How do lambs become lions?

How can corporations be persons? Public Citizen is one of many grassroots organizations saying they can’t and proposing constitutional amendments to shut down SuperPACs. But their proposed amendments are modest restrictions on corporate speech, with an unmitigated loophole for corporations peddling news or information. Any corporation or political machine with privacy protection for all revenues in and the freedom to spend them on votes by any means, direct on indirect, should logically have a special attraction for the money laundering business, increasing the political clout of organized crime. First amendment protections for cash and corporations respectively invite corruption if they aren’t withdrawn absolutely. So why do constitutional law experts doubt simpler amendments specifying “money is not speech” and “corporations are not people” will work?

Corporations have long-standing rights to enter into legally binding contracts as individuals and bear liabilities as individuals, and the syllogism corporations:individuals :: people:individuals opened the door to First Amendment protections for corporate speech on logical grounds. Word play opened the door to reform of the political economy, but it is shaded. Thus far corporate personhood is due First Amendment rights, but not privacy protections against Freedom of Information Act requests. It is not a literal reversal and a literal reaction would have a muddled future in the courts, because contract law is indispensible and would trump the intent of the reform so completely it could be gutted in the interpretation.

The court’s intentions have hardly been discussed, their actions have so clearly corrupted our politics that popular opinion has no justification for them. Why did the court dare confront us with this unpopular new species of political machine? Perhaps there was more to it than deliberately fomenting SuperPAC politics. Ours is an economy driven by consumerism, and consumers are motivated to spend beyond their needs by aggressive marketing of consumer goods, using disinformation, bombardment, seduction and interactive marketing that relies on corporations’ freedom to gather personal information on consumers. Protecting these tools of the trade keeps our market attractive, and our country trades more on its capacity for consumption than on its capacity for production these days. What seems radical is the notion that corporations have the right to freely influence public policy through spending on political speech, and that this spending need not be reported – not even shareholders have the right to demand information about it. Can these reforms be reversed without bumping up against the economic imperatives of information exchange in the service of consumerism?

On the other hand, I’ve been looking at some textbooks on corruption that favor the conventional wisdom that the court’s attitude is permissive of corruption. Early economic analyses of corrupt practices often harped on this theme: “There are very few things worse for a country than having a corrupt, obtrusive bureaucracy, and one of them is having an honest, obtrusive bureaucracy.” Conservative thinking on economic policy is fairly permissive of corruption per se. Now look at our constitution in this light: “presidential systems are more corrupt, on balance, than parliamentary democracies and that proportional representation systems are more corrupt than first-past-the-post systems. The worst systems combine strong presidents with proportional representation under which a powerful executive can negotiate with a few powerful party leaders to share the spoils of office” (Susan Rose-Ackerman, International Handbook on the Economics of Corruption, 2006).

Steven Rosenfeld has an insightful article on the amendments that have been proposed thus far, their strengths and weaknesses. There is more to this than word play, and as he says, less discussion of ends and means than we will need to have to effectively reverse these reforms.

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Filed under Economics, False controversies, Robin Hood

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