Citizens United

I have been meaning for some time to comment on Citizen's United, or perhaps more precisely, the 2010 Supreme Court decision rendered in Citizens United vs the Federal Election Commission.  It is reasonably clear that the decision was ideologically motivated, and insofar as it removed restrictions on the liberty of corporations to use their money as they pleased, the decision represents an advance for liberty and liberalism.  It seems oddly counter-intuitive to say as much, because clearly the decision is more celebrated than  reviled among the conservative wing of our party politics, so it perhaps bears pointing out that Citizens United is not so much an advance for individual liberty, more an advance for corporate and economic liberty.  It perhaps also bears pointing out that liberty, as such, is neither ubiquitous nor uniform, and liberty itself is bestowed unequally between people.  We know intuitively that some are more free than others to do as they please, and that increasing liberty for some might well mean a decrease in liberty for others.  We need a more nuanced understanding of liberty, but there is a considerable fog that obscures both nuance and understanding, much less a nuanced understanding, and Citizens United has done much to underwrite the cost of bigger and better fog machines to enhance the spectacle of election year politics.

Let me make the first nuanced distinction, one that has been made before (though in honesty, I can't remember by whom, so must leave it unattributed) but one that is crucial -- the distinction between freedom and liberty.  In certain crucial respects, as a sentient being, endowed by nature, or by God, or by nature's God with free will, I am free to do whatever I can do.  I am not, however, at liberty to do whatever I can do.  There are legal restrictions within the state that prevent me from doing all that I might want to do and all that I could do. If we imagine for a moment the worst possible circumstances for human beings -- let me call it the prison state -- where there is a person in charge, with minions to assist him, and the remainder of the population are held as if in prison.  The closest analog to the prison state might well be North Korea, but for certain populations, the realized fascist and communist states came close.  In the prison state, the person in charge has both the greatest possible freedom and, insofar as the law is coincident with his whim, he also has the greatest possible liberty.  His citizens, however, feel the distinction between freedom and liberty.  In even the most repressive regimes, one suspects, the citizens know their own mind, are perfectly capable of speaking their mind, and in some absolute sense are perfectly free to speak their own mind.  In much the same way, I am perfectly free at the instant to find the tallest building and jump off.  Prudence prevents me from doing so, and prudence would prevent the citizen of a police state from speaking their mind, not because they lack the freedom to do so, but because they don't want to invite the consequences of having done so.

Having said that, of course, the consequences of jumping off a tall building and speaking one's mind in a prison state stem from different sources.  In the one instance, it's just natural law and its operative enforcement through gravity.  In the other instance, it's political law and the enforcement of that law through the minions.  They are free to speak their mind, and there are no "natural" consequences for doing so, but they are not free to speak their mind because there are consequences for doing so.  The latter consequences stem, if not from natural law, then something very closely akin to it, the ability of the strong to impose their will on the weak through one form of violence or another.  

We do not exist in a prison state.  We exist in a free nation, but not because we have a paucity of legal restrictions on our behavior.  If one were to collect the municipal, the county, the state, and the federal statutes under one cover, I suspect it would be a rather lengthy tome, and all of them -- and I emphasize ALL of them -- place consequential restrictions on our behavior.  I suspect we may have even more consequential legal restrictions on our behavior, per se, than the most virulent of prison states, and in the way of paradoxical statements, we are a free people because of those legal restrictions.  Our founding fathers were quite aware of this, and as Hamilton put it in what has come to be known as the Federalist Papers, "nothing is more certain that the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers."  All governments -- and I emphasize, ALL governments -- are coercive, the question is not whether, but how they are coercive.  We are a free people, because we have ceded our natural rights, our freedom, to an absolute legal authority.  We are an absolute dictatorship, not of the prison warden and his whim, but of the law.

I am splitting hairs here, and then splitting the split ends, but it is important to do so.  I could have made the equally paradoxical statement that the prison state, in one respect, represents an absolutely free state.  I would be making a Hobbesian or Darwinian argument, one that sees a "state of nature" as a competition for survival and dominance.  Within nature, the "fittest" survive and dominate, and if one extends that metaphor to the state, the "fittest" survive the climb to the top and dominate.  If everyone is absolutely free to compete for survival and dominance, with no restrictions on that competition, then the result is one or another version of the prison state.  One hears this argument most often within the economic sphere.  We should remove restrictions on competition, and safety nets for failure, so the "fittest" of the bunch can survive and thrive.  You will note, however, that this is just a way of saying "might is right," and I hope I would not need to argue long that it says little or nothing about compassionate or moral behavior.  If lions suddenly developed a communal conscience around the suffering of antelope, lions would not be long among us, and our intuition tells us that the least compassionate, the least ethical, the least moral beings are the one's that, in the absence of consequential restrictions on our behavior, rise to the top.  I am always surprised that people are surprised when it is discovered that people on the top actively advocated, or willfully ignored, the harm they were doing to others in their ascendency.  When Hamilton reminds us of the "indispensable necessity of government," he is reminding us of its inevitability.  Unless you are the one with the biggest club, you will be governed.  He is reminding us as well that "good" government is to be desired, in the multiple senses of the word good -- efficient government, compassionate government, moral government.        

