Democracy in the US

 

    In my last blog I pointed out that our government regularly lies to us. It does not matter whether the President is a Democrat or a Republican, or whether Congress has more members of one party or another. Our government again and again acts in secrecy not from some foreign power but from American citizens. Our government again and again misrepresents what it does and conceals some of its activities.

    The point of repeating these familiar facts was to argue that we do not live in a democracy as it is usually defined for us, namely as a government that is  "of, for, and by the people." It is definitely not by the people because they don't even know what the government is doing. It is not government for the people because the secret acts often do not benefit the people. The war in Iraq is one example of that. It is not government of the people because they are being lied to by a ruling group of politicians and business people who hold the rest of us in sufficient contempt to lie to us without shame.

    That is an important lesson that many Americans have not yet learned. They are confused by other aspects of our electoral system, by other aspects of our media which have more freedom than media have in many other countries, and by our judicial system which provides fair hearings to a significant number of citizens.

    All of those, are of course important. In electoral campaigns and in various more or less official media – from the New York Times and Washington Post to random blogs and tweets, citizens express their views on many things and sometimes those views make a difference. There has been – to begin with a negative example – a vigorous opposition to the Iraq war from the very beginning but neither President Bush nor Pres. Obama was very much moved by that. The opposition to the Vietnam war, on the other hand, was so massive that the government could not ignore it. Support for gay marriage has made a difference in courts and in legislative bodies. Support for legalizing marijuana has also affected government policy and the opinion of legislators.

    In our country, what people think sometimes makes a difference. But that is of course true in every country. The Germans did not advertise or talk publicly about their killing Jews, or homosexuals, or communists. They knew better than to stimulate opposition by letting people know what was going on. The secrecy of the Stalinist regime teaches us the same lesson: even brutal dictators care about what people know about them. All governments are vulnerable to public opinion.

    But it may well be true that ours is more vulnerable than a firmly entrenched dictatorship. The free speech we have, which is not unqualified by any means, does allow us to speak out in ways which other countries would not allow. My blog would quickly end me in hot water in no time at all in China, in Egypt or in Saudi Arabia and many other places. Being able to speak out is a real advantage and I am the last person to deny that. I enjoy the leeway that I have  been given.

    As a white person which some resources I am not afraid of the police and I would be confident to receive fair treatment in the courts if that came up. There are many other Americans who cannot be that confident, but some of us can and that, too, is very good.

    But all of these privileges, however valuable they are, do not yield a government "of, for, and by the people." That does not exist in the United States of America.

Free Speech Confusions

The murder of French journalists that worked on the magazine Charlie Hebdo is totally unacceptable.

Public reactions, as reported in the media, seem perplexed in the face of such violent anger at cartoonists lampooning Islam and Muslims. But why is such anger so difficult to understand? Suppose the targets were Jews, African-Americans, or women victims of rape? Suppose the targets were Americans? What would public opinion in the US be if Charlie Hebdo had published cartoons about 9/11 or about the Marathon Bombing in Boston?

Surely, in that case, our anger would also been violent. But in our Western context killing people who do not imminently threaten your life is clearly wrong whether you are offended by what they say, about how they conduct themselves, or what they stand for. It is also against the law. ( Here we begin thinking about Michael Brown in Ferguson or Eric Garner. The parallels with the present case are thought provoking.)

Some public reactions reminded us that it is good to laugh, even at sacred cows. But what if the sacred cow is something that moves you deeply, that you treat with the utmost respect, that is as close to your heart as anything?

A lot of people talk as if these murders had to do with free speech. The First Amendment has to do with efforts on the part of the government to squelch critical opinions. We regard that as illegal. But we regard it as illegal only under carefully limited conditions. You may not, under penalty of the law, shout “Fire!” in a crowded theater where there is no fire.

In recent years we have adopted laws against “hate speech,” against speech that incites to violence, against speech that humiliates and insults persons for being women, Black, disabled, Native American.

