Outcries against the Supreme Court’s Citizens United decision, extending corporations’ 1st Amendment rights, point to many advantages giving corporations the edge over natural persons: “Limited liability” protects company owners from personal responsibility for business debts; and corporations are virtually immortal — a big advantage. Mostly, though, critics point out the obvious: that a corporation’s resources — Exxon Mobil earns $1,300 per second — typically dwarf those of ordinary mortals.
But whatever one’s stand on “free speech rights” for corporations, what seems inarguable is that once the Court — notably in its 1976 Buckley v. Valeo decision — began conflating spending and speech corporations and the wealthiest among us have been the big winners. Their vast resources enable them to morph into ear-shattering bullhorns drowning out regular citizens.
And, from this thought, I’m compelled to ask the “tree falling in the forest” question: Do I still have free speech if no one even knows I’m speaking because a tiny minority of “corporate voices” can produce a cacophony so loud that it cancels out the sound of mine?
Put another way, without any recognition of a right to be heard, does our 1st Amendment lose its power to protect the interchange of ideas — foundational to democracy — and permit instead the transformation of public discourse into a one-way gusher from the most powerful?
Earlier Courts took this danger seriously. In 1969, for example, in a decision written by moderate justice Byron White, the Supreme Court noted in Red Lion Broadcasting Co. v. FCC that: “It is the purpose of the 1st Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market...”
To me — and, I believe, our Founders — democracy depends, moreover, on citizens’ right not just to be heard but a corollary, a right to hear diverse points of view necessary to make informed choices. In 1787 Thomas Jefferson wrote that “[T]he basis of our governments...[is] the opinion of the people...” and stressed therefore that we must “give them full information of their affairs thro’ the channel of the public papers, & to contrive those papers should penetrate the whole mass of the people...”
Jefferson believed so strongly in the importance of a citizenry informed by diverse views that he continued: “[I]f it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter. But I should mean that every man should receive those papers & be capable of reading them.”
Today, remaining true to Jefferson’s insight, many Americans appropriately assail China and other totalitarian regimes for denying precisely such freedom of access to information.
If, in our Founders’ vision, a Republic depended on the capacity of educated citizens for reasoned consideration over public matters, then surely “spending as speech” is a body blow to our Republic.
And there’s more to weigh here, for just as corporations are not natural persons, neither are they, nor can they be, citizens.
By their legal structure, corporations have no loyalty to our country. Between 2009 and 2011, for example, thirty-five big U.S.-based multinational companies, including Wal-Mart Stores, International Paper Co., and Honeywell International Inc., added jobs much faster than others. But nearly three-fourths were overseas, noted the Wall Street Journal last spring. Additionally, “at least 60 percent“ of U.S. corporate cash stockpiles are now held abroad.
Corporations’ loyalty is not to the American worker or to the broader community but to shareholders, wherever they be.
So of course corporations cannot pledge allegiance to the United States of America. With the exception of the several hundred firms now incorporated as “Benefit Corporations,” legally obligated to serve the community’s wellbeing, corporations’ charters commit them to the opposite: to narrow self-seeking.
Thus, while most Americans recoil at the idea of “corporate personhood” because of the obvious power corporations enjoy compared to living-breathing mortals, just as important may be their differing responsibilities. And, I don’t mean only the obvious, that citizens but not corporations are obliged to vote and required to serve on a jury and respond to a military draft. I mean something broader: Our Founders envisioned a Republic of citizens committed to, and capable, of participating in self-government.
They emphasized that such self-government could only work as we humans, flawed as we are, cultivate certain Republican “virtues” — especially the capacity to consider not merely one’s own personal gain but to protect democracy itself.
They grasped that self-government could only survive as long as we citizens —in step with the Founders’ wisdom in creating a federal structure of countervailing powers — work to keep concentrated power in check. Jefferson put the danger colorfully: “If once they [citizens] become inattentive to the public affairs, you and I, and Congress, and Assemblies, judges and governors shall all become wolves.”
Thus, what the Supreme Court betrays in its 2010 Citizens United’s decision, and previous rulings affording corporations personhood rights, is our Founders’ concept of citizenship, and thus democratic self-government itself.
Surely, given today’s crises from poverty to climate chaos, we can’t wait for a constitutional amendment to put corporations in their place. We must build toward that goal, I agree, but we must work for change we can effect now.
As citizens We have power to begin to check the political power of corporations — holding elected officials accountable for requiring transparency regarding a corporation’s political spending by passing the DISCLOSE Act and the Shareholder Protection Act. We can vote for those committed to creating a system of citizen and/or public-funded elections so that candidates can win public office without depending on corporate coffers.
For our rights as citizens to hear diverse views, we can also call for a reinstatement of the Fairness Doctrine, in place from 1949 to 1987, that obliged those holding licenses to public airwaves to “operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views of issues of public importance.”
In so doing, we will be reviving the very best in the never-finished journey of our Republic. Claiming our first responsibility as citizens seeking the common good, we can refuse to allow our voices to be drowned out by private entities seeking only the corporate good.
Originally published in the Huffington Post on 08/16/2012