CORPORATE CAMPAIGN CASH AT THE CATERPILLAR STAGE (Not fuzzy at all)

Do you think you can understand butterflies perfectly well without knowing caterpillars? Corporate political contributions had a caterpillar stage; I’m guessing you won’t even recognize it. Here’s a snippet:

No corporation doing business in this state, shall pay or contribute, or offer, consent or agree to pay or contribute, directly or indirectly, any money, property, free service of its officers or employees or thing of value to any political party, organization, committee or individual for any political purpose whatsoever, or for the purpose of influencing legislation of any kind, or to promote or defeat the candidacy of any person for nomination, appointment or election to any political office.

Whoever wrote that thought corporate money has no business mixing with politics, with elections, with the political process, or with democracy. That’s deep common sense. The excerpt is from a 1905 Wisconsin law, and many states passed similar ones. But if you suggest to people that it should be law today, they laugh in your face. Then re-direct you to some lame slogan-y substitute project that mainstream foundations will fund. (You know who you are.)

The laughter is from people who have lost, or never known (or maybe are afraid of), the clear vision of a transparent and democratic political process expressed in the quote. We probably won’t achieve it by next Tuesday morning, but without a goal with some there there, we fritter away our activism on inconsequential side shows. Compared to the “No corporation…” approach, McCain-Feingold and the Michigan law voided by the Citizens United case are embarrassing.

That inherently self-limiting, self-censoring perspective (bad selfies) means that even reformers’ wildest goals fail to question the assumptions that today pass for common knowledge—and that must be changed before we can begin to work toward a democratic system here.

THE BUTTERFLY STAGE: MONEY = SPEECH

For people who don’t think it significant that butterflies come from caterpillars, a counter-narrative has replaced the deep common sense of the 1905 law. It’s often abbreviated as money equals speech, an equation brought to us by the Supreme Court when it officially legalized the role of corporate money in elections (Buckley v. Valeo, 1976). It goes something like this: in today’s world, you need money to make your views known, so spending money in a political campaign is a First Amendment right. (Among other things, this view does not distinguish between human beings and corporate persons, but you can read about that here.)

The PAC (political action committee) was invented as part of a liberal “reform,” the Federal Election Campaign Act (FECA 1971, 1974). The wind at its back was a backlash against CREEP, Nixon’s Committee to Re-Elect the President. If you’re trying to place this culturally, AM radio stations were cycling “Rhinestone Cowboy” hourly.

Under the FECA, corporate political money was heavily regulated, but legal. It was just a matter of time (and not much time, at that) before FECAL CREEP set in: corporate lawyers and lobbyists learned a new kind of bundling, while continuing to chip away at the regs through relentless piecemeal legislation and judicial monkey-wrenching. Today there is so much other legal money flying around, the PAC has a much reduced role. Even the SuperPac has been largely superseded by further limits on the limits of so-called “soft money.” Citizens United is but one step in this process.

WHAT’S GOING ON IN THAT CHRYSALIS? AFRAID TO LOOK?

No matter how long and hard you stare at a butterfly, there’s neither caterpillar nor chrysalis within. You must go OUTSIDE the butterfly—into its pre-history, so to speak—to see the present for what it is. Call it phenology, or history, or just commonplace observation; there’s no shortcut.

In the phenology of corporate campaign cash, many deep-common-sense chinks had to be eased out of place before a seemingly lobotomized electorate would be so dazzled by the butterfly stage that they would stop imagining what democracy might look like. Here’s a sampling of the crud that corporate engines pumped in to replace the 1905 vision.

1. Corporations had to be accepted as constitutional “persons,” with many of the rights of human beings, despite the fact that corporations are creations of government. This started as early as the late 1880s in a series of Supreme Court cases often referred to today as “corporate personhood” cases.

2. The purpose of (government-created) corporations had to be expanded from a specific legislatively established public purpose to essentially “anything you can think of.” The open-ended corporate purpose of today was mostly legally “settled” by the time of the Great Depression.

3. The idea of corporations interfering with the democratic process by “donating” had to be established. Corporate representative struggled for decades to get legal permission to donate to charities, a desire no doubt inspired by the powerful nationwide anti-chain store movement of the early twentieth century. Corporations got this power from the IRS in the mid-1930s (another reform era), and it was confirmed judicially only in 1953.

4. People had to accept that Money = Speech, Corporations are constitutional persons, and therefore corporations could legally “speak” by giving money to campaigns. Implicit in this is that (golly) corporations have opinions. (Of course, they don’t do a straw poll of employees).

5. In and around all of this is the notion that somehow corporations exist on their own in some sense, and not just as an entities created by governments to serve a specific public purpose.

6. The real biggie here is not just that over generations, fewer and fewer decisions were left to locals—but that this, uh, trend, has not been challenged more consistently. (And before you even complete that thought, there is much more to local power than small racist elites running so-called governments like plantations.) A long list of suspects–federal preemption, “efficiency,” a domestic “free trade” agenda, hugely increased power to the federal court system, a growing conglomeration of Borgesian fantasies clothed as legal doctrines, a misplaced notion that locals are usually yokels–has contributed to the fact that local power is at a low ebb.

