Yesterday the U.S. Supreme Court heard oral arguments on whether corporations should be allowed to make political documentaries including hatchet jobs like "Hillary: the Movie" and air them in the final weeks of American political campaigns. It was quite an occasion, a hard ticket as they say. Everyone was very polite and rational. No one mentioned the underlying insanity in the case.
Ted Olsen and Floyd Abrams brilliantly argued that Supreme Court precedent clearly gives corporations First Amendment rights of free speech, and that since speech about politics is the most important kind of speech, it is therefore not to be encumbered. The new solicitor general Elena Kagan gave an impressive performance in her first argument before the court, standing up firmly to a polemical assault by the chief justice, pointing to a century of restrictions on corporate participation in politics as justification for the ban on corporate media products of the type at issue in the case. As usual the justices peppered learned counsel with questions. It was great to see Sotomayor in her first appearance participating alongside her more experienced confreres yet sounding every bit as self-assured and knowledgeable as they. But beneath the eloquence and superb collegiality there lurked a monstrous conceptual deformity, a veritable insane idea -- the idea that artificial beings should have the same rights as American citizens, that they should be able to participate in and even dominate human politics in our country.
How did corporations become citizens under the United States Constitution? It’s a sordid tale, one bordering on the ludicrous. The right of corporations to enjoy free speech and other rights under the United States Constitution is based on an amazing interpretation of the 14th Amendment which first appeared in a footnote in a Supreme Court case in 1886, and which has since been expanded to a sufficient breadth to drive the whole Fortune 500 fleet through. The 14th Amendment of course was not designed to ensure that corporations would be treated as citizens. Rather, it was designed to ensure that recently freed black slaves would be treated as citizens. The Supreme Court, however, reflecting its rural state and Southern bias, was never keen on using the 14th amendment for the purposes for which Congress had intended it. But soon after the end of the Civil War railroad lawyers began to urge an alternative interpretation of the amendment, suggesting that since corporations were formally treated as "persons" under the law, that the language of the 14th amendment should apply to corporations, and they too, like all other persons, should not be denied due process and constitutional rights.
At first the justices thought this idea was patently absurd. But the railroad lawyers kept pressing the issue, decade after decade. Members of the railroad bar were themselves elevated to the high court. And finally in a footnote to Santa Clara County v. Southern Pacific Railroad the U.S. Supreme Court granted artificial persons 14th amendment rights under the Constitution. Now if the Supreme Court takes this supremely wacky idea to the extent to which Messrs. Olsen and Abrams urged yesterday, we will see the reductio ad absurdum of this trend. Corporations will create slick media products telling one side of the story and completely dominating general elections in America. Richard Scaife will now be able to not only sponsor lawsuits but he can make vicious documentaries and plaster them on media in key markets.
It seems that the conservative leaders of today’s Court are entirely blind to the lurking insanity of their ideas. For example the solicitor general was pointing out that for corporations to use their corporate treasuries to participate directly in politics was to use their funds for purposes other than their fiduciary responsibility to increase shareholder value. But Chief Justice Scalia pointed out that sometimes stockholder interests can be directly aligned with corporate spending on politics. The example he gave was a tobacco company in a state where a candidate for office was proposing to make tobacco illegal. There, said our chief justice, the shareholders would have a direct interest in political speech defending tobacco. Brilliant example, Mr. Chief Justice. Perfect. Nothing better illustrates the underlying insanity. Corporate values are about increasing value even if it comes at the expense of human health and human life as in the case of tobacco and health insurance companies. But human beings have other values besides their hopefully aggrandizing investments. They value their health, and the integrity of their political system, such as it is.
Most of the knowledgeable observers believe that the Court in its wisdom will rule in favor of corporate free speech, including corporate hatchet speech. So just one final look at the insanity component of this: Justice Ginsberg asked whether Free Speech should be accorded to multinational corporations, including corporations with many or even a majority of foreign stockholders. Would they be able to participate in American elections? Suavely Mr. Olsen assured her that precedent made no distinction between corporations as to their ownership. So there we have it, the absurdity toward which we are headed, free speech for multinationals, including companies which are acting as fronts for the Chinese or Israelis or Saudis. They will be free to make brutal one-sided movies about American politicians and use their huge sovereign wealth to flood American airwaves. If you liked the Swift Boat campaign, you’ll love what lies ahead in American general elections. Call it Jerry Springer democracy and thank the geniuses who gave us Gore v. Bush.