Further discussion on the implications of Citizens United v. FEC

I'm afraid my blog posting last night was heavy on rhetoric (and maybe a little hyperbole) and short on analysis, a symptom of the intense emotional impact of the decision. I've spent a good portion of my academic career dealing with issues of legal sociology including supreme court decisions and how jurists construct law using precedents. For me the 'how' of this game changer feels very clear, although I may be mistaken (only time will tell).

The first phase of the analysis starts with media markets and media outlets. There are relatively few major outlets nationally and relatively few in most major media markets. Campaigns, which for the sake of argument we will treat as being run by candidates, rely upon funding to produce access to these outlets in the markets where they need to get the message out to voters. I agree with Ginsberg that this ruling will diminish their capacity to get access and to control their message. In fact, I would go one step further and argue that candidates will only have an appreciable level of control in races where corporate interests are not at stake (i.e. races where both candidates are quiet on or in line with the corporate issues at play in their area - this is, itself, one of the most dire aspects of the decision - if you want to run an unmolested race you can no longer threaten ANY moneyed interests.).

The second aspect is the analysis of the legal fiction of corporate personhood and the relationship between this fiction and the legal construction of rights. (Note: for any not well versed in this area - it is not contested that corporate personhood is in fact a legal fiction [http://en.wikipedia.org/wiki/Legal_fiction]) Do corporations have the right to bear arms? Do corporations have the right to vote? Do corporations have the right not to be discriminated against because of their race, gender, or country of national origin? Do corporations have the right to get an abortion? Do corporations have the right to freedom of religion? Do corporations have the right to free speech? Somewhere along this continuum of questioning the concept of a corporation as a person becomes absurd. Somewhere before that point it becomes problematic. The original purpose of the fiction (the ability to sue and be sued under common law), actually makes a great deal of sense. However, the corporation is not a person. They don't sleep or eat or die or fornicate, and they don't have children (which does wonders for your perspective). So if we agree that they are not actually people and that it is absurd to grant them everything that we talk about when we talk about human rights, then we agree that the line must be drawn somewhere between the point where they are suable and the point where they win a supreme court case ensuring their right to get abortions (I'm reminded here of Loretta from the Life of Brian).

I believe that there are clear reasons why this line should be drawn well before we extend them the right of free speech. Those reasons are principally structural (legal fictions are constructed so that the law can deal with reality on the ground, so it is with the landscape that we must begin our analysis of how and why to restrict the extension and/or expansion of legal fictions.) In this vein it is not necessary to demonize either corporations or the people who run them, it is simply necessary to have a little bit of perspective that combines contemporary social psychology with some of the lessons of history. For example, we know from scientific observation that groups of people do not behave the same way as individuals. Whether those groups are gangs, clubs, unions, churches, or corporations they develop decision making processes and group dynamics that make them fundamentally different types of entities than your typical individual. I don't want to belabor the point, but the data is out there (you could start here: http://en.wikipedia.org/wiki/Group_dynamics if you were so inclined). Just to throw in a little criminology, individuals very very rarely (you could almost say never - statistically) engage in spontaneous acts of violence against another individual. However, once there is a group, the chances of spontaneous violence by that group towards an individual (or even another group) go from very near zero to very, very real (it is not difficult to recall numerous historical examples of this). This may seem rather beside the point until you consider that economic exploitation and other 'common practices' are forms of violence. They are forms of violence that people feel better about committing because it is benefiting THEIR GROUP. This group could be any group, the tendencies and their implications are the same. Individual people are far more likely to have a moment of conscience the precludes them from doing something hurtful to another person than is any person considering the same action in a group setting.

We could also talk about aspects of corporations that are specific. We could discuss how even though Dodge v. Ford Motor Company is considered 'dead paper' by legal experts, it is not only still taught in law school, but it is widely believed to be true (here's another lesson from social psychology - what people believe is true is actually far more important than what is true, which turns out to be behaviorally irrelevant - example: WMD in Iraq). Dodge v. Ford Motor Company established the legal and cultural norm that the first priority of a corporation is to generate stockholder wealth. Like I said, it probably wouldn't stand up in court today, but in corporate boardrooms all across our world, it is the gospel. Priority number one: the stock price. And we recreate this social fiction every day. Every time we buy a stock based only on how much money we think that we can get on our return and not based on whether we think that they have a good business model, or whether they provide valuable services and products, or whether they operate sustainably, or whether they use child labor, or whether they pay their employees a living wage. Every time that we put the bottom line on top, we contribute, we make it true.

