Justice Thomas’ Reasoning — Dangerous for Democracy
The normally closed Supreme Court opened a crack last week, as Clarence Thomas defended the 5-4 decision clearing away limits on corporate spending to influence elections.
“If 10 of you got together and decided to speak, just as a group,” he said, “you’d say you have First Amendment rights to speak and the First Amendment right of association.” And “if all of you formed a partnership,” it would be the same.
Then he asks rhetorically, “But what if you put yourself in corporate form?” He implies the answer would not change. “It’s wrong,” he argues, to make any distinction. The “ultimate precedent is the Constitution.”
But, Justice Thomas, democracy itself depends on our making distinctions about who can influence political decisions, as the Court has done for many decades. (What about the 1933 Hatch Act curtailing political activity by government employees?)
And the most critical distinctions?
If I speak out as a citizen, or join with others and decide “to speak, just as a group,” I am choosing to further democratic decision making by adding my voice. Democracy’s foundation is the belief that citizens are able to deliberate and choose what is best for society as a whole. And indeed Americans often vote with this goal foremost—voting what they think is right, not necessarily in their narrow self-interest.
But if I form a corporation, or own shares in one, my purpose is utterly different. Partly, I seek to shield myself against personal financial liability and to enjoy other legal advantages for financial gain. These very different purposes and protections are among the reasons a corporation is not a citizen, nor is it a group of citizens; and why it cannot vote or sit on a jury, for example.
How can democracy permit an entity that cannot itself vote to have the power to sway voters and power over what a candidate might dare to say without risking a billion-dollar backlash?
You argue the Constitution is the “ultimate precedent.” But the Constitution doesn’t mention corporations, at the time they didn’t exist as independent entities. Within a few decades many founders, including Thomas Jefferson began to see how corporate power could subvert democracy. “I hope [that] we shall crush in its birth the aristocracy of our monied corporations,” Jefferson said, “which dare already to challenge our government to a trial by strength and [to] bid defiance to the laws of our country.” It seems inconceivable that founders would approve the corporate influence in elections that you have just approved.
You suggest that the Supreme Court majority is expanding freedom and core democratic values.
The Court’s decision threatens my freedom to know that my purchases and investments don’t fund a corporation’s political speech to defeat my values. But this is the least of my freedoms lost.
The decision undermines my choice to be part of a democracy in which each of us can be heard, a voice not overwhelmed by entities whose resources rival those of whole nations, and whose interests lie not in a healthy democracy but in enhancing their markets. The Court’s decision also helps to deprive me of the freedom to choose among a range of political candidates far wider than those favored by our society’s vast concentrations of wealth. In a word, it deprives me of the very essence of democracy itself—effective voice and choice.
Citizens stunned by this assault on democracy are devising a range of response. Listening to them, Rep. Michael Capuano (D-MA), for example, is pursuing legislation to require broad consent by shareholders before a corporation can engage in political spending
Many Americans feel powerless in the face of such loss. We are not. One immediate step we can take right now step is to ensure passage of the bipartisan Fair Elections Now Act—S.752, H.R.1826. It establishes a workable system of small donations combined with voluntary public financing for congressional races. It builds on an approach that’s already proven itself in three states. (Watch this inspiring example of its impact.) The Fair Elections approach has not been blocked by the Supreme Court. While it can’t avert all the threats embodied in the Count’s decision, it enables a candidate to run for office without becoming beholden to corporate money.
That is huge.
So let’s not allow the Justices’ dangerous logic to undermine democratic decision making America needs now more than ever. We can commit to choosing elected leaders who grasp what we’ve lost and would seat justices eager to reclaim the long precedent shielding us from this travesty. Right now, we can press our representatives to support the Fair Elections Now Act. We can back the excellent work, for example, of Change Congress Now, YouStreet, and Publicampaign.org.