Wednesday, August 27, 2014

The campaign finance mess

Most concerned voters regard the Citizens United v. FEC decision (2010) as a disaster for our already beleaguered electoral process because it allows corporations – not just individuals – to donate to political campaigns. Not content to leave the matter there, the Supreme Court did further damage earlier this year in McCutcheon v. FEC which eliminated any upper limit on how much a given donor – individual or corporation – can contribute to political campaigns in a given election period.

Unfortunately, many folks have reacted to these decisions in the wrong way: they regard the villain of the piece as the Court’s much earlier holding (late 19th century) that corporations are legal persons and therefore entitled to some of the same constitutional rights as natural persons. This reaction misses the real point of the court-majority’s opinion. The core idea of their argument – made clear in a long series of cases - is their claim that there is no constitutional requirement that the electoral process be fair. They reject outright the idea that voters have a right to a (more or less) level playing field in elections. Here is Chief Justice Roberts quizzing attorneys for the state of Arizona during oral argument over a 2011 case involving campaign finance:
I checked the Citizen’s Clean Elections Commission website this morning, and it says that this act was passed to, quote, ‘level the playing field’ when it comes to running for office. Why isn’t that clear evidence that it’s unconstitutional?” So much for the century-long effort of liberals and progressives to accomplish that democratic goal.
In this context, the attack on corporate personhood is a red herring. Of course corporations are not natural persons; that is a necessary truth. Corporations are creations of a legal system and could not exist without it. And they lack many of the essential properties of a natural person, among them, they don’t have their own ideas, make their own choices, feel regret over their unsuccessful investments and cannot be thrown in jail. But that said, it does not follow that corporations cannot legitimately possess some kinds of legal rights. Indeed, they could not function without legal rights to make contracts, own property, sue other corporations, etc. But it does not follow by any stretch that because they have some legal rights they must have all the legal rights of natural persons, including the right to contribute to political campaigns.

Clifford Anderson
Department of Philosophy
Sacramento State


  1. Cliff, I'm not sure I follow this. It seems to me that it is true that there is no constitutional requirement that the electoral process be fair, since there is no constitutional requirement that people be permitted to vote at all. But, given that, how can the attempt to level the playing field with regard to the electoral process be in conflict with the constitution? What precept or idea is it supposed to be violating? The only thing I can think of is that it violates the First Amendment. So then we are back to the corporations as persons issue after all.

    1. Randy: You are right that the Constitution does not recognize the right to vote (a legacy of the slavery era) but ever since the civil rights era of the sixties, the Court has used the equal protection clause of the 14th amendment to reject attempts by states to limit peoples access to the ballot box. So in effect, the Court now reads the Constitution as guaranteeing every citizen the right to vote absent some very compelling reason. The only exception I am aware of is those states that deny felons and ex-felons the right to vote.

      You ask how can a level playing field be in violation of the Constitution? Good question! But I don't think it opens the question of corporate legal personhood. Most all states allow corporations and other large organizations to make campaign contributions. (Montana prohibited all corporate contributions prior to the McCutcheon decision.) But the states have been trying often unsuccessfully - just to limit the size of their megaphones. Apparently the Supreme Court majority is unbothered by the fact that over 90% of all elections are won by the candidate with the largest cambaign chest. Nor are they bothered by the fact that people and organizations that write very large campaign checks usually expect something special in return when their candidate wins.

  2. Cliff, thanks for this thoughtful synopsis of the problem Citizens United created. I agree that the focus should not be on the legal personhood of corporations. Indeed, the Court has held that corporations are legal persons since the late 1700s. Protecting corporations as though they are persons (rights to contract, to hire and fire workers, to incur debt, to acquire holdings in other corporations, etc.) is the flip side to recognizing that they, as persons, can also be held liable for their actions, products, and services – in both tort and criminal law. If it weren't for the law treating corporations as persons, then those injured by their actions, products and services would have no legal recourse. This is a huge benefit to the public interest.

    But, the courts have recognized that the 14th Amendment applies to corporations almost since the amendment's inception, at least since 1888 (Pembina Consolidated Silver Mining Co. v. Pennsylvania). So, Citizen's United was not really ground breaking in terms of the equal protections of the law for corporations. What the court seemed to do, was to decide that campaign contributions are indeed a 14th Amendment issue. The ruling over-turned important Civil Rights Era statutory restrictions on campaign donations. This is not really much different from what the Court has recently decided in the Hobby Lobby case, that corporations deserve equal protection of the law. What was ground breaking in this case was the claim that corporations can have religious convictions, as a natural person might, and to which, without a doubt, the 14th Amendment applies. That Hobby Lobby case was narrowed to apply only to "closely held" corporations was to give credence to the claim that corporations can indeed have religious convictions -- ones, presumably identical to the beliefs of their no-greater-than-five-majority-stockholders.

    So, what could be the really significant legal shift Citizen’s United provides? Cliff’s on to a pretty darned good point: that there is no guarantee of fairness in the electoral process.

    I agree with you entirely, when you say that recognition of corporations as legal persons has its valued place in the public interest. I also agree with you when you say that recognizing some legal rights and responsibilities of corporations does not entail recognizing all those possessed by natural persons. I wonder though, where and how we can better draw the line. Thoughts?

    1. Chris: I've always liked Bruce Ackerman's idea of issuing every registered voter a "Patriot Card" worth, say, $100 and that would be the sole source of money given to candidates. The card owner could direct the whole amount to one candidate or split it up among several. The card could be made non-transferable by special coding so non-political types couldn't sell their card for cash. The ultimate in level playing fields. Alas, the Courts probably wouldn't buy it on the grounds that it would restrict free speech rights (Buckley v. Valeo, 1976). I'm trying to figure out a way to get around that. Cliff Anderson