If all governments are coercive, if all governments proceed through consequential restrictions on our behavior, then what we want is a government that is coercive in a "good"way.  The genius of our founding fathers resides within the articulation of our constitution.  In the parlance of the day, it is a meta-document, one that governs the government and, as such, transcends the particular actors within the government.  It articulates the fundamental law of the land, and all citizens, including those who serve in political office, especially those who hold political office, are subject to the restrictions it lays out.  There are, of course, many restrictions on the behavior of our lawmakers, and I cannot begin to deal with them all here, but one is of particular interest to the Citizens United decision, and that is the first amendment to the constitution:  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.  We are both free, and at liberty, to practice religion, to speak our mind, and in particular to speak our mind about the "goodness" of our government.  We are a free people, in short, because the government itself is subject to the rule of law, and it is in that sense that I make the somewhat paradoxical claim that we are a free people, that we are not subjects within a prison state, not for paucity of law, but for the existence of specific laws that place consequential restrictions on the government itself.

Contrary to popular belief, however, the First Amendment does not read, "yo! Chris!  You can say whatever you want, whenever you want, however you want, to whomever you want, and you will suffer no consequences if you do so."  In the first place, while we are free to speak our mind, and have the legal liberty to speak our mind, most of us recognize that the constitution does not, and really cannot, wholly protect us from the consequences of our own ill-advised speech.  I cannot, in other words, tell my boss that she is a pig-headed idiot and expect to remain long employed, and most employers, as a condition of employment, regulate and restrict speech in any number of ways, not least rather strict regulation about who can (and who cannot) speak to the press.  One cannot violate company policy and expect to remain long employed.  While in some absolute sense, I might be free to speak my mind, nearly all of us exist with consequential restrictions, whose point of origins are outside the government, where prudence might nevertheless suggest we say, "I am not at liberty to comment."

This is important to keep in mind for a couple of reasons.  Corporate structures have sway over individuals that exceed the powers of government and are, in many respects more immediately consequential.  Corporate structures are not in the least democratic.  They are autocratic.  The monetary contributions of a corporate structure to the war chest of a candidate, their corporate lobbying efforts, do not reflect the opinion of the people in any rational way, but rather the opinion and the economic interests of the narrow monied elite who control the corporation.  Neither the people generally employed by a corporation, nor the people at large, have much say in how that influence is applied to the political process, but the influence is nevertheless real.  A modern political campaign is hugely expensive, and a good deal of the expense goes into offensive advertising -- offensive often in the petty virulence of its content, but offensive too in the way that it attacks the opponent.  There are any number of things that render one vulnerable to attack, but all candidates are vulnerable to attack, and despite our objections, our desire for a more issue focused politics, more solution-based party platforms, the number and repetition of offensive ads counts has enormous sway.  The larger one's war chest, all the more offensive ads fill the public media, and all the more influence one has.   While I would not go so far as to say that the monied elite have bought and paid for our politicians, the fewer the restrictions on the gathering and use of campaign money, the more the interests of the politician and the monied elite are aligned.                                        

One wants to say this alignment between the interests of the politician and the monied elite is both real and corrupting, but it is corrupting only if you suppose the politician has moral and ethical obligations that extend beyond the economic interests of the monied elite, and that the politician would have pursued those moral obligations had it not been for the enormous expenses associated with the modern political campaign and the corrupting influence of the big donor, a corrupting influence extended by the Citizens United decision that opens the flood gates on campaign donations.  I want to make a somewhat subtler point, one that I have made elsewhere.  In the economic sphere, contrary to the social sphere, American conservatism would have us dismantle regulatory structures.  The argument, of course, is that excessive regulation impedes economic growth, and there may be some truth to that claim, but regulation also represents the moral and ethical interests of the people.  The fewer consequential legal regulations we have, the fewer the enforceable restrictions on the behavior of the actors, the more economic and other activity comes to resemble a Hobbesian war of all on all, a Darwinian survival of the fittest, where immediate individual interest trumps any on-going social interest, where the ends justify the means.  It is a world, not so much immoral as amoral, and its inevitable result is not so much the triumph of virtue, but the triumph of power within an autocratic, or perhaps oligarchic, prison state.  The demise of democracy will not come from an excess of regulation, but an excess of freedom, which will allow those with the means to exercise power over those without.  The demise of democracy will not come from deliberate and reasonable constraints on electoral politics, but the exaggerated influence that comes with wealth, the greater alignment of the interests of the monied elite and the politician.

The concentration of wealth in fewer and fewer hands is not so much the disease, but a symptom of the disease that will bring our representative republic into decline.  I doubt that Hamilton and the framers of the constitution could foresee modern media and the influence it would exercise on the tastes and habits and opinions of the populace.  When they prohibited government's ability to regulate or control speech, one suspects they had individual, in the proper sense of individual, speech in mind.  When they prohibited government's ability to regulate or control the press, one suspects they had something more like Tom Paine's pamphlets, not Fox News, in mind.  out of time .... more later ...