I also have to take issue with the idea that 'we the people' can punish corporations. Sure it is true for certain types of companies that have direct consumer relationships: retail stores and carmakers. But it is generally not true for Haliburton or Con-Agra or any of the giant multinationals. It certainly isn't true in banking, you can't stop Citi from purchasing your repackaged mortgage and making money off of you for the next 30 years. Who your loan gets sold to is none of your business (no really). Of course, you could take a completely uncompetitive rate from a vendor who doesn't resell... because you didn't have any real plans for that extra cash you had lying around. Oh, wait, that's them, not you, with extra cash laying about. According to 2007 data for the United States, the top 1% control 42% of our financial wealth, the top 5% control 69%, the bottom 80% control... 7% of America's financial wealth. So let's see, that means that you were probably one of the 240 million people in the bottom 80% in 2007, so you controlled (on average) about 0.00000003% while your average buddy on top had 0.000014% (that's about 470 times more pull than you, on average). So it would take you and your family and your friends and your colleagues at work and probably some of their friends and families to all make a coordinated effort together just to balance out an investment choice made by one of the 'average' people in the top 1%. Don't get me wrong you aren't powerless, you are just relatively financially insignificant.

The second issues that I have with the 'corporate punishment' idea, is that corporations aren't stupid. They are very savvy about disconnecting or distancing their name and brand from anything tarnishing. Now, this doesn't stop them from producing the manipulative media that they want, it just means that they funnel the stuff through channels that obscure their involvement. It isn't the corporations in the health insurance industry who are derailing health care reform, it's a grass-roots movement that happens to be run by professionals who are very well paid by organizations that are funded by health insurance companies... really not the same thing at all. Sure, those who follow politico know that its the health insurance guys doing it, but the average believer in the fear that they are spreading does not know (any more than they ever came to understand that there were no WMD's). This fundamental truth from social psychology is not lost on the strategic communications experts representing the narrow interests of their employers and it should not be lost on us. The public is not smart, the public is not savvy. The public (by and large) just wants to be left alone and will generally grab the easiest thing you hand it to digest. And once it has taken hold of that morsel, there is very little that will get it to let go. Please don't think I'm being cynical or dismissive of our fellow citizens, they are, each and every one of them, beautiful human beings with scores of untapped potential. But they are undereducated and miseducated and that is the fault of our society. As a group they are raised to be the sheep that flock where they are bid, and so they do.

At root, I have to take a final stab at the elephant in the room. Faith in the free market. Make no mistake, it is faith, it is not science, it is not even theory, it is a faith as blind and as devotional as any I have ever studied. Adam Smith, the father of modern Capitalism, laid as precondition for its successful operation the need for informed consumers. As a society we do not even meet this basic precondition. Our funding for education is abysmal and if it weren't for frequent lip service and daycare, it would get no attention at all. The market, such as it is, may be good for deciding how many widgets to make but it is terrible at many of the critical social functions for which it is used, for example:

• health insurance - the cultural norm placing profit at the top of the value hierarchy means that health isn't, period. we could also talk about how it is the biggest hurdle to self-employment and entrepreneurship
• food distribution - shipping florida's oranges to california and california's oranges to florida because people will pay more for 'exotic' fruit goes beyond stupid to full-fledged self-destructive (and it is not an isolated case, it is the norm)
• banking - ROI is not the only reason why a society might want to invest, but when banking is based on profit above and to the exclusion of of other values, then other values suffer

I'd like to end this message with a quote from Adam Smith that has been my email footer for a while now (I hijacked it from a TED lecture by Dan Gilbert - http://www.ted.com/talks/lang/eng/dan_gilbert_asks_why_are_we_happy.html). If his simple advice in this passage were followed by his followers, then we wouldn't be having these issues.

"The great source of both the misery and disorders of human life, seems to arise from over-rating the difference between one permanent situation and another … Some of those situations may, no doubt, deserve to be preferred to others: but none of them can deserve to be pursued with that passionate ardour which drives us to violate the rules either of prudence or of justice; or to corrupt the future tranquillity of our minds, either by shame from the remembrance of our own folly, or by remorse from the horror of our own injustice." — Adam Smith

thanks for reading this far,

eric