cor·poc·ra·cy // (kôr-pkr-s)
n. pl. cor·poc·ra·cies1. A society dominated politically and economically by large corporations.
From Stuart Taylor, Jr. at National Journal Magazine:
For decades conservatives have accused liberal Supreme Court majorities of judicial activism, by which I mean sweeping aside democratically adopted laws and deeply rooted societal traditions to impose their own policy preferences based on highly debatable interpretations of the Constitution’s language and established meaning.
On Thursday, the five more conservative justices — and in particular Chief Justice John Roberts and Samuel Alito, who went well beyond anything they’ve said before — forfeited whatever high ground they once held in the judicial activism debate.
I refer, of course, to the hugely important 5-4 decision freeing all corporations and, by clear implication, labor unions to spend unlimited sums supporting or opposing federal candidates.
The majority’s sweeping and unprecedented interpretation of corporations’ First Amendment rights, written by Justice Anthony Kennedy and joined by Antonin Scalia and Clarence Thomas, as well as Roberts and Alito, wiped out federal laws dating back 63 years and two major precedents.
And while the Court’s green light for “independent expenditures” of corporate funds on elections left intact the ban on direct corporate contributions to candidates, it nonetheless risked increasing the already worrisome dependence of candidates on various forms of big-business and big-labor support.
This is not to join in liberal alarums that the decision in Citizens United v. Federal Election Commission will necessarily swamp federal elections under a deluge of corporate money. Nobody really knows how big a difference it will make. Corporate freedom to spend on elections does not seem to have had much impact in the 26 states that already allow it, perhaps because big businesses are wary of making enemies as well as friends. And union spending for Democrats will offset any Republican advantage in corporate spending.
All nine justices passed up an opportunity to carve out a pragmatic, principled exception to Congress’s overbroad 63-year-old ban on corporate spending on federal elections, an exception that could have amply protected Americans’ free speech rights without allowing big business executives to use other people’s money — that of shareholders — to buy politicians.
Specifically, the Court should have upheld the ban on election spending of shareholder funds by business corporations but allowed election spending by nonprofit ideological groups, such as the Sierra Club, the National Rifle Association, and the ACLU, whose members give them money precisely for the purpose of influencing governmental policies.
Kennedy’s majority opinion is utterly unconvincing in arguing that unleashing big business corporations to spend shareholder funds to support and oppose candidates is necessary to protect the rights of those shareholders and executives who wish to aggregate their money for such purposes.
As the dissenters point out, all corporations are free to create political action committees that can spend on elections as much money as they can collect from officers, shareholders, and others who choose to donate for that purpose. Corporations are also free to spend stockholder funds without limit on “issue ads” and on lobbying.
Kennedy also stresses that the main arguments adopted by the now-overruled precedents for banning corporate spending of shareholder funds on elections — that such spending involves “corruption” or “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form” — are unconvincing or problematic.
He’s right about that. But Kennedy all too cavalierly bats aside a far more compelling argument for banning corporate executives from spending shareholder funds on elections.
The money does not belong to the executives who decide how to spend it; corporate law allows them to spend it only to serve their companies’ parochial economic interests; and the vast majority of the individual shareholders to whom the money does belong have not chosen to spend it on elections and would in many cases disagree with the executives’ candidate preferences.
Most people own stock through mutual funds and retirement plans and don’t pay attention to election spending by individual companies of which they own tiny percentages. Why should a corporate executive or anyone else be allowed to pour other people’s money into political campaigns as though the shareholders wanted that done?
In this regard, the dissenters were quite right to suggest that in the majority’s distended view of corporate First Amendment rights, “multinational corporations controlled by foreigners” — who have no right to spend individually on elections — could spend unlimited sums on federal elections. The majority backhandedly acknowledged that this might be troublesome and then moved on.
I wrote in a September 19 column that “it would look a lot like judicial activism for the more conservative justices to ram through, for no good reason, a 5-4 decision smashing a cornerstone of campaign finance law; overruling precedents that date to 2003 and 1990; and brushing aside congressional concerns about corruption and its appearance — all in a case that does not even involve a business corporation.”
Now they’ve done it.