It is these “facts o’ life,” grandfathered in by ignorance and complacency, that need to be disputed, rejected, and replaced if we expect to achieve substantial political reform. Add them to your to-do list. Or else…

THE POST-BUTTERFLY STAGE IF WE DON’T INTERVENE

Maybe today’s corporate campaign cash universe is on the verge of transformation to another stage. Like…sending out catalogues for ordering “take-out” legislators. It could be by the year, the term, or even for life. Or maybe, short-term store specials where you can just buy them for a single vote or issue. (Why pay for votes on endangered species if you only care about corporate tax rates?) More possibilities—economies of scale if you want to buy a dozen legislators instead of just one, maybe a banker’s dozen. Coupons! (Half off before the Iowa caucuses!) Buy one, get one free! Generic politicians versus name brands, frequent flier miles converted into committee votes, Don Draper, where are you now? (Apologies to reader for using more than my lifetime allotment of exclamation points.)

* * *

The 1905 law was a STATE LAW, and was still on the books, with lessened penalties, until the early 1970s when the FEC Act—a liberal reform–effectively nullified it.

All of today’s political butterflies had a caterpillar stage. This stuff is legally “settled” only because not enough people question it.

* * *

APOLOGY TO BUTTERFLIES

I apologize to butterflies, their precursors and successors, and all other associated hangers-on, for bringing them into this discussion. They deserve better. The sausage-making metaphor long applied to legislation is bad enough. I don’t know what got into me. I’ll blame unexpected drug interactions in the wake of the Republican debates for my shameful insectoid metamorphosis analogy here.
Coming soon…were the pyramids built to store grain or…Syrians?

Is Citizens United Focus a Good Use of Our Time? (2014)

Such a comforting thought—that overturning a single court case can resolve some of society’s biggest problems. With Citizens United, the idea seems to be that huge strides could be made by reversing it, thereby “getting the money out of” elections. It’s our current version of the “silver bullet” myth of old.

Kind of like thinking that bee pollen will cure your cancer. Now, I’m not anti-bee pollen, or anti-herbal remedies, but the human body is a bodaciously complicated place. To think that adding a single substance to your diet (while changing nothing else) will cure a systemic disease is a bit simplistic. The body politic is also complex, as is the problem of how to make it democratic.

As far as court cases are concerned, there may be one or two good prospects for thinking that a reversal might overhaul society. Plessy v. Ferguson, the case that enshrined “separate but equal,” comes to mind, and its effective overturning in 1954 was a huge victory.

I know Plessy, and I know Citizens United, and Citizens United is no Plessy v. Ferguson. How do I know? Because I’ve read Citizens United, and the case it came from, and the Michigan law that was at issue. (I’ve also read Buckley v. Valeo, but we won’t go there now).

Do you have to do that? No, because you can read my very short take on it here. Keywords: money = speech, corporate “personhood,” and McCain-Feingold. Citizens United activism, far from being a silver bullet, is more like a lead weight. I think it actually distracts us from underlying issues.

While I’m at it, there’s a related issue that I’d like to raise. You could gloss it as Campaign Reform (the term I prefer) versus Campaign Finance Reform. Here’s the heart of it: in today’s world, except in a few cases of very low-level public offices, no one can get elected unless they have at least a comfortable middle-class security blanket, and probably much more.

That flat-out eliminates working class or low -income people from the pool of possible elected officials. Is it any wonder that a huge percent of our elected officials are lawyers, or other businesspeople or professionals with secure (to say the least) finances? Am I the only one who would like to see, uh, people of moderate income, low income, and real laborers elected to office once in a while?

Cutting to the point: If we’re serious about having elected officials that come anywhere close to representing the diversity of our society, then we need to do much more than tweak a few of the rules for financing elections. We need to completely rethink how we design the election process. Hence, instead of merely playing around with campaign finance reform, we need to face campaign reform—a bodacious redesign of the campaign idea.

With the help of others, notably labor historian Peter Kellman, I’ve tried to sketch out what this rethinking might involve. You can read it here. It’s not a blueprint, just an effort to broaden our thinking from a tarnished silver bullet, to a very difficult but much more promising path.

Thanks for reading this. Until the next rant, jam

Corporate “Personhood” Must Be Challenged (2009)

by Jane Anne Morris

When the “Hillary Clinton film” case is decided, headlines should declare, “Supreme Court affirms corporate personhood.” Instead, most media will call it a free speech decision. “First Amendment rights” will play the Trojan horse hauling corporate freight.

By first putting human beings and corporations into one basket labeled “things that have constitutional rights,” and then arguing about what “free speech” means, the Supreme Court has pitted the likes of the American Civil Liberties Union against advocates of campaign finance reform.

In one corner, arguing against limits on “speech,” we find Citizens United Inc. (the right-wing, nonprofit corporation that produced the Hillary film), supported by the ACLU. In the opposite corner, arguing FOR limits on “speech,” the Federal Election Commission and an assortment of groups supporting campaign finance laws.

Must we limit speech in order to have free and fair elections? Or must we accept corporation-dominated political debate in order to preserve free speech?

This false dilemma disappears if we reject corporate personhood – the idea that corporations have constitutional rights. Limiting corporate “speech” is not a constitutional infringement if corporations are not “persons” under the Constitution.

