One school of thought is that we need not get too exercised about the U. S. Supreme Court decision telling governments and the American public that they cannot stop corporations from buying elections or controlling officeholders by spending vast sums of cash for or against them or threatening to do it.
How could corporations influence elections and policy any more than they already do? It is a good question.
Here in our little out-of-the-way state, we have seen in the past year how some of the country’s most profitable corporations through the expenditure of tens of millions of dollars on television and newspaper advertising, direct mail and lobbying sharply changed public views of important legislation in Congress — health insurance reform, climate legislation and collective bargaining rules. In doing so, they have already influenced the elections this season.
All those millions did not come from corporate general treasuries but rather through the accustomed ruses — political action committees, associations, public-spirited sounding front groups and various schemes for laundering money.
The insurance companies washed millions through the U.S. Chamber of Commerce, which underwrote television commercials attacking health bills as “a government takeover” of health care.
Will corporations spend any more now that the Supreme Court says they do not have to hide it and can spend directly from general funds? And isn’t it better if they do it directly and make full public disclosure so that we all know what they are doing?
No, there is nothing good about the arrangement, starting with the constitutional dialectic used by the five former corporate lawyers on the Court who rendered the decision. They said the framers of the Bill of Rights intended for corporations to have the same rights as individuals.
The checkout clerk at the supermarket can spend any amount that she wants to elect or defeat U.S. Sen. Blanche Lincoln or the local mayor or to shape public opinion about them, although she is restricted if she gives the money directly to a candidate’s campaign.
Exxon Mobil or ARAMCO, the U. S. unit of the Saudi national oil company, is entitled also to spend whatever it wants, too, the justices said. They view that as a simple matter of equality. Emily and Bank of America have equal footing.
A corporation is not an individual, and you can find writings by the authors of the Bill of Rights to that effect. A corporation does not have ideas or feelings that it needs to the public to hear, not apart from the ideas of its CEO and directors.
Jefferson and Madison warned about the power of corporations, even in the formative days of the republic, to overwhelm the public voice in the councils of government. Corporate speech and its agent, the company’s wealth, are merely an extension of the CEO or the board of directors, whose speech rights as individuals are already protected.
Former Justice Sandra Day O’Connor, the Reagan justice whose successor cast the deciding vote for the corporations and whose opinion in 2002 was one of the precedents overturned by the court, was incensed by the decision.
She raised a point that should be especially alarming to people in Arkansas. Special interests may have a legitimate right to use their power to force the legislative and executive branches to do their bidding, but the judicial system is another matter, she said. There, at least theoretically, matters are settled by law, not by opinion or political influence.
But states that elect their judges — Arkansas is one of them — will now find powerful interests bidding to control the courts. Insurance, tobacco and energy companies on one hand and trial lawyers and labor unions on the other will spend heavily on trial and appellate judges to see that their cases are tried by sympathetic judges.
Our neighbor Texas furnishes a harrowing example of corporate purchase of judicial seats. Justice O’Connor pointed to a recent case in West Virginia as a harbinger of what is coming.
The CEO of A. T. Massey Coal Co. spent $3 million to defeat a justice on the state Supreme Court, which was about to consider an appeal of a $50 million judgment against the coal company.
The coal executive got his man elected to the Supreme Court, and the new justice then cast the deciding vote overturning the verdict against the corporation. The company spent $3 million and saved $47 million.
As a result of the court’s corporate- speech decision, any company or an entire industry can dump a vast fortune into an independent campaign committee — commonly known as a “527 committee” — and either attack or support a candidate for any public office, from alderman on our city councils to president of the United States.
It was just such a 527 committee — this one dedicated to demonizing Senator Hillary Rodham Clinton with a film distorting her work in Arkansas and beyond — that gave the Supreme Court the chance to take the last restraints off corporations.
This is not going to be pretty. Justice O’Connor said it best: “Mutually assured destruction is the most likely outcome.”