Normally, I work hard to take a balanced approach when I deal with controversial issues. On this one, however, I’m finding it hard to see “the other side.”
By a five-to-four vote, the Supreme Court recently ruled that government cannot control corporate campaign spending. The primary reason given by the majority was that a restriction would violate the “corporation’s first amendment rights to free speech.”
The concept of the commercial “corporation” is an old one, extending back to medieval Europe. In essence, corporations were formed to permit: pooling of resources, extending well beyond what any individual might do and permitting easy transferability; an existence that could extend into the unforeseeable future; and limited liability for the investors. The corporate form of doing business became a great way to encourage risk-taking and innovation. As the concept evolved, corporations acquired the legal status of individuals -- with the “rights” and “responsibilities” of people. And here’s where one major problem arises.
There is a tendency, in the law, to interpret concepts literally and rigidly, at the expense of reason, common sense, and even a glimmer of human compassion. It’s safe. It’s easy. And it’s one of the things that must be changed if we are to build a more humane society.
I recently attended a briefing session, conducted by a leading attorney who deals with HOAs (residential homeowners associations). His advice: “whatever the rules and regulations are, no matter what the circumstances, they must be enforced. Your only choices are to enforce or amend.” But there are many rules that are good, and apply to the vast majority of circumstances. Why not make carefully documented exceptions when circumstances so indicate (“the exception that proves the rule”) and leave the rule intact? The response: “the law is not concerned with what is humane.”
Recently, in a city in Arizona, candidates for mayor were invited to speak in a public meeting. Arizona has an “open meeting rule” which requires that, whenever a certain number of elected officials from a government organization get together, advance public notice be given, an agenda be set, etc. The intent is to prevent backroom dealing. One of the two leading candidates refused to show up because enough members of the city council would be present to “violate the open meeting rule.” The rule may be good for the purposes intended, but clearly it was not intended to restrict open political debate. But a rigid approach, lacking capability to adjust to the realities of life and deal with meaningful exceptions, often sets the tone.
My sense is that something similar has happened over the years as the legal attitude to corporations has evolved. We are no longer dealing with realities but with form. A corporation commits a crime and, like an individual, is fined (although I don’t know many corporations which have been forced to operate from behind the walls of a federal penitentiary). How does a corporation commit a crime? In cases such as these, the corporation has evolved into something not intended -- namely a shelter for people who take criminal action. Perhaps a few of them get caught up in the mess, if it’s big enough and publicized enough, but normally, the executives within the organization get little more than a slap on the wrist, the shareholders see their assets go down somewhat by the size of the fine, and then it’s business as usual.
Today, much of the nation is up in arms over the fact that firms on Wall Street which helped create the economic morass in which we find ourselves are defying public opinion and government and are still paying enormous benefits to those who not only harmed the nation, but harmed those same firms. Owners (shareholders) have little say in controlling greed on the part of management. This Supreme Court ruling gives these corporations the same rights as individuals to express themselves by permitting huge expenditures on behalf or against political candidates and issues in ways that serve their self interests, despite the fact that they have already shown themselves to be incapable of behaving in ways that society requests -- even demands.
The minority opinion on the court sees the clear threat to democracy. Corporations are not people. They are entities, run by small groups of people who are able to martial huge amounts of resources gathered from many individuals and organizations in ways that are often totally out of control of those individuals. How can they be given the exact same status as individual citizens when it is clear that they neither behave nor have the attributes of people?
Clearly, there are elements in the life of a corporation which do parallel those of individual persons. But to fully ascribe all attributes to them is the type of thinking that shows no imagination, no understanding of the needs of modern society, and no willingness to be flexible in defining words and concepts.
In essence, the court ruling gives powerful organizations -- pharmaceutical companies, oil interests, wall street firms, insurance companies (probably unions, although that issue was not specifically addressed) the ability to use huge sums of money to influence government in ways that serve their very focused interests. To counter these efforts, individuals would have to mount enormous grass-roots campaigns to raise similar levels of funding and would have to invent organizations to manage the effort. In this battle, if the past is any indication of the future, David will easily fall to Goliath.
This nation desperately needs to find ways to restore trust in our key institutions -- but it’s not really the institutions -- it’s the people behind them: government officials, judges and corporate executives, among others. This will not happen if the rule is that those who have the power make the rules. Democracy, in its purest form means one voice, one vote. By definition, a corporation, wielding the monetary equivalent of thousands or millions of votes, cannot be regarded, for this purpose, as an individual. I keep hoping that common sense will prevail. At least with government, there is an option -- at the ballot box. When the courts start to go awry, the options are much more limited.
Dr. Melvyn Copen lives in both Georgia and Arizona. He is an educator and businessman who has worked and lived in many foreign countries and provides consulting services throughout the world. His column appears every other Wednesday. Please share your comments with him via e-mail at firstname.lastname@example.org.