses, not the "too big to fail" crowd whom many people suspect. This example seems to confirm the CCP's point that publicity deters intimidation, but it doesn't address an important concern ignored by Sullum. The problem of the moment isn't so much politicians' dependence on any clique of large corporations or billionaires, but their dependence upon fundraising itself. Almost unconsciously, however, Sullum invites readers to consider the influx of corporate-funded political advertising as an alternative to party-funded advertising, not to mention the state-funded advertising option which Sullum, as a libertarian, distrusts. Perhaps the ideal under the new conditions is a state of affairs in which the political parties don't have to spend so much time fundraising as long as they can trust sympathizers to buy ads for them. That would leave elected officials free to do the work we hired them for. But to the extent that the major parties have become fundraising machines, they may be jealous of their prerogatives. Partisans may oppose unrestricted corporate spending because it sends money through other channels that might otherwise go to them.

Sullum shows his libertarian colors towards the end, when he challenges the idea that regulations on campaign spending are necessary to "restore trust in government." That object, he writes, "is not as uncontroversial a proposition" as its proponents think, "Surely there is such a thing as too much faith in government, and people of different political persuasions are bound to draw that line in different places." The CCP observes that "there's a problem with the basic idea that people should really trust their government. Our country was founded on people not trusting the government." While you wrestle with that paradox, just accept that libertarians will always err on the side of dissent, even if the business class isn't usually identified with dissent in the public mind.

While the fundraising racket requires reform, our opinions about spending are probably skewed by Bipolarchy thinking. Citizens United, after all, is a group that made a film against Hillary Clinton but was barred from making it available for on-demand viewing on cable TV. It seems to me that people have as much right to denounce Clinton as they would to denounce anyone they deem a public menace, in print, on film or in whatever medium they choose. That right should extend to urging people not to vote for her, but it becomes problematic once people presume that voting against Clinton means voting for someone -- whether a conservative Republican, as Citizens United would have preferred, or Barack Obama, who was the immediate option during the time in question. Denunciation shouldn't be equated automatically with electioneering. I can say, "Don't vote for Republicans today" without being accused of advocating for Democrats, as long as other options exist. In any event, even if Democrats are the only other option I should be able to speak out against Republicans as a matter of conscience in whatever medium I please without being accused of compromising the electoral process. On the same ground, I should be able to argue that fundraising plays too large a role in elections without being accused of favoring the unquestioned rule of a Democratic-liberal nomenklatura. Because we imagine the political scales evenly balanced between two great parties, we're tempted to see any intervention as disrupting a balance wrongly seen as both natural and necessary. To the extent that libertarians in America suffer from bipolarchy consciousness (state vs. "freedom") they're no more likely to view the donation-fundraising question objectively than anyone else. Nevertheless, Sullum has made a good stab at a substantial, informative and challenging account that's worth reading to anyone interested in the question.