BUYING VOTES
MILLER, ARTHUR S.
BUYING VOTES Is politics the last free market BY ARTHURS. MILLER Twenty years ago, the Supreme Court of the United States plunged into the political thicket of legislative representation: One...
...It was a major move toward representative democracy...
...From 1953 to 1969, during Chief Justice Earl Warren's tenure, the Court was savagely attacked for favoring the disadvantaged—blacks, urban voters, criminal defendants...
...The Federal Election Campaign Act recognized the real differences between corporations and individuals by prohibiting contributions or expenditures in connection with Federal elections by "any corporation whatever...
...In perspective, the 1886 decision was really not all that remarkable...
...But corporate duties are statutory, not constitutional...
...For example...
...can even be required to work without pay to help build roads—despite the Thirteenth Amendment's prohibition of "involuntary servitude...
...That has been the persistent pattern throughout U.S...
...Senator Jesse Helms of North Carolina had a $6 million fund to use in his last campaign, far more than his opponent (who was blown out of the water...
...Electoral inequalities, Wright added, cannot be rectified politically...
...Chief Justice Burger found that ordinance to be an impermissible restraint on the right of expression because it unduly limited the right of association protected by the First Amendment...
...up to $5,000 to a multi-candidate committee, and up to $20,000 a year to a political party...
...and in California, a smoking ban for public places was trounced by a massive advertising blitz by the tobacco industry...
...They assume without evidence that voters can distinguish among the voices vying for attention in the campaign cacophony...
...The New Deal and Keynesian economics were constitutionalized...
...Richard Nixon's appointees to the Supreme Court—Chief Justice Warren Burger, and Justices Harry Blackmun, Lewis Powell, and William Rehnquist— often joined by Justices Byron White, John Paul Stevens, and Sandra O'Connor—have gutted recent campaign financing reforms, restoring "them as has, gits" to its traditional place as constitutional doctrine...
...In 1980, Jimmy Carter and Ronald Reagan each received $29.4 million in public funds, supposedly as the exclusive means of financing their campaigns...
...With a political economy dominated by supercorporations of enormous size and wealth and strength, the United States is increasingly held in thrall to decisions made by corporate oligarchies over which we have no control...
...Buckley and Bellotti embed the hidden underbelly of American politics—wide wealth disparities and thus inequalities in political power—into constitutional law...
...Justice Hugo Black once said, "has had a revolutionary effect on our form of government," The Fourteenth Amendment, designed to aid freed slaves, became a tool of the business class...
...To pretend, as does the Supreme Court, that AT&T or General Motors or Exxon or IBM are, in effect, natural persons for First Amendment purposes is to hide one's eyes to political reality...
...That provision is now under attack in the final assault on campaign financing reforms, challenged by a corporation in a case now in the judicial pipeline...
...Business still was protected, but the Supreme Court's historical constituency of the moneyed and propertied turned to overt manipulation of the political process...
...Only when hydraulic forces of social discontent boiled over in the Great Depression did the Court beat a reluctant retreat...
...The Justices wrote into constitutional law John Locke's assertion that the first duty of government was to protect property...
...A Massachusetts statute prohibited corporate expenditures on referendums not directly related to a company's business...
...Corporate free speech may be a "logical" extension of the Court's 1886 ruling that corporations are constitutional persons, but it also confers a privileged constitutional position on corporations, as comArthur S. Miller is professor emeritus of law at George Washington University and author of "Toward Increased Judicial Activism: The Political Role of the Supreme Court," to be published this fall by Greenwood Press...
...If we cannot have something approximating democracy, at least we should confront the fundamental hypocrisy of it all...
...It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere...
...Powell struck that down, asserting that the issue is not who speaks but the content of the speech itself...
...Individuals may make unlimited independent expenditures, for example, advocating the election or defeat of any Federal candidate...
...Throughout American history, the Supreme Court has been the ultimate guardian of wealth...
...Even if it were possible to curb the power corporations wield in elections, that would not do away with the nation's ills...
