Supreme Court weighs dangerous reversal of campaign finance law
By Jamie Raskin
First Published on NPR.org, September 10, 2009
In 2008, Exxon’s Political Action Committee solicited Exxon executives and employees nationwide for cash donations to build a campaign war chest on behalf of federal candidates. The Exxon PAC raised less than $1 million in voluntary individual contributions.
During the same election cycle, Exxon’s corporate profits were $85 billion, or more than 8,000 times as much. If the company’s CEO could freely write checks from the corporate treasury account to spend on partisan campaigns or to contribute directly to candidates for federal office, a decision to spend a modest 1 percent of those profits — $850 million — on political campaigns would have been more than five times what all corporate PACs in America raised to spend on congressional campaigns that year, which was $150 million.
Such a reversal of more than a century of democratic laws passed to confine the political activities of private business corporations would send shock waves through our democracy. Although Exxon and other Fortune 500 firms could easily participate in every single federal and state race in the nation, even the decision to spend tens of millions of dollars to defeat five targeted candidates would successfully destroy any future political opposition in Congress or the states to corporate positions.
Some justices on the Supreme Court seem hungry to usher in a new “corporate democracy.” This spectacular outburst of conservative judicial activism would enthrone corporations, diverting them from their job of generating wealth through economic activity and radically changing their role in law and society.
A corporation is not, nor has it ever been, a constitutional person with voting rights; it is not, not has it ever been, a democratic citizen; nor has it ever been a constituent member of “We the People ” The founders did not mention the word “corporation” in the Declaration of Independence or the Constitution, and only a handful of corporations were even in existence at the time the Constitution was written.
The corporation is not a membership organization but an “artificial entity,” as the Supreme Court has called it, chartered by the state or federal governments to serve public purposes. Legally speaking, it has no independent constitutional standing outside of the rights of the people who own it — and they already have the right as citizens to contribute and spend on campaigns. The idea now being promoted that CEOs have a First Amendment right to take other people’s money out of corporate treasuries to spend on politics is outlandish.
Chief Justice John Marshall wrote in the Dartmouth College case that, “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence.”
In our time, Justice Byron White pointed out that we endow private corporations with all kinds of legal benefits — “limited liability, perpetual life and the accumulation, distribution and taxation of assets” — in order to “strengthen the economy generally.” But he emphasized that a corporation has no right to convert its economic resources into political power. As he put it, “The state need not permit its own creation to consume it.” Chief Justice William Rehnquist agreed.
The sovereign actors of American democracy — we, the people — have also understood that business corporations, which are magnificent agents of capital accumulation and wealth maximization in the economic sphere, pose extreme dangers in the political sphere. Our best leaders have wanted business to prosper but never to govern.
We should be as clear-eyed today as Abraham Lincoln was in 1864 when he said that “as a result of the war, corporations have become enthroned, and an era of corruption in high places will follow. The money power of the country will endeavor to prolong its rule by preying upon the prejudices of the people until all wealth is concentrated in a few hands and the Republic is destroyed.”
And we should be as passionate in defense of popular government as Thomas Jefferson, who wrote in 1816: “I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government to a trial of strength and bid defiance the laws of our country.”
© 2009 Jamie Raskin
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