It was shocking when Sarah Palin accused the Democrats of being corporatists. Are Democratic politicians influenced to make decisions based on corporate lobbing and money? The pre-‘Citizens United’ answer was yes, as for Republican politicians as well. However, this is no longer true, post-‘Citizens United’. With the Citizens United, Supreme Court decision, corporations are people too. Don’t corporations have the right to influence politicians just as private individuals? This is the decision of the Supreme Court. Did the Supreme Court legalize corporatism? If you do not believe that they did with the Citizens United decision then why would you accuse the Democrats of corporatism? Democrats are participating in free speech. If corporations are people too, they have the right to free speech just like anyone else. Just because they can speak with more money than most individuals, you cannot hold that against them. We all know that politicians and the electorate are not influenced by money, right? The politician and the electorate are free market agents that can make their own choice regardless of money, right? Technically, corporatism as envisioned by its most ardent fascist founder is:

“Fascism should more properly be called corporatism because it is the merger of state and corporate power.” – Benito Mussolini.

Also:

“Fascism: a system of government that exercises a dictatorship of the extreme right, typically through the merging of state and business leadership, together with belligerent nationalism.” American Heritage Dictionary (Houghton Mifflin Company, 1983)

In a corporate merger there is always a controlling party, typically a parent company. In the common conception of modern corporatism, I suppose the controlling party would be the corporate side of the equation although in historical corporatism it was the fascist government. In any case, without a contract specifying explicitly that the corporation is the controlling corporate partner in corporatism, the Supreme Court has made the common thinking about corporatism obsolete. Now, the law of the land has deemed the common understanding of corporatism to be the right to ‘free speech’. It seems that the Supreme Court decision has been critical for helping us see the kinder, gentler side of corporate ‘speech’ as opposed to the fascist side of corporatism. Therefore, we should look at the actual decision (already referenced above).

First, some background:

The Supreme Court overruled a previous Supreme Court decision in Austin v. Michigan Chamber of Commerce which prohibited corporations from using treasury money to support or oppose candidates in elections. The previous decision ruled that this prohibition did not violate the First and Fourteenth Amendments. In Citizens United the Supreme Court overruled the previous decision. [NOTE 1]

In Federal Election Commission v. Wisconsin Right to Life, INC., a corporation, Wisconsin Right to Life, challenged a Federal Elections Commission injunction that made it a federal crime for a corporation to use its general treasury funds to pay for any “electioneering communication”. The court ruled that the “speech at issue is not the “functional equivalent” of express campaign speech” because it did not advocate for a specific candidate. It did not make an “appeal to vote for or against a specific candidate” only “that a group of Senators was filibustering to delay and block federal judicial nominees and telling voters to contact Wisconsin Senators Feingold and Kohl to urge them to oppose the filibuster”.

The Decision:

“In January 2008, appellant Citizens United, a nonprofit corporation, released a documentary (hereinafter Hillary ) critical of then-Senator Hillary Clinton, a candidate for her party’s Presidential nomination.” [Citizens United]

Here are the main components of the decision with my comments:

Austin was overruled. Expenditures by corporations on political speech could not be limited. The Bush administration law, Section 203 of the Bipartisan Campaign Reform Act of 2002, was ruled unconstitutional.

“The court ruled “the First Amendment provides that “Congress shall make no law … abridging the freedom of speech,”” and that “prohibition on corporate independent expenditures is an outright ban on speech”.

Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion.”

This invalidates any common, informal form of corporatism. According to our government, the Supreme Court, the line between corporate free speech and corporatism could be crossed with “compelling interest” that is “narrowly tailored to achieve that interest”. In other words, a breach would have to be an outright bribe (“quid pro quo corruption”) or a contract assigning control of the government to a corporation. Short of this, any other corporate activity in the political arena is now protected as free speech. Citizens United has effectively redefined corporatism to its most formal meaning.

In Section 2.c.1 of the ruling the court went on to suggest, “The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech” and this would be violated if government were “to ban political speech because the speaker is an association with a corporate form”. The government cannot discriminate on the basis of gender, religion and now, corporate affiliation. “Political speech is “indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation.””

Additionally, the First Amendment protections “do not depend on the speaker’s “financial ability to engage in public discussion””. Therefore, “Distinguishing wealthy individuals from corporations based on the latter’s special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech”. The wealthy cannot be discriminated against in free speech because they have money; neither can corporations. The “open marketplace” of ideas would not be open if advocates are discriminated against because they have money (or its corollary power). The court even went on to call restrictions on corporate involvement in politics “censorship”. [NOTE 2]

Conclusion:

Speaking for you, the court determined:

“this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.”

‘Influence’ is not corruption. Here again, corruption has lapsed into a more formal definition which obviously excludes influence (or influence peddling). The court even found that “Political speech is so ingrained in this country’s culture that speakers find ways around campaign finance laws.” so why have them? Murderers find ways around the law against murder so why have the law (but I digress)? Even more, there is no possibility for corruption with mere ‘influence’ no matter how strong the influence but the least little notion that a corporate contributor could suffer reprisal is enough for the court to sanction the right to not disclose where the ‘speech’ is coming from. The court found that contributors would not have to be disclosed “if a group could show a ” ‘reasonable probability’ ” that disclosing its contributors’ names would ” ‘subject them to threats, harassment, or reprisals from either Government officials or private parties”. In effect, the court has ruled that corporations can ‘speak’ and we do not have to know who is speaking.

In the Citizens United decision the natural antipathy previous generations, including Democrats and Republicans, had about corporatism and enacted into law was overruled. The court favored a much more formal definition of corporatism that made it the law of the land to evacuate any fuzzy notions of corporatism in favor of a very narrow and formal definition; everything else is fair game. Effectively the court has told us there is no corporatism in the United States because we have redefined corporatism. It is no consequence that every dictator redefines democracy to apply to their regime. Hitler did not exterminate ‘people’ (‘National Socialism’ was ‘socialism’ that only applied to real people). The real free market can solve all social ills.

Historically, anything can be justified by redefinition, appealing to the formal case. Academics have found this to be a very resourceful technique over the years. If corporatism can be redefined from the common understanding to a purely formal definition of a fascist form of government (which we are not by law), the previously understood common manifestations of corporatism can now be deemed ‘free speech’. Our government, the Supreme Court, has for all intents and purposes made the law of the land deny corporatism in the United States. It is ironic that the conservative decision would be ignored by folks like Sarah Palin (when it comes to Democrats at least) who insist there is corporatism in this country. You can’t have it both ways: Either we have corporatism in the United States or we have ‘free speech’. To play both sides is disingenuous.

 

 

 

[NOTE 1] It is interesting to note that public agencies are prohibited from taking political stands and contributing to political campaigns. Corporations are ‘subsidized’ by the public with a lower tax rate than most individuals who pay taxes. If corporations are now people too and protected under the individual’s right to free speech, shouldn’t they start paying individual income tax rates?

[NOTE 2] Free market fundamentalists should have no problem with the Citizens United decision. As the wealthy should not be penalized by the government for doing well, corporations should not be penalized for ‘speaking freely’. Influence and power have nothing to do with the government right?