Corporate personhood encourages people to forget that every corporation is literally created by legislatures. Corporations of all kinds receive grants of power and privilege from the state; that’s why they incorporate. In the Citizens United Inc. case, the Clements amicus brief (on the FEC side) asks, “If the people’s elected representatives create legal structures for economic, charitable or other purposes, are they barred from preventing misuse of those structures for non-permitted purposes, such as political activity?”

Admitting the legal fiction of the corporation into the “rights” club has further consequences. With human beings and corporations joined at the hip in the body of constitutional law, the fruit of each people’s victory in strengthening or claiming a constitutional right is plucked up by corporate lawyers and used to defend corporations against the governments that created them.

That has been happening since the late 19th century, when the Supreme Court awarded the granddaddy of all corporate constitutional rights (equal protection and due process under the 14th Amendment) to railroad corporations.

In a famous Supreme Court dissent (1938), Justice Hugo Black ridiculed the justices’ grant of corporate personhood, and recounted the real function of the 14th Amendment during the first half-century after its adoption. Hint: It had little to do with protecting the rights of African-Americans, women or Native Americans.

Among Supreme Court cases about the 1868 amendment, Black wrote, “Less than one-half of 1 percent invoked it in protection of the Negro race, and more than 50 percent asked that its benefits be extended to corporations.” With corporations on the personhood wagon, rights that we think are protecting human beings are instead protecting corporations against the government.

In the current case, the biggest hope for some and fear for others is that the court will overrule Austin v. Michigan Chamber of Commerce, a 1990 case that preserved a scrap of state power to regulate corporate “political speech.” The widely touted “victory” was that the Supreme Court allowed Michigan to prohibit one kind of nonprofit corporation from using its monies for certain kinds of political speech.

Meanwhile, the Austin case accepts that money equals speech (following the Supreme Court’s 1976 Valeo decision), that corporations can spend treasury funds on initiatives and referendums, and that political action committees are legal and constitutional. But there’s more. Austin affirms that corporations are “persons” with constitutional rights, and that they have First Amendment rights, and equal protection rights.

Despite the hype and flutter around it, Citizens United Inc. v. FEC is not the big showdown about campaign finance reform. Whether the Supreme Court upholds the FEC and the Michigan law, or favors Citizens United Inc. and overrules Austin, corporate personhood will have won again.

Just as the single-payer option has been suppressed in the national health care debate, corporate personhood is all but ignored in discussions of campaign finance reform. Perhaps if “corporate personhood” made it into more headlines, we could shoo it out of the Trojan horse where it has obfuscated free speech and equal rights issues for too long.

******************

Corporate anthropologist and Madison resident Jane Anne Morris’ recent book, “Gaveling Down the Rabble: How ‘Free Trade’ Is Stealing Our Democracy” (Apex Press, 2008) is cited in an amicus brief filed in support of the Federal Election Commission in this case.

Originally published in the (Madison) Capital Times, Oct. 9, 2014.

America Needs A Law Prohibiting Corporate Donations (1996)

by Jane Anne Morris

Bribery makes the discerning man blind
and the just man give a crooked answer.
(Exodus 23:8)

Corporate civic, charitable, and educational “donations” of all kinds should be banned because they strangle open public debate, and contribute to the corporate colonization of our culture. Life-or-death environmental issues are obscured, distorted, and trivialized by this waste stream of corporate dollars.

“Companies praised for making world better.”1 What a headline. A PR person’s dream.

The article goes on to name names. One corporation (soft drinks) helps minorities and women; another (soap) donated more than half a million dollars for projects like buying a dance floor for an arts school; a third corporation (shoes) teaches young people to read and clean up trashy lots; yet another (photography) has an AIDS education program; a big pharmaceuticals corporation is helping preserve Central American rain forests. All five corporations are recipients of America’s Corporate Conscience Awards.

But the Superbowl ring of PR coups would go to another corporation that made a $5 million donation to preserve tiger habitat. It’s not every day that a corporation can bask in good vibes like those that radiate from the newspaper article entitled simply, “Exxon, friend of tigers.”2

Media corporations constantly remind us of corporate “largesse” to everything from art museums to zoos, child care programs to senior citizens’ conferences, war veterans to peace monuments.

With all this giving and giving and giving, why isn’t the world a better place than it is?

When there’s an accident at the plant, or a conflict between management and labor, or a request for yet another corporate tax break, or a dispute about environmental hazards — who will speak out against the corporation?

Proponents of logical and overdue societal change are too often paralyzed by the fear that if they speak out, they will be left high and dry as corporate donation policies shift to favor more pliant constituencies. Grassroots activists — many whose issues have not been blessed as showcase causes by national or mainstream groups — run into this whenever they try to build support and make alliances. People who are even partly dependent on corporations are hesitant to rock the boat.

It seems that they have us by the pigtails, so to speak.

Corporate leaders are not unaware of the effect of a well-aimed sprinkling of corporate donations. Read any management textbook and you will see how it coaches would-be corporate officers to shamelessly court community support and pre-empt citizen criticism. Or, glance through the excellent Toxic Sludge Is Good For You! by John Stauber and Sheldon Rampton3 for a detailed analysis of how corporate PR specialists manipulate their public personas.

