- A body of voters in a specified area who elect a representative to a legislative body
- The people who live and vote in an area
- An electoral district
In the era of Citizens United the question of what constitutes constituency is a legitimate one. Indeed, it may be the biggest question of this election cycle. Traditionally, a constituent was a person, or group of people, that gave a politician mandate as an elected representative. Conversely, politicians were seen to have an obligation to their constituents since mandate required that legislators behave in a way that reflected the desires of their constituents. However, in 2016 it appears that what constitutes constituency is no longer this traditional vis a vis, but rather a cacophony of corporate interest and moneyed Super PACS. Moreover, in this age of ‘corporations are people’ it also appears that this reinstantiation extends all the way to the White House as moneyed interest invariably concentrates power.
So, how did we get started down this path? Long before Citizens United there was another SCOTUS case that garners far less attention but was ultimately more impactful in my opinion. In that case, Buckley vs Valeo , SCOTUS destroyed several provisions of the the Federal Election Campaign Act on grounds that those provisions violated First Amendment rights.
First some background. The Federal Election Campaign Act of 1971 and 1974 sought to “restrain personal contributions”, establish specific “ceilings for media expenditures”, and mandate “full public disclosure of campaign receipts and disbursements”. (Buckley v. Valeo, Opinion of the Court) The goal was to preserve equality of voice in our democracy by regulating campaign contributions and limiting spending. An additional amendment provided public financing for presidential elections. In the wake of Watergate this seemed like the moral thing to do. Unfortunately, in a per curiam opinion however, SCOTUS agreed that several key provisions of the FECA were unconstitutional. Their objections were not governed by a desire for equality of voice but rather by an argument that married campaign contributions and spending to political free speech. It is clear in retrospect that this ruling provided the necessary precedence for Citizens United.
Before we consider the extent of this argument, however, we should first distinguish from a philosophical point of view, why money in politics may be a bad thing. In Plato’s The Republic, Socrates makes clear that the philosopher kings despise political power and rule. Conversely, if those who wish to govern are seekers of power and money, they will not seek the good of the entire city-state, but rather pursue political office for their own benefit. Ergo, philosopher kings make better rulers. Since they are not interested in acquiring these types of rewards, their sole motivation becomes the well being of the ruled and the common good. Their commitment to justness and their hatred of power obligates this.
Plato further believed that the problem of who should rule generally lead to an inflexible and destabilizing disagreement between economic elites and the masses; and that rule by philosopher kings would avert such a controversy. “For it is likely that if a city of good men came to be, there would be a fight over not ruling, just as there is now over ruling; and there it would become manifest that a true ruler really does not naturally consider his own advantage but rather that of the one who is ruled.” (The Republic, Pg 25)
Modern political philosopher John Rawls also discusses the ethics surrounding money in democracy. In a Theory of Justice, Rawls states:
“The liberties protected by the principle of participation lose much of their value whenever those who have greater private means are permitted to use their advantages to control the course of public debate. For eventually these inequalities will enable those better situated to exercise a larger influence over the development of legislation.” Continuing,“… political parties are to be made independent from private economic interests by allotting them sufficient tax revenues to play their part in the constitutional scheme. What is necessary is that political parties be autonomous with respect to private demands, that is, demands not expressed in the public forum and argued for openly by reference to a conception of the public good. If society does not bear the costs of organization, and party funds need to be solicited from the more advantaged social and economic interests, the pleadings of those groups are bound to receive excessive attention. And this is all the more likely when the less favored members of society, having been effectively prevented by their lack of means from exercising their fair degree of influence, withdraw into apathy and resentment” (Pg. 198, chapter on Political Justice and The Constitution)
Rawls is pretty clear on the idea that those with access to greater funds can unduly influence legislation that benefits the few at the expense of the majority; and that this can lead to unjustness in our democracy.
So, it seems that equality of influence and equality of voice in political elections should be the assurance of campaign contribution jurisprudence and legislation. Yet, here we are in 2016 and it is not. This fact brings us full circle to the question originally posited: What constitutes constituency?
