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Carl Pope

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The "Looking Glass" World of Citizens United

Posted: 06/23/11 12:01 PM ET

When asked, no one in the audience at Netroots Nation will admit to having friended the late mathematician Charles Dodgson on Facebook, but a number of people giggle, realizing that a Lewis Carroll (Dodgson's pen name) joke is coming.


But, really, the only way to understand recent Supreme Court rulings on corporations and politics is through the kind of mathematical manipulations that enabled Carroll to construct Alice in Wonderland and Through the Looking Glass.


Let's begin with five simple logic propositions -- statements that make no sense in the real world, but explain Citizens United and other recent court opinions:


Money = Speech


Money (Campaign) Money


Access ≠ Value.


1886 = 1793


Corporation = Person


Using these five propositions, here's how the justices got their results. (Rules of logic are shown like this: <Transitory Principal>.)


If money = speech, then speech = money. <Identity principal.> You can't pay the IRS with speech, or even buy coffee at Starbucks. But since 1974 the Supreme Court has held that in politics, since money enables speech, to regulate money in politics is to regulate speech. (Of course, I can have more speech if I deny anyone else the right to speak, so censorship, by this logic also equals speech.)


Money(Campaign) Money. This illogic goes way back. If I put $100,000 into a congressman's bank account, and then ask him to do me a favor in exchange, it is attempted bribery or "corrupt influence." If the congressman does the favor for me, it is bribery. But, according to our courts, if I put the $100,000 into a bank account in the name of "Citizens to Reelect Representative Smith," it's not bribery. This is true even though Representative Smith, at the end of his career, can take my $100,000 out of the campaign account and use it to buy a yacht on the Riviera. So, in this case, money(campaign) money.


There is an important corollary logic underpinning this Looking Glass proposition. Everyone, even the courts, concedes that campaign contributions are a way to purchase access to a public official. In fact, both parties maintain official "donor circles" for which, in exchange for a specified contribution, the donor gets a meeting, or a weekend, or a round of golf, with important elected officials.


But, the argument goes, access is not a "favor" or "thing of value," so there is no quid pro quo in these transactions. Access value. Now imagine a courtroom in which, in order to have your lawyer present your case, you had the pay the judge. That's the reality in many countries, and it's effectively true is some U.S. courts, too. But everyone agrees this is bribery, and when U.S. judges are caught doing it, they are punished.


Why is this principle somehow different when the public servant in question serves in Congress or the executive branch instead of on the federal or state bench? Why is it acceptable for presidents, governors, and legislators to insist on being paid before they will listen to your case?


Access = value or influence, except in Looking Glass logic.


1886 = 1783


This intriguing bit of arithmetic didn't used to be important. But today's Supreme Court majority prides itself on an "originalist" interpretation of the Constitution, meaning that the Constitution today should be interpreted exactly as its authors intended. Now in 1783 many things were embedded in the Constitution that we have since changed. African-Americans weren't full human beings. We changed that with a Civil War and three constitutional amendments. Women weren't full citizens. Changing that took a forty-year mass movement and a constitutional amendment. Corporations weren't even mentioned in the Constitution, and they certainly didn't have any rights. The first inklings of corporate rights emerged after the Civil War and only became full-fledged in 1886. So the Scalia originalists on today's Supreme Court are forced to pretend that the "real" Founding Fathers were the corporate lawyers who served on the Supreme Court after the Civil War. Those corporate judges are the one who came up with one of the more remarkable bits of Looking Glass logic:


A corporation = a person.


Corporations are immortal, have no heart, and (at least in the opinion of the neoclassical Chicago school of economists) are not permitted to have a conscience. Indeed, many right-wing thinkers will insist that corporations are simply bundles or contracts and not entities at all. Why corporations should have come to be viewed as persons is, logically, a mystery.


But in 1886 the Supreme Court began giving corporations the legal rights of persons. No Civil War was fought. No great social movement led to this change. No constitutional amendment was ratified or even proposed. In fact, the Supreme Court never even voted on this principal. A law clerk just inserted the doctrine into an opinion as something already settled - although he could not say when or how this had become settled!


But even in the business-obsessed 1920s, the courts stopped short of giving corporations political rights -- the line that the current Supreme Court crossed when, with the Citizens United decision, it embodied them with unlimited rights of political speech. (And hence, since money = speech, of unlimited political spending.)


So why have American judges gone through such extraordinary logical contortions to create a Looking Glass world in which corporations, as artificial persons, are entitled to engage in unlimited campaign spending, supplemented by bribery as necessary, all in the name of the First and Fourteenth amendments, and all while pretending that 1886 was the year to which an originalist constitutional jurisprudence should look back?


The reason is quite simple and relates to bit of non-Looking Glass, ordinary logic.


That money = power is a true syllogism in everyday life, as is the statement power = money. <Identity principal>


Since the Constitution protects individual speech, it also protects, by this syllogism, corporate power.


Speech = Money


(Campaign money Bribery )


Corporation = Person


Money = Power


Protection of individual speech > Protection of campaign gifts from persons > Protection of campaign gifts from corporations > Protection of corporate power <Transitory Principal>


Q.E.D.


It is a profound mistake to think that those on the right who are so solicitous of corporate rights actually care about the corporate form itself. What they worship is that which the corporate form exists to achieve -- the aggregation of economic wealth in an unaccountable fashion. It is unaccountable, concentrated power that this Supreme Court worships and that is the dominant value in the Looking Glass world into which the logic of Citizens United has thrown us.


The difficulty with ordinary democracy, for today's Supreme Court majority, is that it has the potential to give each citizen a somewhat equal voice, and for the majority to limit the privileges of the successful. If undoing this threat requires saying that 1793 = 1886 (along with the other acts of Wonderland logic), well, it's worth a little illogic.

 
 
 

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