Here are two more good articles about the Supreme Court’s recent disaster of an opinion. Ruth Marcus of the Washington Post describes some of the ways that the Court engaged in fairly brazen intellectual dishonesty regarding the status of corporations as persons vis-a-vis election. David Kairys of Slate also makes criticisms along the same line, and reminds us that the Court has not been hesitant in recent years to remove First Amendment protections for students, protestors and whistle blowers.
In reflecting on this decision the last couple days, I’ve come up with several new thoughts:
First, I was discussing this with Luke the other evening and he reminded me that corporations general treasuries are reflections of the wealth of their shareholders. His point was that the recent financial crisis showed that shareholders usually have no idea what corporate officers are doing with corporate money, so this vastly increases the political power those officers in ways incommensurate with their actual monetary resources. This is an interesting idea. It got me thinking even further along these lines, particularly regarding the greatly increasing role of Sovereign Wealth Funds in providing capital to corporations these days. Ian Bremmer gave a talk at the Carnegie Council a few months back where he stated that no one in academia and very few policymakers understand the implications of this. Well, here’s one implication: the big SWFs are owned by China, oil-exporting Middle Eastern countries like the UAE, and Russia. And opening up corporate general funds to American political campaigns gives them a direct route around U.S. campaign finance laws prohibiting contributions by foreign governments. And there is no way to fix that loophole, consistent with Citizens United, without barring U.S. corporations from participating in global capital markets.
Second, by bringing corporations directly into the political process, it destroys one of the primary supports of a democratic society identified in North, Wallis and Weingast (2009)’s fantastic book “Violence and Social Orders.” They place great emphasis on how important it is to functioning democracy for there to be substantively equal access to 1) organizational forms and 2) public goods, for all citizens. Introducing corporate power into elections will create very strong pressure for lawmakers to restrict favored organizational forms to their most valued supporters, and to channel private goods to them rather than creating public goods for all citizens. You might argue that this already happens, but I don’t think it’s current state is anything like what we may see in the future.
Third, this has led me to thinking about political psychology. I read this opinion and I think to myself that this is so obviously, patently, indisputably wrong that no reasonable person could possibly come to the conclusion of the Court. But somehow five Supreme Court justices did. This divergence is so great that I wonder whether it has psychological roots. Either I’m crazy or they are. I know alot of political scientists think judges are just politicians in robes and just twist existing laws to reach desired political outcomes, but I don’t buy it. Don’t get me wrong, it happens, and I even experienced it myself when I practiced law. But there is such a strong norm of fidelity to the rule of law that judges would be heavily reticent to go beyond construction of the law for fear of violating their own professional honor and losing the respect of their peers.
Like I said, I think this opinion is so far out in right field as to be Lochner-esque, but five intelligent men somehow bought into it. I really do not understand how that is possible.