I would argue that the idea that any corporation should be granted the same constitutional and natural rights as individual citizens is morally perverse and a degradation to our democracy. A prime example of this is manifested in the 2013 SCOTUS case Burell vs Hobby Lobby . Indeed, the most damaging point in Samuel Alito’s opinion was his definition of a corporation. He states, “A corporation is simply a form of organization used by human beings to achieve desired ends…When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.” (Hobby Lobby decision, Alito) In other words, corporations are collections of individuals, so deserve all the protections the individuals in the collective have. Yet, given the effects of this decision, that claim is questionable at best. Millions of women were denied insurance-covered access to birth control whether or not they agreed with the religious underpinnings that motivated the organizations owners. What of their rights? A true preservation of rights would have left every woman’s choice intact. If you morally disagree with taking birth control you have the choice to not do so. The beliefs of the owners were given precedence over many employees in the collective, rendering his argument moot. For missing from Alito’s definition of collective were the individual voices of all its employees. Not all were heard nor given equality of voice. So, clearly, the belief that a corporation is a collective of individuals and ergo is entitled to the same rights as an individual- regardless of whether all the participants in the collective agree- is deeply flawed.
Further compounding the problem is the disturbing fact that corporations are additionally afforded rights that individuals are not necessarily entitled too. These include massive tax benefits and several forms of liability protection. So it prima facie appears that SCOTUS is not being consistent in the way it views the interchangeability of individuals and corporations. Why is this?
As we discussed earlier, money consolidates power. And it does so in a continual vicious cycle. Public policy no longer focuses on public goods but rather on further ingraining the desires of the moneyed elite who contribute millions to our political candidates. And, morosely, this truism is not contained to any one party- it is systemic. At this point, to deny that quid pro quo between politicians and corporate interest isn’t a reality is simply naïve.
The latest manifestation of this vicious cycle is known as inversion. Inversion is when an American corporation endeavors to buy a foreign company in order to move their headquarters abroad with the sole purpose of not paying American corporate taxes. Importantly, the majority of employees, sales and profits still remain in the United States. To put it bluntly, these corporations suck at the government teat, leach off the American taxpayer and reap ever increasing profits while giving close to nothing back. They move their headquarters abroad, continue to use our paved highways, police and the like, pay wages so low that chunks of their employees collect both Medicaid and food stamps, and often do so after taking advantage of government subsidized tax breaks designed to keep them here in the United States. All the while, Congress has become ineffectual at stopping it due to the reams of laws created by the corporate lobbyists whose money put them into office. The wealth of the United States is being extracted, my fellow Americans, and there is seemingly no end in sight. But that’s not what’s most tragic. What’s most tragic is that we have done this to ourselves by blindly handing over ever increasing amounts of power to corporate interests at the expense of individual citizens and the American common good.
In the wake of Citizens United, President Obama stated in his 2010 State of the Union address that one of the unintended consequences of the SCOTUS decision would not only be the unlimited contributions of American corporations, but also those from foreign companies. In his dissent, Justice John Paul Stevens more or less agreed with Obama stating the court’s majority “would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.” Even so, when Obama stated this, Samuel Alito appeared to openly mouth “Not true”. Really Judge Alito? It should be obvious that what is in the best interests of a foreign company with an American subsidiary is not necessarily in the best interests of America. Yet, here we are in 2016 and it seems that Obama’s predictions and worries were somewhat accurate. There are now multi nationals openly lobbying Congress. There is dark money whose origin cannot be traced. There are foreign entities giving large sums of capital to non-profits held by political candidates and those who support them.
Dissenters to my argument will more than likely state the obvious. Unlimited spending in advertising is not the same thing as being able to contribute unlimited sums directly to the candidate. But isn’t it? Is not the main focus of any political campaign the shaping of perception? The packaging and selling of the candidate? And what better way of doing thus in this modern media age than through advertising? Indeed, in 2008 President Obama’s campaign won top awards in advertising garnering Ad Age’s Marketer of the Year, and Obama for America unanimously won two Grand Prix awards at Cannes.
Dissenters may further argue that I am conflating artificial rights with natural rights. Yet, am I? Granted the traditional domain for corporate rights was certainly artificial. And I am not arguing against that here. What I am claiming is that along the way corporate rights have morphed from artificial rights to a perverse version of natural rights. Artificial personhood at one time allowed corporations to enter into contracts, engage in litigation, collect fees and pay wages and taxes- but did not grant the same kind of natural rights we are discussing here. We have clearly exceeded these traditional confines of artificial personhood, so as far as I am concerned the argument of artificial rights is a moot one.
At this stage in the game I do not see how a defense of unlimited money in politics is tenable. I do not see how bestowing corporations with the same natural rights as individuals has served us well. I do not see a legitimate reason to further the argument that corporations are constituents on the same level as individual citizens. It has simply gone too far and is contributing to unsustainable income inequality. And, most importantly, I am concerned by the systemic lack of will to change these things within the political establishment of both parties. Its dangerous.