Supreme Court Justice Antonin Scalia went on CNN recently and defended the Supreme Court's 5-4 ruling in the Citizens United decision by invoking everyone's favorite Founder.
"I think Thomas Jefferson would have said, the more speech, the better," he said in favor of unlimited corporate spending on political campaigns. "That's what the First Amendment is all about... "
Really -- Thomas Jefferson?
Jefferson Warned of the Political Dangers of Corporations and Banks
Surely the good Justice cannot be referring to the same Jefferson who wrote, on November 12, 1816, "I hope we shall... crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country."
Surely he doesn't mean the Jefferson who worried about the rise of a "single and splendid government of an aristocracy, founded on banking institutions, and moneyed incorporations," which he foresaw would be "riding and ruling over the plundered ploughmen and beggared yeomanry."
If Jefferson is going to be conscripted posthumously to any side in the debate over Citizens United, the Sage of Monticello belongs with the vast majority of Americans who reject the Court's decision to treat CEOs spending corporate treasury money on political campaigns as a form of citizen speech. A champion of republican participation, Jefferson feared the emerging tyranny of state-chartered corporations and knew the difference between the exercise of raw political power by favored economic entities and public-spirited discussion by the people.
Jefferson Believed in Walls of Separation and We Need One Now Between Corporations and Elections
As the Founder who championed the American "wall of separation between church and state," Jefferson would likely be urging us to rebuild the constitutional wall separating corporate wealth from public elections that was demolished by the Roberts Court.
The threat of corporate plutocracy and lawlessness that Jefferson glimpsed in his day has become a full-blown reality. Massey Coal in West Virginia, BP Oil in Louisiana, AIG and Exxon-Mobil, Big Pharma, the military-industrial complex: these giant conglomerates wield an awesome and aristocratic power over the people -- our politics, our government, our commerce, our health and environment, and our livelihood -- that would have stirred our more democratic Founders to passionate action and reform.
A Jeffersonian Moment to Change the Constitution
Jefferson believed that the earth belongs "to the living" and argued for constant democratic renewal. Many generations of Americans have acted with this Jeffersonian spirit by rising up to amend the Constitution and overrule the Supreme Court when it has colluded with the enemies of popular democracy and social progress.
When the Court, in the infamous Dred Scott decision, held that black people had no rights the white man was bound to respect, the Radical Republicans organized Congress and the states after the Civil War to pass the 13th, 14th and 15th Amendments. When the Supreme Court ruled in Minor v. Happersett that the Equal Protection clause did not protect the right of women to vote because they belonged in the domestic sphere, the Suffragettes convinced America to reverse the Court and pass the 19th Amendment.
Today, nearly two million people have signed petitions urging a constitutional amendment to reverse the 5-4 Citizens United decision, which unleashed unlimited corporate expenditures in political campaigns. The public understands that the wall of separation between corporate treasury wealth and election financing, which goes back at least to the passage of the Tillman Act in 1907, has been dangerously breached by the Scalia faction.
Of course, Scalia's allies in the political realm now pose as the defenders of the sanctity of the Constitution and warn against a constitutional amendment. They should refresh themselves with Jefferson's choice admonition:
Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment... But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.
In any event, we don't need to supplant the wisdom of the Founders in this case; we just need to restore it. Corporations appear nowhere in the Constitution and, like Jefferson, most of the Framers had no interest at all in giving them constitutional rights to participate in politics.
The Union of Corporations and Public Elections Degrades Both
The drama of this moment compares to the struggle the Founders waged to form the first nation on earth where the people governed themselves and separated their official state affairs from church hierarchies and religious doctrine. As Enlightenment liberals, Jefferson and his friend James Madison argued for strict separation to protect both the political sovereignty of the people and the individual spiritual autonomy of the people in their personal lives. The Founders believed, as Justice Hugo Black observed in Engel v. Vitale (1962), that "a union of government and religion tends to destroy government and degrade religion."
Today, champions of democracy recognize that the mixture of private corporate wealth with public elections (1) corrupts democratic government by replacing the pursuit of the common good with private profit-seeking agendas and (2) distorts the free market in commerce by turning corporations into "rent-seeking" supplicants and political bullies focused on government hand-outs and loopholes instead of technical innovation and honest business competition.
But Justice Scalia's bloc on the Court thinks that nothing can be done to neutralize the awesome political power of corporations. The conservatives refuse to see the corporation as "an artificial being, invisible, intangible, and existing only in contemplation of law," possessing "only those properties which the charter of creation confers upon it," as that great conservative, Chief Justice John Marshall, defined the corporation back in the Dartmouth College case in 1818. Rather, they see the corporation as a natural person on legal steroids, an essential and highly privileged member of the nation's sovereign power structure, one that has the "free speech" right to spend what earlier generations of Americans called "other people's money" sitting around in corporate treasuries to advance corporate management's purposes. James Bopp and the conservative lawyers driving this train are now arguing that corporations actually have the right to spend corporate treasury money secretly, without a trace.
A Strong Democracy, a Strong Market
In 1978, challenging the doctrine that corporations have a right to spend money in political referenda campaigns, Justice Byron White wrote that "the state need not permit its creation to consume it." Today, the majority on the Roberts Court simply proceeds as if the state must permit its creation to consume it.
This new corporatist paradigm drains away the sovereignty of flesh-and-blood "natural persons," which is why most Americans instinctively reject the Citizens United doctrine as a basic category error. Most self-respecting citizens do not accept the solemn assurance, offered by Mitt Romney, that corporate money is no threat to democracy because "corporations are people, my friend."
More insidiously, political money thwarts the central mechanism of a free marketplace: honest business competition. Every day, large corporations, inflated with the hubris that accompanies disposable political capital, lobby for loopholes, subsidies and regulatory non-enforcement; push around their competitors; break unions; and muscle farmers and workers.
Jefferson argued that the traditional "wall of separation" would strengthen government and religion alike. Our Establishment and Free Exercise Clauses have indeed given us both strong government that acts on the basis of reason and a flourishing and diverse religious sector. Similarly, a constitutional wall of separation between corporate treasury wealth and democratic elections would strengthen both the virtuous pursuit of the common good on the government side and the competitive productivity of a business sector reliant on entrepreneurial creativity rather than television propaganda and inside political moves. This means restoring democratic powers wiped out by the Supreme Court.
That's an agenda Thomas Jefferson could endorse. As for the idea of Jefferson backing Citizens United, forget it, Justice Scalia. Alexander Hamilton maybe, but no, never Thomas Jefferson. He certainly wasn't perfect, but he was never a corporate tool.