But, if you think about this for a moment, you can see how difficult these matters are. On the one hand, we want to be able to utter opinions even if they are unpopular, even if they offend powerful persons.

Consider the case of Steven Salaita, appointed last summer to a teaching job at the University of Illinois, Urbana-Champain. In the last moment, Salaita was informed that the Chancellor would not submit this appointment to the Board of Trustees as bureaucratic rules demanded. The reason: Prof. Salaita had tweeted intemperately during the latest attack on Gaza by the Israelis. Since the leadership of the University of Illinois disapproved of these tweets, the job offer to Prof. Salaita was withdrawn.

Most people—unless they were fanatic Zionists—would react with outrage to this case because we believe that citizens should be able to express their political opinions even if the opinion or the passion with which the opinion was expressed offends others. We should all be able to say what we believe, as long as doing so does not incite to violence or produce imminent harm in some other, serious way. We should not be punished with unemployment for our political views.

But now think of Rep. Steve Scalise, of Louisiana, who in 2002 addressed a meeting of a group associated with the KKK. A number of people have recently criticized him for this. He has apologized, but the Congressional Black Caucus, among other groups, is not satisfied with that. Giving a speech to a white supremacist group that has, for a very long time harassed, including lynched, African-Americans certainly gives the appearance of taking sides with the white supremacists against Black citizens. An elected Congressional Representative should represent all voters in his district, not only the supremacist whites.

Here the inclination is obviously to censor a political stand taken by a politician. They too have the right to express their opinions freely but, on the other hand, since they are elected to represent all voters in their district we expect them to use good judgment in choosing their associates, including what groups to address.

Considering these two cases, side by side, shows very clearly how fraught with controversy and uncertainty free speech issues are. We want speech about politics, religion, matters sexual to be protected. But we also want everyone to be thoughtful and restrained in using those rights. While abuse of free speech rights does not license killing anyone, of course, Americans have always been quite willing to persecute and prosecute people whose political opinions they regarded as potentially harmful to the survival of our republic.

In 1947, a number of screenwriters refused to testify before the House Un-American Affairs Committee trying to find out about Communist influence in Hollywood. One of them, Dalton Trumbo, who authored several Oscar-winning films, lost his job in Hollywood. His political position was punished by taking his job away. During those years, that appeared perfectly acceptable because the country was in the grip of a hysterical fear of Communists and “subversives.” Ten years or so later, firing Trumbo seemed to many liberals an abuse of free speech rights and Trumbo was reinstated.

Questions of free speech are complicated and in many cases, most of us have difficulties deciding whether a certain speech was justified or should be suppressed. Our assessment often depends on the affiliations of the person making a judgment as well as, as Trumbo's experiences show, on the most powerful public opinion of the moment.

But it, of course, also depends on who the target of political speech is. Charlie Hebdo made fun of “muslims.” But there are no muslims-in-general. In France where they constitute about 5 – 6% of the population and a sizable number of them are French citizens, they tend to be poor, unemployed and uneducated at much higher rates than white French citizens. They are, in other words, a vulnerable group.

One would have thought that they deserve some extra protection against being publicly ridiculed. They deserve protections even if groups of “radical” Islamists commit murder in their name.

Congress for Sale?

Until a few days ago, campaign finance law limited how much money altogether any campaign donor could contribute to political candidates in any given year. Yesterday the majority of the US Supreme Court declared that such a limitation "intrude[s] without justification on a citizen's ability to exercise the most fundamental First Amendment activities," namely expressing one's opinion about a political candidate.

The Court's opinion recognized that there is “only one legitimate governmental interest for restricting campaign finances: preventing corruption or the appearance of corruption. Moreover the only type of corruption Congress may target is quid pro quo corruption. Spen- ding large sums of money in connection with elections, but not in the effort to control the exercise of an officeholder's official duties, does not give rise to quid pro quo corruption.”

This passage is a direct quotation from the Supreme Court decision issued on April 2, 2014. Let's look at it.