We have succumbed to a Good Cop-Bad Cop routine where the government is the Bad Cop and corporations always play Good Cop. The government collects taxes and enforces regulations: Bad Cop. Then the corporations step in with violin music, sponsoring nature walks for the mentally retarded, and awarding plaques to conscientious recyclers. Obviously, Good Cops.

Back at precinct headquarters we would learn that government enforcement of corporation operations is lax to nonexistent, and that corporation tax rates are unconscionably low in view of their real income. This being the case, corporation expenditures for good deeds are a pittance that discombobulates the public’s ability to take a critical stance.

For a historic view of how corporations fought for and won the right to contribute freely to community coffers, we can review court cases in which corporate lawyers eloquently pleaded their case.

Contrasted with corporations’ never-ending struggle to pay low (or no) taxes, deny workers their constitutional rights, reduce wages and benefits, cut corners on health and environmental standards, and wring financial “incentives” from municipal governments, the history of their pleas to be allowed to make charitable and civic donations makes interesting reading indeed.

We the People, acting through legislatures, once prohibited corporations from doing anything not specifically allowed in their charters.4 In fact, if you read back to the early corporate charters granted by your state, you will find to your amazement that they were set up to address a specific public need. Further, these corporations were to carry out their activities under the supervision of the legislature on penalty of charter revocation if their directors stepped out of line.5 The prohibition against exceeding their chartered purpose included prohibiting donating money or things of value. It was intended to discourage two things: the excessive or inappropriate influence of corporations on public policy, and the waste of stockholder resources.

Only in 1935 did Congress begin allowing corporations a tax deduction for charitable contributions.6 But until the 1950s, a corporation’s right to donate to this and that at will was not firmly established.

In a 1953 case widely accepted as the final word on the matter, a New Jersey fire hydrant manufacturing corporation had decided to donate $1500 to Princeton University (another corporation).7 Several stockholders objected to this dissipation of their assets, and sued. Testimonials from the President of Princeton University and a former Chairman of the Board of U.S. Steel eloquently pleaded for a corporation’s right to be “socially responsible,” as they put it, and help out community institutions. It was also noted that closer to the bottom line, such contributions benefited the corporation indirectly by improving public relations and gaining favorable publicity.

In its ruling, the New Jersey Supreme Court set aside stockholder complaints and commended corporations for their contributions to the general social and economic welfare.

Court cases like this one discussing the appropriateness of corporate donations do not fail to note large-scale changes occurring in the American economy.

One such change is the dramatic shift in wealth during the first half of this century from individuals to corporations, and a concurrent decline in the amount of charitable contributions coming from individuals. A second change noted is the increasing strain on government to provide for its citizens’ social, educational, and economic needs.

Corporations’ manipulation of elections, the legislative process, the regulatory agencies and the courts has led to both of these problems. And yet in an underappreciated irony of massive proportions, corporation representatives swept in to offer themselves as selfless saviors, dabbing charitable salve on the very social, economic, and environmental wounds that they both inflict and profit from.

In the nineteenth century corporations got their way through outright bribes of public officials. That’s why political contributions and other corporate donations were forbidden in many state corporation codes. But In the U.S.A. today, corporations use a kinder and gentler strategy. Since the 1950s, all state corporation codes contain an odd phrase specifically authorizing corporations to make civic, charitable, and other donations.8

The strategic use of corporate “donations” has so muddled the issues that face us today that rarely if ever is a public policy decision made on the basis of the merits of the issue at hand. Coupled with the impact of corporate political donations (made legal by means of PACs), the willingness of citizen groups and community organizations to accept corporate “donations” has made a mockery of the democratic process.

But in the end a bribe is a bribe is a bribe.

A legislative package designed to put an end to the corporate bribery that is so debilitating to our democratic process would include:

  1. A ban on all corporate donations.
  2. Expansion of tax breaks and other incentives for charitable and civic donations by individuals.

Other tax reforms, such as taxing individuals’ and corporations’ real income, would work well with these proposals.

Those who would predict the imminent collapse of civilization as we know it should such a ban (on corporate donations) be enacted should note three points.

  1. A law banning all corporate donations need not disrupt daily life rhythms. It could be designed to take effect gradually over, for example, a five-year period during which time a baseline corporate donation amount would be reduced by 20% annually. In this manner, recipients of such donations could plan alternate funding.
  2. This nation scraped by until the 1950s without the massive amounts of legalized corporate bribery that corporations want us to conclude we can’t survive without.
  3. If we taxed corporate income fairly, stopped throwing money at corporations through “incentives” and other surrenders to corporate extortion, and prevented corporations from ruining our environment (and making costly programs like Superfund necessary), we would not feel the need for corporate “charity.”

Corporate apologists will claim, as they have for over a century, that corporations have certain “rights,” including the “rights” to free speech, due process, and the like — in short the rights of persons. But corporations are instrumentalities set up by the sovereign people to perform specific functions. They no more have intrinsic rights than wheelbarrows do. A nation that has an ongoing legal debate on whether Mexicans are persons should ask itself why we don’t give a second thought to the idea that corporations have constitutional rights.

