Citizens United and Corporations as the Super Duper

I’ve been working my way through the Thursday’s landmark Supreme Court decision in Citizens United v. Federal Election Commission. Along the way I’ve been debating the case on Facebook, various forums I belong to, with friends at school, and with a professor or two. Many of these people are seemingly ignoring what the case was actually about – an Orwellian situation in which the government filed criminal charges against a corporation for making a political movie and instead focusing on the headlines that the decision has received from the press/link aggregators/bloggers/etc.: “Court Ruling Allows Corporations to Completely Control Your Government and Life” or something to that effect. Olbermann is ranting (Nothing new. Click at your own risk.). Lessig is asking for action. And, in his State of the Union address, President Obama uncouthly scolded the Court to their faces. Tempers are high and we are being told, notably by Justice Stevens in his dissent, that the sky is falling and our democracy’s days are numbered. (As an aside, I wonder if Olbermann and others know that the ACLU, that notorious corporate stooge and enemy of the workin’ man, filed an excellent amicus brief supporting Citizens United and the overruling of Austin. Not surprising because, after all, the ACLU is a corporation.)

The case is certainly important. Others have already offered great comments about why the decision is correct. Timothy B. Lee wrote an excellent defense of the case from a self-described “free speech zealot.” And perhaps none have said it better than Justice Scalia (as is often the case) in his dissent in the now overruled case of Austin v. Michigan Chamber of Commerce:

“Attention all citizens. To assure the fairness of elections by preventing disproportionate expression of the views of any single powerful group, your Government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate: _____”

In permitting Michigan to make private corporations the first object of this Orwellian announcement, the Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe. I dissent because that principle is contrary to our case law and incompatible with the absolutely central truth of the First Amendment: that government cannot be trusted to assure, through censorship, the “fairness” of political debate.

My contribution to this set of commentary focuses more on how the case, and the debates around campaign finance in general, puts into sharp relief disagreements fundamental to political ideologies. Prior to taking a class last semester entitled “The Creation of Public Policy” with former Colorado State Senator and House Member Ken Gordon, I had never found campaign finance to be a particularly interesting subject. It seemed far removed from my usual focus on more abstract and fundamental elements of political philosophy. I came to find, however, that the issues in campaign finance are perfect reflections of the fundamental issues upon which the political sides disagree.

To explain: There are views of free speech that hold that the government should simply keep its hands off the marketplace of ideas and allow the process to run its course. There are other views that maintain that, in order to ensure fairness and prevent “distortion” of the marketplace, the government should buy a podium for those who cannot afford one. The campaign finance debate is simply a spin on this latter view but, instead of buying people podiums (which we’ve already seen in various versions of the fairness doctrine), the state should take away podiums from those who have too many. Moreover, it is quite clear how these two views on the proper functioning of the marketplace of ideas line up with similarly differing views on the proper functioning of the economic marketplace.

And the policy prescriptions are identical: Government has the right, if not the duty, to fix distortions in both markets – ideas and economics – in order to ensure fairness. Often lost with these pleas is the discussion of whether or not the government has the ability to do so in an effective and trustworthy way.

One of the justifications for upholding this law is the so-called “antidistortion” rationale. Although it was weakly pushed by the government in Citizens United, I think it is the core reason why the average leftist Joe is angry with this decision. Fundamentally, the left is afraid of entities with power in the economic marketplace transferring their power to the political marketplace. When examined, however, this reasoning fails apart. Not only would this logic bar Oprah, as well as any actor, from commenting on a campaign, but it seeks to divide up the world into government approved speakers and non-speakers by saying, “okay, your power in economics is congruent with what it should be in the realm of ideas, move on…Next!”

In order to identify a distorted marketplace of ideas, one must be able to identify, or at least imagine, what a non-distorted marketplace of ideas would look like. Some truly bizarre versions of an undistorted market have been offered. Justice Marshall had this to say in Austin v. Mich. Chamber of Commerce:

Michigan’s regulation aims at a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas…it ensures that expenditures reflect actual public support for the political ideas espoused by corporations.

Apparently, whether or not the financially powerful can speak should be dependent upon how many people already agree with them(!). (I wonder if the left would apply this same logic to George Soros and others who derived their wealth from the corporate sphere and then propped up the ailing Air America.) In his dissent, Scalia responded to Marshall:

The Court does not try to defend the proposition that independent advocacy poses a substantial risk of political “corruption,” as English-speakers understand that term. Rather, it asserts that that concept (which it defines as “financial quid pro quo’ corruption,”) is really just a narrow subspecies of a hitherto unrecognized genus of political corruptionUnder this mode of analysis, virtually anything the Court deems politically undesirable can be turned into political corruption — by simply describing its effects as politically “corrosive,” which is close enough to “corruptive” to qualify. It is sad to think that the First Amendment will ultimately be brought down not by brute force but by poetic metaphor.