...Justice White, who saw through Powell's charade too, wrote that corporations "which have been permitted to amass wealth as a result of special advantages extended by the State for certain economic purposes [may constitutionally be prevented] from using that wealth to acquire an unfair advantage in the political process...
...By adopting a romantic view of the First Amendment and granting corporations free speech9 rights, the Supreme Court has ignored the impact of money on elections, asserting that it is the expression— the speech or writing— that counts, rather than the speaker or the writer, as if voters could not distinguish between contending voices In a little noted but important lecture delivered last January, Federal Appeals Judge J. Skelly Wright blasted the Supreme Court: "In the name of the very liberty in our Bill of Rights—the First Amendment— the present Supreme Court has put serious obstacles in the path of our society's development toward political equality through law...
...The integrity of the electoral process has been compromised, probably fatally...
...In 1975, Harvard Professor Samuel Huntington railed against what he called "the ungovernability of democracy" in a report to the Trilateral Commission—apparently because the demos were taking the rhetoric of American democracy seriously...
...Americans have the vote, but the oligarchs have the power: We are ever more dominated by supercorporations of enormous size and wealth and strength, and our government is in thrall to them Unlike corporations, individuals may participate under Federal law in a wide range of activities that give vent to their personal views...
...the great aggregations of wealth from using their corporate funds, directly or indirectly, to send members of the legislature to these halls in order to vote for their protection and the advancement of their interests as against those of the public...
...Other committees such as NCPAC and Jesse Helms's Congressional Club brought the total spent for Reagan (and the GOP) to an extra $11.4 million, while only a little over $100,000 was spent on behalf of Carter...
...too, in initiatives and referendum, where the power of money, employed through electronic and other advertising means, overwhelms the opposition...
...The formula still exists, but it has been nimbly sidestepped in a silent judicial counterrevolution...
...In two vitally important and . . . tragically misguided First Amendment decisions—Buckley v. Valeo and First National Bank v. Bellotti—the Court has given protection to the polluting effects of money in election campaigns...
...Whatever their size (and some have assets running into tens of billions of dollars), under the law they are considered to have the rights and privileges of natural persons...
...Powell insisted that corporations "may make their views public," but that was plainly misleading and disingenuous: A corporation, an artificial person, has no views or ideas by itself...
...In 1964, the Supreme Court asserted that "each and every citizen has an inalienable right to full and effective participation in the political processes...
...pared to human beings...
...Nevertheless, Congressional passage followed, and the ban has been in effect ever since...
...The impact of Bellotti (1978) was even worse...
...The outlawed statute did not affect the company's officers in their capacity as natural persons, but merely said they could not use other people's money—the shareholders'—in elections...
...As Judge Wright said, "The Supreme Court's decision in Bellotti appears to leave the political system powerless to defend itself...
...MILLER Twenty years ago, the Supreme Court of the United States plunged into the political thicket of legislative representation: One person/one vote became the law, and the "rotten boroughs" of American politics were swept away...
...The present Supreme Court has gone even further...
...As "private" governments, corporations do not have to abide by such constitutional norms as equal protection and due process, even though public governments do...
...He glossed over the real point—that human speech itself was not limited by the Massachusetts statute, which rather had struck at the use of corporate funds for electoral advocacy...
...Americans have the vote, but the oligarchs have the power, and the power is protected by the Supreme Court...
...The power of money talks in politics louder than ever...
...The Justices ignored what is obvious to all but the wilfully blind—that wealth speaks in stentorian tones, while most of us can, at best, whisper...
...And in January 1982, a 4-to-4 decision (sustaining the lower court) knocked down a $1,000 limitation on expenditures by political committees during Presidential elections...
...The Justices sat as "the first authoritative faculty of political economy in the world's history," said University of Wisconsin economist John R. Commons...
...They may contribute up to $1,000 to a candidate's campaign committee...
...can be compelled on pain of imprisonment to serve on juries...
...That transparent fiction...
...In sum, Social Darwinism was welded into the Constitution when the Court adopted laissez-faire economics—calling it "freedom of contract"—and protected business against nascent legislation on wages and hours and working conditions in factories...