Is banning corporate donations a good idea? Try the ultimate test. Suggest it to a few corporate CEO’s and they will cringe and fight against it tooth and nail. It is a good idea, counterintuitive though it seems at first.

Corporate donations are a brilliant strategy to frustrate discussion of underlying issues. They work as a carrot to encourage simplistic and short-term decisionmaking, as a stick for retaliation, and as a careening cart that so churns up our social terrain that we can’t see a way out of the rut we are in. Too often we are left fighting each other over the scraps doled out by the Company (Corporation) Store.

Day care centers and art museums are things that citizens might choose to fund with taxes (from both individuals and corporations). If corporations paid their way through fair taxes and exemplary behavior, citizens would be able to use the democratic process to make such decisions in a rational manner.

Why should aid to a battered women’s shelter free corporations of the need to pay workers fairly? Why should corporations be allowed to pollute our air, land, and water because they support the Girl Scouts? Why should corporations pay less than their fair share of taxes because they give computers to the community college?

We the sovereign people set up corporations to serve public needs. We the sovereign people devised laws and regulations to direct corporate behavior. We the sovereign people do not ask for their charity, but demand their obedience.

We want corporations to gain the respect of communities in the old-fashioned way: we want them to earn it.

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(First published in Synthesis/Regeneration: A Magazine of Green Social Thought, Winter 1996; reprinted in Rachel’s Environment & Health Weekly #502, July 11, 1996; reprinted in Earth Island Journal, Fall 1996; reprinted in The Chronicle of Philanthropy, Jan. 9, 1997.)

Notes

(Citizens United) Court’s Campaign Money Ruling Is a Red Herring (2010)

by Jane Anne Morris

Before running off trying to counter the recent Supreme Court decision in Citizens United v. Federal Election Commission (FEC), we ought to sort out what this decision does and does not do.

The Citizens United decision does make our democracy theme park a little worse, the way having an atomic bomb dropped on your own house would be slightly worse than having it dropped on your neighbor’s. But despite dire claims that the decision is the nail in the coffin of our democracy, that it will shake the current election system to its core, and so on, the case changes very little of our current situation.
Continue reading “(Citizens United) Court’s Campaign Money Ruling Is a Red Herring (2010)”

Speaking Truth To Power About Campaign Reform (1998)

By Jane Anne Morris

This article was written around the time Maine and a few other states were considering “campaign finance reform” laws. The historical perspective, even in the aftermath of the Citizens United case, shows us how little has changed. Many of these issues have been discussed by Maine labor activist Peter Kellman, author of Building Unions: Past, Present and Future.

Introduction

The word “reform” has lost some of its luster lately. Remember regulatory “reform”? Health care “reform”? And then welfare “reform”?

As we stand today, up to our armpits in schemes for campaign finance “reform,” we need to make sure that our proposals are grounded in principles that we at least recognize. All the better if they are explicitly democratic.

A bit of history will provide some perspective on how “campaign finance reform” efforts came to assume their current form.

A generation ago public disgust at the way elections were run reached one of its periodic peaks.

That last big wave of “campaign finance reform” was set into motion by corruption at CREEP (the Committee to Re-Elect the President) during the Nixon Years. Responding to a public outcry, Congress passed the Federal Election Campaign Act (1971; amended 1974).

What washed ashore shortly thereafter were corporate PACs (political action committees) and the now-legendary Buckley v. Valeo (hereafter, Valeo) Supreme Court decision (1976). Conditions being optimal, the scum left behind at reform’s high water mark has ripened into the sleaze that is now rotting all around us.

Even more disturbing than the failure of the Watergate-era “reforms” to restore some sense of decency to our election process, is the growing evidence that we have learned very little in the last quarter century. What is the sense of making a mistake if you’re just going to repeat it?

Our democracy is going down the tubes and we are avidly arguing about precisely what formula corporate managers and the very wealthy must use to funnel millions of dollars to targeted candidates.

While corporate speech saturates the supposedly “public” airwaves, we’re debating about whether or not we dare to restrict independent expenditures. Nay, we’re debating about how to even define independent expenditures.

Meanwhile, we’re not confronting issues such as…

  • Is money speech?
  • Should a transnational corporation have the same rights as a human person to participate in the democratic process?
  • If this is a democracy then shouldn’t all citizens, regardless of their economic status, be equally able to run for office?

It may be another generation before as much momentum and outrage is again built up around this issue. It would be nice to leave a more democratic heritage than the seventies left us in the form of the FEC Act and the Valeo decision. That is possible only if we first understand the assumptions gently but insidiously folded in the FEC-Valeo package, now the “law of the land.”

Money and Speech

First, the issue of viewing money as a form of speech.

If you start out with “separate but equal,” you end up counting drinking fountains to measure equality. Today, starting with “money is speech,” we are doing little more than counting dollars to measure democracy. We’ve missed the point.

How did we come to such a state that we can talk about free speech only by talking about money?

The money equals speech equation derives from the Supreme Court’s 1976 Valeo decision. In a nutshell, in that decision the Court held that as far as campaign expenditures were concerned, money is speech. Therefore limits on expenditures were limits on free speech, which is a constitutional no-no unless “compelling” circumstances are demonstrated.