1. Campaign contributions can either be exercises of free speech—the donors state their political preferences (and put their money where their mouths are)-- or be Quid pro quo corruption when the campaign funds are given in exchange for the politician's vote in a specific case.

2. Quid pro quo corruption is further identified as wielding“ control over the exercise of the officeholder's functions.” One very important function of officeholders, elected representatives in federal, state, or local legislative bodies is to pass legislation. If a representative changes his or her votes to meet the desires of a large contributor to electoral campaigns, we have a case of quid pro quo corruption.

That's fair enough.

But the Court adds that

3. A campaign donor who gives generously to a candidate's campaign but does not ask for specific votes to meet the donor's political agendas is not engaging in corruption. The campaign donations should be counted as a case of speech protected by the Fist Amendment.

But how do we distinguish between a bribe I give to an elected representative and a campaign contribution? That is surely the key question here. We try to limit monetary contributions to political campaigns because we think that the large donors buy influence over the votes a representative will cast. Citizens widely believe that large campaign donations are, in fact, not expressions of political opinion but are plain and simple bribes.

The Court will have none of that. Unless the donor is buying the representative's vote outright, there is nothing to worry about.

But how do we know that?

Most obviously, rarely, if ever, are there explicit deals made, committed to writing-- unmistakable records of unambiguous corruption. It is, in most cases, very difficult to tell whether the donor is buying votes or just uttering political opinions. The court seems to believe that unless there is an unambiguous record of the representative promising to vote certain measures up and down in accord with the donor's demands, campaign donations are just expressions of political opinions.

But consider this. You are an elected representative. Campaigns are every year more expensive. You spend an inordinate amount of time fund raising. If it were not for a few individuals who contribute as lavishly to your campaigns as the law allows, you would not be able to get reelected. So if your big donor calls to have lunch, you will find the time. Just a friendly lunch; you talk family, you gossip a bit, and, yes, your donor lays out the case for some legislation he cares a lot about. Will you have time to listen to a lobbyist in the donor's employ who makes a very good case for this legislation? Yes, of course.

You vote as your donor had hoped you would. He may give you an investment tip or two. [Recent news stories had it that more than half the members of Congress are millionaires. How did they earn that much money?]

What happened to the other side in this issue? Did you have a chance to listen to people who oppose your donor's position? Too bad, that you were too busy but of course the demands on a politicians time are really crazy.

In the view of the majority of Supreme Court justices this is not corruption. It is constitutionally protected political speech.

Is that naïve . . . or corrupt?

Are Corporations Persons?

In 1886 the US Supreme Court declared that corporations—such as General Electric or General Motors—were persons for the purposes of the Fourteenth Amendment. In this view, treating corporations as "persons" is a convenient legal fiction that allows corporations to sue and to be sued, that provides a single entity for easier taxation and regulation, that simplifies complex transactions that would otherwise involve, in the case of large corporations, thousands of people, and that protects the rights of the shareholders, including the right of association.

That sounds perfectly reasonable. Corporate personhood is a mere legal fiction for the purpose of court actions and taxation.

Today this fiction has ominous political consequences. Last year in Citizens United v. Federal Election Commission the Supreme Court decided that, being persons, corporations have free speech rights and thus no one may limit corporate political spending. If we tell corporations that they can spend only so much for political campaigns, we are telling them that their ability to speak out on politics is limited and—since they are person—that would contravene one of our most dearly held constitutional principles that all persons are free to speak their mind.

Corporations have a lot more money to spend on political campaigns than you and I. They can engage in a lot more and a lot louder political speech than you and I. In fact this court case may well intensify the corporate ability to drown out citizens' political opinions. Corporations are now the most important “citizens” that get the best hearing because they can yell louder than anyone else. 

 

It is time to rethink corporate personhood.

Obviously, corporations are not persons. Would you like your daughter to marry one? The fact that corporations will not come to your back yard barbecue to drink beer and talk about the Red Sox is only one indication that this corporate personhood is, indeed, a fiction.

