Citizens United v. Federal Election Comm'n: An Occasion for Dancing in the Streets

Okay . . . Perhaps that is a bit of an overstatement, however tempting it is to invoke the famous assessment by First Amendment scholar Alexander Meikeljohn in reference to the Supreme Court's landmark 1964 decision in New York Times v. Sullivan.

But count me among those who do not see this week's Citizens United v. Federal Election Commission decision as the democracy-ending disaster most progressives have proclaimed the 5-4, conservative vs. liberal justice classic.

The idea that corporations have First Amendment rights is hardly new. The idea that we abhor outright bans on speech is hardly new. The idea that people ought to be able to associate freely -- be they organize themselves as Cub Scout troops or publicly traded corporations -- is likewise not new.

What is new, after the Court's ruling, is the end of any pretense about the influence of wealth in the political realm. The wealthiest and most powerful among us organize themselves into corporations (or at least engineer things so they control corporations). These corporations, meanwhile, have had to busy themselves in recent years finding ways to circumvent campaign finance laws. Does anyone doubt their success?

Moreover, it is no small thing that the Citizens United decision also applies to labor unions. Could this be the advent of a new era in which those who feel overwhelmed by corporate power realize that unions represent a great way for (if you will pardon the use of Marxist phraseology here) labor to rebut capital? One could make a similar point about cooperatives, which are also entities of the sort covered by the Citizens United principle. They are a great vehicle for workers and consumers to pool their wealth and deply it democratically.

This week's national hand-wringing about the Citizens United decision offers a splendidly teachable moment about corporations. The concept of corporate "personhood" is actually rather unexceptional. Think of it this way: The New York Times v. Sullivan case that we revere, because it vindicated the constitutional right to subject public officials to nearly unfettered public scrutiny -- was brought on behalf of a corporation. It only makes sense that if the owners of the New York Times have First Amendment and other constitutional rights, they should not have to relinquish those rights just because they choose to exercise them through their corporation. The notion of corporate personhood is really just an unfortunate shorthand for this entirely reasonable concept.

If you think about it, what's irksome about corporations -- or at least potentially irksome -- are their other, non-personifiable, qualities. A corporate charter is a huge gift from the state, because it limits the liability of shareholders to their investment, no matter how notorious the corporation's behavor or how much damage it causes. Think of the tens of thousands of deaths from the 1984 Bhopal diaster caused by Union Carbide and imagine the victims being allowed to go after Union Carbide's shareholders individually. The limited liability principle says they cannot.

The state -- by which I mean the people -- extracts precisely nothing in exchange for this limited liability gift. A related gift is that of perpetual life -- a quality unrelated to personhood if ever there was one. Still a third is the right to own corporations -- which has the effect of further isolating victims of corporate malfeasance from those who might reasonably be held responsible. Have you ever noticed how many layers of subsidiaries -- corporations owning corporations -- separate nuclear power plants like Vermont Yankee from their ultimate owners?

One can imagine all sorts of ways that corporations should have to justify their initial, and ongoing, receipt of these nearly priceless gifts from the government. In all likelihood, it probably comes down to the need to demonstrate some net positive contribution to the greater good, as opposed to merely maximizing return on shareholder investment. It is the lack of this public accountability that is far more socially dangerous than any monster the Citizens United decision might unleash -- for that rough beast has long since slouched toward Bethlehem to be born.