To complicate the picture further, the Court in Valeo also ruled that though spending money is free speech and cannot be limited (as the original FEC Act provided), donating money is a slightly different kind of free speech that can be limited.

So, while demand (expenditures) was unlimited, supply (contributions) was limited, thus creating a perfect setting for a search for creative “bundling” of contributions, the opening up of numerous “conduits” for funds, the use of “independent” expenditures, and the proliferation of other kinds of “soft money”(unregulated expenditures). And that is what happened.

The near unanimity of opinion concurring that money equals speech is striking. From Valeo:

“One of the points on which all Members of the Court agree is that money is essential for effective communication in a political campaign.” (J. Marshall, p. 288)

“[V]irtually all meaningful political communications in the modern setting involve the expenditure of money” (p. 11)

“[C]ontributions and expenditures are at the very core of political speech” By Appellants, 424 U.S. 15, Valeo

“[V]irtually every means of communicating ideas in today’s mass society requires the expenditure of money” (p. 19)

This assumption is echoed in today’s debate.

“Money in politics is not evil. It would be impossible to have good democracy without paying for candidates to talk with voters…”1

“Nobody is proposing to take money out of politics….The reform debate is about how to regulate the flow of money, not shut it off.”2

It was not always so.

In the early days of the First Amendment in this republic, all information and discussion was either by word of mouth — “live” — or by means of reading the printed word. Informal talks, handbills, newspapers, and songs were all part of the public debate. Much later, the air waves — radio and television — became available as media for communication.

Other changes occurred as well. The open market place at the crossroads was replaced by the shopping mall. Time once spent in public areas exchanging news and views is now spent in front of the blue glow of the television set. The meaning of free speech rights has been altered correspondingly. The First Amendment rights of human persons have been progressively restricted, primarily through a steady expansion of the concept of private property rights and an ever-growing laundry list of what the government may prohibit by sweeping it into the category of “public safety” laws.

What this means in practical terms is that a human person’s free speech rights are severely restricted in the workplace, at the shopping center, and on the street corner. But in these same contexts, First Amendment rights of corporate “persons,” as interpreted by the courts, are almost limitless. So as we human persons work and shop, we are bombarded by corporate “free speech” but may not exercise our own First Amendment rights much beyond asking where the bathroom is or what something costs.

From here on out the magic works by itself. You need money to be heard in the only places that matter; corporations have both First Amendment rights and ample funds; hence, only their views are heard. But any “person” (that means you the reader, or a transnational corporation) is equally free to take out a full-page advertisement in the New York Times, or buy a minute of air time for a half a million bucks.

There is a further twist. The air waves supposedly belong to the public, but our federal regulatory quagmire has leased them to private corporations for a song. These media corporations use them to make huge profits, partly by selling the public’s own air waves back to them through public financing of campaigns.

Free civic forums where people can speak truth and debate ideas without fear of harassment are almost nonexistent. Potential forums that remain (like the news media, malls and workplaces) are “private” property where free speech by human persons is either forbidden, severely limited, or costs money.

If the only way to speak freely and be heard is to pay the powerful for a forum, then speech is not free.

Corporations and First Amendment Rights

Now to the second issue that we are not debating: Should a corporation have the same rights as a human person to participate in the democratic process?

The absence of this issue from the current debate is disturbing. When we neglect to even question whether corporations should have the Constitutional rights of human persons, we are drifting far afield from any real sense of democracy.

The word democracy, it should not need to be pointed out, means rule by the people: self-rule, self-governance. It is one of the shameful aspects of our history that it took great ferment to establish (at least theoretically) that people means all human beings, and not just the wealthy white males who framed the Constitution. How is it then that corporations have for a century possessed the core Constitutional rights of natural persons? Shouldn’t we debate this, or at least mention it, before embedding corporations even more deeply in our political process?

The FEC Act, like most discussions of “campaign finance reform,” does not distinguish between the rights of natural persons (legal parlance for human beings) and other entities such as corporations and committees.

How can we fail to distinguish people from corporations in laws about the democratic process itself? Our laws distinguish species of birds from each other; we have separate laws for all manner of fish and reptiles. Trees in your yard, trees on federal land, trees along rivers, and trees whose corporate “owners” are involved in leveraged buyouts of other corporations fall into different legal categories. But we lump people and corporations together as Constitutional “persons.”

People didn’t always think that corporations were entitled to Constitutional rights. Since the late nineteenth century the nine robed ones have been handing corporations many of the protections guaranteed to “persons” by the U.S. Constitution. But it wasn’t until the “reforms” of the 1970s that the idea that corporations had free speech “rights” began to be widely accepted.

If corporations have such Constitutional rights, perhaps they ought to vote and have their own named representatives in the halls of Congress. “The Chair recognizes the Senator from Union Carbide Corporation….from WMX Corporation….from the British East India Company……” and so on.

Democracy is not a matter of people negotiating with a corporation management team, or with an administrative board, or with a king. It is a matter of people talking with each other and deciding what their community, society and economy should look like. We should do it more often.

Imagine a law that prohibited corporations from engaging in any form of political activity. Imagine that breaking such a law was a felony, and that a corporation could be dissolved or kicked out of a state for disobeying it.