More significant even is that persons are moral beings. We do not always do what is morally right, but the question of morality is always there.

Persons do not only have rights; they have responsibilities. Persons owe gratitude to their benefactors, they have obligations to their parents, and their children. They have civic obligations. They are morally obligated to contribute to the community in which they live, that provided schooling for them, that protects them and their property.

Corporations, typically, are not good citizens. They pollute the environment. In the age of the global corporation, they show no loyalty to their nation or do not hesitate to do business with authoritarian regimes. IBM provided the machinery for Nazi Germany to make list of their Jewish citizens thereby enabling mass killings. General Motors and Ford made trucks and tanks for the US military in the US, and trucks and tanks for Hitler's army in Germany. Anyone with money will find corporations in their corner. During the last two years global corporations like General Electric and Exxon paid no income taxes.

That kind of cold-blooded money-grabbing is not acceptable if people do it. If corporations are persons can we let them be completely oblivious to the moral obligations of persons?

We need to demand that corporations live up to the full implications of their personhood or be stripped of it altogether.

The Supreme Court and Corporate Free Speech

The Supreme Court and Corporate Free Speech

I have yet to meet anyone who does not deplore the role money plays in elections. Everyone knows that having more money for advertisements, signs, hiring high-priced consultants and a large staff will provide an edge to a candidate. Most people deplore that and therefore support legislation to curb private contributions to electoral campaigns. Limiting corporate campaign contributions seemed appropriate because corporations have a lot more money than even the richest private individuals. The Supreme Court decision abolishing previous limits on corporate campaign contributions raises the level of money that will be spent in elections. It will further raise the cost of elections and thus make it even more impossible to run for public office unless you are wealthy and/or very well connected to people who are.

In addition, many observers fear that business corporations now can use their large financial resources to affect public policy even more than they have in the past. Pro business policies will dominate even more than they have so far.

But, of course, not all the money in elections comes from business. According to the numbers used by conservatives, labor unions have outspent corporations in some recent elections. The Supreme Court decision does not exclusively empower big business. It also gives some support to Big labor. It gives pretty free rein to any group with lots of money.

In a contentious situation, like this one, opposing sides have different facts and it is difficult to know which are most reliable. But the fact that pro-business conservatives are jubilant about this decision, while liberals uniformly execrate it, suggests that most people agree that this decision will enhance the political influence of pro-business groups more than that of any other organization.
This Supreme Court ruling is not about whether corporations are human beings--everyone knows that they are not--or about the free speech rights of corporations. It is not even about the relative power of Democrats or Republicans--both parties are over their ears in private interest money. It is about whether groups that have more money, will, for any political issue, be able impose their perspective to the full extent of their bulging moneybags.

The ultimate victim of the Supreme Court ruling is the traditional conception of democracy. There are different forms of democracy: there is democracy that is a struggle between interest groups. Everyone is out for him or herself; the political process is a struggle for private advantage. The goal is to get your hands into the government piggy bank. Those citizens who do not have the money to be significant players in the political process will remain unrepresented. Their share of government support and resources remains small. To that large class belong children, the working poor, small farmers, small business people, the vast majority of American workers who are not members of any labor union. The spoils go to the moneyed interests and, prominently among them, to global businesses. The banks “too large to fail” receive billions of dollars in bailout money. Homeowners unable to pay their mortgages are still waiting for help from Washington.

But interest group democracy was not what the Founders had in mind. I mentioned in a earlier blog James Madison's chapter in The Federalist where he condemns “factions”--his name for interest group politics. Legislators should try as far as they could make laws to benefit all, not just themselves and people like themselves.

We abandoned this public interest democracy, that is supposed to serve all citizens, a long time ago. The Supreme Court decision will serve to entrench interest group democracy more deeply in our political life. The motto of the people who support the action of the Supreme Court is “more for us.” From now on we will have government by moneyed interests, of moneyed interests, and for moneyed interests.