...That is simply not true: It is axiomatic in politics that the more money a candidate has, the better are his chances of being heard—and winning...
...Popular vision, at least in recent years, has held otherwise...
...The Supreme Court has now read Huntington's fear of a "democratic despotism" into the Constitution...
...Humans have duties as well as rights under the Constitution, but corporations have rights only...
...That experiment is now ending...
...history...
...A natural person's First Amendment rights have largely been preserved...
...The one person/ one vote principle, as well as the campaign financing reforms of recent years, have been undercut by a series of decisions granting virtually unlimited power to heavy political spenders—in the name of free speech...
...That hacked a large chip out of the one person/one vote principle...
...By adopting a romantic view of the First Amendment, the Justices of the Supreme Court have ignored the impact of money on elections...
...About 100 yean ago—in 1886, to be exact—the Supreme Court amended the Constitution by judicial hat: By a divination known only to the Justices, corporations— disembodied economic entities—became constitutional persons...
...But the pretense that corporations are persons entitled to similar rights requires re-examination and burial...
...A natural person can be forced to fight and even to die for the nation...
...To comprehend how much mischief the Supreme Court has done in constitutional-izing the counterrevolution against one person/one vote requires some reference to history...
...Even so, "in matters directly affecting business, as in labor relations, anti-trust, and tax issues," Columbia University Professor Alan Westin observed in 1972, "the Warren Court has been simply an enunciator of the social capitalist status quo in American politics...
...The Court no longer was the ultimate economic policymaker...
...The right remains, but only as a hollow pretense...
...Commenting on Roosevelt's "betrayal," a frustrated Andrew Carnegie associate was heard to say: "We bought the son-of-a-bitch, and he didn't stay bought...
...Corporate officers remained free to speak and spend as much of their own money as they wished...
...The meaning is clear: One person/one vote is being constitutionally deep-sixed— not in so many words but bit by bit...
...In December 1981, it struck down a Berkeley, California, ordinance limiting to $250 contributions by individuals and corporations formed to oppose or support local referendums...
...Blithely ignoring the purposes of public financing, the Supreme Court effectively allowed three political committees to spend almost $4 million on behalf of Reagan...
...He noted, "A state grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity...
...Even Rehnquist could not go along with Powell's intellectual hocus-pocus...
...There Justice Lewis Powell confused—not inadvertently, because he represents the business class on the Court— a corporation with its owners and managers...
...In his dissent in Bellotti, Justice White warned that the Supreme Court's decision "clearly raises great doubt" regarding the Federal ban on corporate contributions and expenditures...
...Indeed, White predicted that the decision merely reserved "formal interment" of the prohibition for another day...
...Money is truly "the mother's milk of politics," as Jesse IJnruh of California observed...
...The only reform of real substance still intact is the prohibition of corporate funds directly to political candidates—and even that may soon be jettisoned...
...Even if it were possible to curb the power corporations wield in elections, that would be no panacea for the ills the nation faces...
...In 1905, President Theodore Roosevelt, himself the beneficiary of large corporate contributions, echoed Root's theme, calling for Congressional enactment of a corporate ban: "The fortunes amassed through corporate organization are now so large, and vest such power in those that wield them, as to make it a matter of necessity to give to the sovereign—that is, to the Government, which represents the people as a whole— some effective power of supervision over their corporate use...
...As early as 1894, Elihu Root called for such a prohibition: "The idea is to prevent...
...In the 1976 Buckley decision, a Court majority equated money with speech, holding that "the concept that government may restrict the speech of some elements of our society in order to enhance the relative speech of others is wholly foreign to the First Amendment...
...In the late Nineteenth Century, corporations were not only designated constitutional persons but became the primary beneficiaries of "substantive due process," a new notion that permitted judges to review not only the procedure by which Government acted—the historic meaning of due process—but also the content, the substance, of its actions...
...They assert that it is (he expression—the speech or writing—that counts, rather than the speaker or writer...
Vol. 46 • October 1982 • No. 10