Wisconsin had such a law from 1905 until 1953. Check out this language. (Wis. Laws, Section 4479a. [Sec. 1, ch. 492, 1905]).

No corporation doing business in this state, shall pay or contribute, or offer, consent or agree to pay or contribute, directly or indirectly, any money, property, free service of its officers or employees or thing of value to any political party, organization, committee or individual for any political purpose whatsoever, or for the purpose of influencing legislation of any kind, or to promote or defeat the candidacy of any person for nomination, appointment or election to any political office.

The law was still on the books, with lessened penalties, until the early 1970s when the new improved FEC Act took effect.

It was not so long ago that corporations were not viewed as appropriate participants in elections. Democracy and free speech were for humans. Dare we think that way again? If we don’t speak truth to power about free speech, what grounds have we for democracy?

Who Should Be Able To Run?

And now the third issue that we seem unwilling to raise: If this is a democracy then shouldn’t all citizens, regardless of their economic status, be equally able to run for office?

Today, even with some “public funding” of campaigns, perhaps 80% of the population cannot even consider running for office. That we accept this as “normal” is a stinging indictment of how low our standards for measuring democracy have fallen.

Not surprisingly, most of the reasons why only a small percentage of Americans can even dream of running for office revolve around money. Who can take time off from work to campaign? Who is assured that after a campaign, or a term served, that they can return to a job? How many public offices provide only a token salary, thereby limiting those who can serve to the independently wealthy?

If we want free and fair elections, and not just campaign finance reform, we are going to have to think about and debate these issues.

Today’s Debate: Enter Maine

Against this historical and conceptual backdrop we can view current reform efforts through a distant mirror.

The recent upsurge of interest in what’s being termed “campaign finance reform” reflects people’s growing awareness that big corporations dominate our political process, and with it our economic and social lives. Corporations sip in our cup, they dip in our dish, they sit by our fire.3

If you said this only a few years ago, people called you a conspiracy theorist. Now they say either, “So what else is new?” or, “But there’s nothing we can do about it.”

All over the nation, people are trying to do something about it. Their efforts are termed “campaign finance reform” and many are hailing Maine’s new election law (the Maine Elections Act, passed by initiative in November 1996) as the pot of gold at the end of the campaign finance reform rainbow.

A cursory review of news clippings and editorials about the Maine Act speak of it as a “model,” as a “standard against which all other reform efforts are judged.” It is “far-reaching;” it is “revolutionary.” It “addresses nearly every problem that exists in the campaign world.” One commentator noted that the people of Maine had “reached for the stars.” Another stated flatly, “Maine is the future…We have to figure out how to do Maine everywhere.”

One would expect that such an initiative would represent a fearful threat to entrenched corporations in Maine, and nationwide. One would expect that such an initiative would be fought tooth and nail by the same powerful corporations that launched a successful media barrage to crush the anti-clearcutting initiative on the same ballot.

Instead, it was a real ho-hummer. There was no organized opposition to the Maine “campaign finance reform” initiative. According to Maine labor activist Peter Kellman, who followed the campaign closely and voted for the initiative in November, the only visible opposition was from the American Civil Liberties Union (ACLU).

(The ACLU evidently has embraced the money equals speech doctrine, and accepted the extension of Constitutional rights to corporate “persons.” Corporate donations and expenditures for political purposes thus appear as “free speech” issues.)

This great gaping corporate silence — remember how they handled Clinton’s “radical” health care plan — should be an alarm bell for us. Pretend you’re a CEO and see if you feel threatened by the Maine Act’s provisions.

The Maine Act was intentionally drafted to avoid challenging the Valeo decision.

  • It accepts the equation money equals speech.
  • It accepts the equivalence of human beings and corporations for most legal purposes relating to the mechanisms of democracy.
  • It does not address most of the obstacles preventing most people from running for office. That is, it’s not about democracy, it’s about money. As to how it would affect current campaigns, consider these points.
  • It does not prevent a wealthy candidate from using family or personal wealth to outspend a publicly financed opponent ten-to-one, or a thousand-to-one.
  • It does not prevent a corporation from setting up scores or thousands of PACs (political action committees) each of which can collect the maximum amount of money for a candidate.
  • It does not prevent dozens or hundreds of “independent” individuals or groups from spending unlimited amounts of money advocating a particular candidate or position.

The Maine Act is not only not about democracy, it’s not very much about money, as many so-called current “abuses” will continue.

What the Maine Act does do, however, under the guise of “public financing,” is to set up a system that collects money from the many, passes it quickly through the hands of the hopeful (candidates), into the coffers of the few (media corporations). Misleadingly termed “public financing,” this scheme is a redistribution of wealth in which we the people pay huge media corporations to allow us limited use of the airwaves we own.

For such a non-solution, scores of citizen organizations around the U.S. are receiving financial infusions from philanthropic foundations to pursue measures much like the Maine Act.

