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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