Creative Destruction

There’s quite a buzz right now on the real left about a recent Supreme Court order to revisit Citizens United v. Federal Election Commission. That’s a case where an advocacy group put together a hit piece on Hillary Clinton, but was prohibited from airing it because of campaign contribution restrictions on corporations.

The fear is that SCOTUS wants to eliminate the prohibition on corporate campaign contributions in total, opening the gates for virtually unlimited funding of pro-corporate candidates and issues.

It all goes back to one of the most judicially activist decisions ever handed down. It wasn’t really a SCOTUS decision – it was a mere footnote in an 1886 case, Santa Clara County v. Southern Pacific Railroad Company. That footnote opened Pandora’s Box. Corporations became legal (as opposed to artificial) persons, having all the constitutional guarantees of liberty, including free speech.

The problem is that corporations are not in any sense “persons”. As originally envisioned, they are legal collectives (with limited lives) whose purpose is to raise capital to accomplish large public projects in the public interest. In order to promote the common welfare, these collectives are allowed limited liability for their activities – owners cannot be sued for corporate activities. Only the corporation is liable, and only to the extent that it has assets. No more than that.

The notion of “common welfare” has long been disassociated from corporations, and they now exist for one purpose alone – to advance shareholder wealth. Consequently, they are now legal Bernie Madoff’s, able to participate in any venture and justify any action if it advances shareholder wealth.

Corporations cry out for severe regulation – no free speech, no accumulation of wealth beyond that necessary to achieve a limited corporate purpose. That was the original concept, but it was perverted by activist judges back around the turn of the 20th century in the Santa Clara Railroad case.

Corporations accumulate wealth. Consequently, they are always going to have an advantage over individuals. If they are allowed to legally participate in campaigns, they will own the public dialogue. They will employ all of their sophisticated propaganda apparatchiks to advance their causes. Since advertising itself undermines public dialogue, corporate ownership of that dialogue spells the end of what little freedom of speech we have left in poltiical campaigns.

But I’m a little ambivalent about it. This article by Thom Hartmann, Fascism Coming to a Court Near You, (h/t – SK), has ominous overtones, as if the impending SCOTUS decision will bring about permanent and irreparable damage. That damage was done long ago, the day we severed corporate existence from public good, and allowed them to merrily collect wealth for no particular reason. They have long been a menace to our well-being; we’ve had little success controlling them. Citizens United v. Federal Election Commission may be a mere echo in the distance – the final nail being hammered home.

Years ago I witnessed two-thirds of Yellowstone National Park burn, and I felt deep sadness. I knew the forest would return one day, green and lush. But I knew it would not be in my lifetime. Forests span many generations. But here it is a mere twenty years later, and Yellowstone is in regrowth, green and healthy, animal populations abundant. There are even wolves.

Libertarians like to talk about creative destruction, the idea that certain economic entities have to go out of business to make way for newer, younger and more dynamic ones. The Constitution of the United States was a wonderment for its time. But those who wrote it did not envision the industrial revolution, the massive fortunes that would accumulate, or the rise of the corporation. The coming SCOTUS decision may well lead us to the end of the Republic, which is only limping along anyway.

So be it. We are badly in need of that creative destruction, replacing this battered old beast. Citizens United v. Federal Election Commission might be the hammer. The only sadness I feel is that the new forest will not appear in my lifetime.