Marshall’s theory is what I call the “static state” theory of the marketplace of ideas; i.e. there is something special and pure about the state of political opinions at a given moment and, if this perfection is to be disrupted, then it should be gently coaxed into a new combination rather than uproariously disturbed. The pond should get pebbles, not rocks. The government apparently has the job to maintain this quaint little arrangement or, at least, make sure it doesn’t change too quickly.

Of course such a theory, if widely applied, would have us still mired in political serfdom. There would certainly have been no American Revolution; a revolution caused by rocks and not pebbles, with ideas pushed by a wealthy elite (i.e. all the founders) and funded out of their own pockets. Paine’s Common Sense was helped along by the not inconsiderable resources of Benjamin Rush and Paine’s own above-average funds. It gained power not by the money backing it, but by the strength the ideas had with the public. History would have been quite different if the English government felt it had the duty to ensure that influences on public opinion are congruent with the existing state of public opinion.

For the left, the logical result of reasoning like Justice Marshall’s – which, as I said, seems to be the common opinion of most leftists – is that corporations should be encouraged to spend all they can on political causes. This is to say that – if there is something pure about a given landscape of political opinions – then corporations will simply spend down their coffers trying to change the minds of people already committed, beating their heads against a wall and possibly bankrupting themselves in the process. This is not the conclusion they reach, however, because of what I call the “duped” theory of political opinion.

Both sides of the political aisle attempt to explain the other side’s opinions as a product of something other than rationality and a careful consideration of the facts. At some level, this may be psychologically necessary in order to maintain the self-aggrandizing illusion that only your side is rational and “gets it.” Therefore, the political right and left manufacture the existence of “dupes”; those people easily influenced and lulled into complacency by powerful forces. For the right, the duping force is often characterized as the “liberal intelligentsia”–the universities and their left-leaning professors, hollywood, and the public school system populated by left-leaning teachers. For the left, the duping force is corporations, their for-profit motivations, and the corporate controlled media.

George Lakoff’s political psychology is a perfect example of this attitude. His attempts to describe the political brain – to find a non-rational or irrational reason that the right holds their beliefs – ends up being a self-serving apologia for the supremacy of leftist thought. Consequently, his theories are thoroughly unilluminating to those who disagree with him (which I would regard as evidence of a bad political psychology), but completely refreshing to those who are searching for a hidden reason why the other side believes in what they think is supremely irrational. I recently saw him speak and he had the gall to say that, “the problem with the left is that we’re too rational.” (My good friend, and Cato staff writer, Aaron Ross Powell, commented that this is like going to a job interview and saying your biggest flaw is that you work too hard.)

Lakoff has attempted to come up with an explanation for why the right has had any success at all on the political landscape. Given Lakoff’s strong political beliefs, this explanation could not be, of course, that the views on the right have some merit (or at least are not completely crazy) and that people, although wrong, could rationally believe them. Instead, Lakoff explains how the right has been successful in using “framing” to circumvent reason and rationality in order to appeal to the emotions.

Although Lakoff’s theories may be useful in understanding how best to advertise one’s political opinions (and this is why he has been employed by Democrats, including Obama, as a political strategist), they are completely useless in explaining why someone may actually hold conservative or libertarian beliefs. At their heart, Lakoff’s theories are no better than saying that the right has managed to put a magic spell onto its constituents in order to gain votes. In other words, the right has duped ‘em.

To combat their enemy dupers, the right publishes books like “The Politically Incorrect Guide to the Constitution” and takes over entire news stations. The left publishes similar books and pushes free speech restrictions on corporations. Both sides see themselves as fighting against an establishment of entrenched interests with an illicit, if not mendacious, influence on public opinion. There is an element of paternalism to both sides, but as Julian Sanchez of the Cato Institute skillfully points out, the left has a distrust of the shotgun-style broadcast ads that may influence those who are not politically engaged:

Broadcast ads basically deliver a vague positive or negative association, maybe by force of sheer repetition, to people who might not otherwise be paying any attention. So there’s a temptation not to think of it as speech—at even a debased sort of attempt at reasoned persuasion—but rather as a kind of low-grade brainwashing. That might not be far wrong, but I dislike the idea of importing a pessimistic view of our savvy as citizens into our thinking about the protection due political speech, even where the pessimism is defensible.

The only solution to this quagmire of self-interested political zealotry is free speech, in the most hearty meaning of the term. As the founders were well aware, both sides have interests in controlling the information and both sides will grab for the power ring if it is held out to them. I mean, if you just know you’re right why should you let anybody waste their time on the wrong? Why indeed.

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2 Responses to Citizens United and Corporations as the Super Duper

  1. Andy says:

    Good read. When’s the next post arrive?

  2. Pingback: The Surreal Texas State Board of Education Meetings: The Religious Right Battles Its Own Super-Dupers « Trevor Burrus

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