Many proponents of such “reform” admit that it’s “not perfect,” but assert that it’s the best we can do at this time. This “best” amounts to accepting the Valeo and FEC Act assumptions as the natural order of things. We say with a sigh….We live in an imperfect world. For reasons of money, only a small proportion of us can even think of running for office. Among those privileged few, campaigns are corrupt by any measure. But, we the people are severely limited in what we can do about it because of the Constitution. The best we can do is to limit money in campaigns enough to temper the corruption to tolerable levels but we certainly can’t do anything to chill corporate free speech.

The 1970s electoral “reforms” did not usher in an era of clean and open democratic elections by any means. It follows, then, that if we do want to work toward such a goal, we need to do something different.

If we expect to get beyond the tinkering stage in dealing with the campaign reform issue, we will have to face each of these three issues.

  • People can recognize and reject the profoundly anti-democratic equation of money and speech, and identify the root causes that make it seem to be “natural.”
  • People can reject the notion that persons and corporations are somehow legal or Constitutional equivalents, and that corporations have “rights” at all, other than those limited capacities specifically delegated to them by the sovereign people.
  • People can debate not campaign “finance” but campaigns themselves, and decide how we the people want to hold our elections and make public policy decisions.

Re-framing the Debate

A debate that confronts the fundamental issues underlying current proposals for “campaign finance reform” would begin by recognizing that we need wholesale election reform, not just campaign “finance” reform.

The authors of the Valeo decision stated that

“[I]n the free society ordained by our Constitution, it is not the government but the people …..who must retain control over the quantity and range of debate on public issues in a political campaign.” (p. 56)

If they meant all people, and not just the self-styled elites in power at the moment, we can agree with them.

If they meant human persons, and not corporate “persons”, then we can agree with them.

What we’re seeking here isn’t changing the laws of gravity or finding the fountain of youth. It’s self-governance, by all of the people. It is self-governance, in a context of the free flow of ideas and information, sparked by debate and discussion. And it is fairness — plain, ordinary garden-variety fairness, something that any child can detect.

We seek the “unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” (Valeo court quoting NYT v. Sullivan, quoting Assoc. Press v. U.S. (1945)) Obviously this is not possible where corporations dominate the election process and election opportunities are not equal for all.

Chances are that we won’t achieve this goal by next year’s elections, but if we can’t even imagine it, we’ll never achieve it. The word campaign comes from the word for open, level field, and that’s what we’re after.

We can start with six basic democratic principles.

  1. Free speech is a prerequisite for democracy.
  2. Money is not speech.

    Participation in the democratic process should not in any way or to any degree be dependent on money. (Note: There is a move afoot to reverse the Valeo decision, but on grounds of “compelling” government interest, as opposed to a refutation of the money = speech equation.)

  3. Natural persons (citizens – the demos of democracy) should be distinguished from corporations in all laws regarding the political process.

    Since democracy is about people, corporations should not have First Amendment rights. (Note: In view of the fact that the legal term corporation covers municipalities, many environmental groups, media corporations, corporate trade associations, some Native American tribes, some unions, and transnational corporations, among other entities, obviously some fine-tuning is needed here. But there are ways of handling this issue so as to avoid jeopardizing the First Amendment rights of human persons to associate.)

  4. Public forums (such as the air waves, our newspapers and magazines, our workplaces, malls and streetcorners) should be free from corporate control.
  5. Election provisions should be mandatory and apply to all.

    “Voluntary” programs should be avoided because they allow rich candidates to buy their way out of conditions imposed on lower and middle income candidates. (We can call it the Perot-Forbes Syndrome.)

  6. Under no circumstances should public money be paid to media corporations for use of the air waves that we already own.

Measures to apply these principles might include the following.

  • Prohibit all paid political advertisements on radio and television.
  • Use the public airwaves for debate and discussion of candidates, issues, and concerns. Don’t ask, tell. Corporations are legal fictions granted special powers in order to serve a public need. Corporations that fail to comply shall have their corporate charters or certificates of authority revoked.
  • Do not require monetary contributions to qualify a candidate for public financing or an issue to appear on a ballot. Signatures are enough. Current attempts to justify a dollar contribution to demonstrate “seriousness” or “commitment” parallel the arguments offered in previous eras in support of the poll tax, and the “property” requirements of 1789.
  • All newspapers, magazines, and other publications that are corporations — and therefore chartered to serve the public interest (as all corporations are) — shall devote (for example) 25% of their pages to political commentary from human persons, unedited and in the order received, during the (for instance) two months immediately preceding an election or referendum.
  • Workplaces, malls, and street corners should be made into free speech and free assembly zones. As a rule of thumb, any space where we “hear” corporate speech without asking for it should be a place where human persons can express their ideas freely, and have the right to hear others’ views, without fear of harassment or retribution.
  • Election opportunities should be the same for all, regardless of wealth. Provisons for time off during campaigns, the guarantee of a job to return to after an election or a term served, and a living wage for both candidates and elected officials will help remove the built-in advantages that now exist for wealthy persons who run for political office.

We are a long way from the “unfettered interchange of ideas” described as desirable in the Valeo decision. There is much to discuss, debate, work out, and experiment with. But if we fail on our first try, or succeed only partially, it will be because we spoke truth to power, and not because we worked only for measures that were “achievable” but changed little.

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“Speaking Truth to Power About Campaign Reform” (1998). Also printed in Defying Corporations, Defining Democracy.

Notes