Independence Day in the year of the corporate citizen

The U.S. Supreme Court has been busy in its laboratory in 2010, creating a new class of citizen with dynamic new powers. At first, it seemed that citizen might be the corporation, but recently we’ve learned more about what the court has in mind.
When the justices struck down the ban on corporate funding for political campaigns in January– ruling that corporations enjoy the First Amendment right to free speech–dissenting Justice John Paul Stevens suggested we might as well give corporations the vote:
Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”
Now it’s the Fourth of July and corporations still don’t have the vote, but a clearer picture of the new supercitizen has evolved since Citizens United vs. Federal Election Commission rang in the New Year.
Late last month, corporations became stronger shields for their executives thanks to Supreme Court rulings in favor of former Enron president Jeffrey Skilling and former newspaper tycoon Conrad Black. Those rulings weakened the federal fraud statute that empowered prosecutors to go after executives who fail to provide “honest services.”
Skilling was convicted of falsifying financial reports to prop up Enron’s share price. Black was convicted of paying himself fees that should have gone to his company. The Economist called these rulings “pro-business,” but they’re only pro-funny-business. They are less triumphs for corporations than for corporate executives, for the losers in both of those cases were also members of corporations: their shareholders.
If you think about it, corporate executives also gain the most from the Citizens United ruling. If you’ve ever owned stock and, say, endured a mandatory buyback, you know exactly how much power you hold when you hold a few shares.
Who is likely to decide which candidates a corporation supports? The chairman and/or the CEO, both of whom have just been liberated from most senses of what it means to provide “honest services” to the corporations they serve.
As citizens go, the corporation is an oddball. As Justice Anthony Kennedy wrote in January, “like individuals, [they] contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster.”
But as Justice Stevens wrote, “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it.”
The corporate executive, however, enjoys the best of both worlds. He’s a tangible human with certain inalienable rights who sits at the controls of an intangible entity that both extends his power and shields him from risk.
Although he makes more money than he could possibly need, he can now spend “other people’s money,” as Harvard Professor Laurence Tribe described it, to support political candidates. And he can indulge in dishonest service as long as he stops short of bribes and kickbacks, the two brands of dishonesty the justices allowed to stand.
I say “he” because only 3 percent of America’s richest corporations are helmed by women.
It’s the corporate executive who has emerged in 2010 as the American supercitizen. Him.
He goes through life relatively unperturbed by those who would rein him in. When the left isn’t tilting against capitalism generally, it’s tilting against corporations, entities as tangible as Quixote’s giants. Intangibility makes those giants powerful avatars for the executives who control them.
Leftists can attack intangible entities all day without landing a blow, like Charlie Brown going after the football held by Lucy van Pelt.
Here’s Ralph Nader taking a run at the football: “Autocratic global corporations are deep into strategic planning. They openly and confidently strive to control our jobs; our environment; our political and educational institutions; our food, drugs, and other consumptions; our savings; our childhoods; our culture; even our genetic futures. Toward these ends, they incessantly move to control our elections and our governmental institutions.”
Meanwhile, Tony Hayward is at the yacht races.
Here’s Barack Obama on the Citizens United ruling: “It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”
Obama knows the CEOs who run those corporations are mostly Republicans, and the first test of their new freedom of speech will arrive during this year’s mid-term elections. Those elections will be seen as a referendum on Obama, but they may be a better measure of the Supreme Court’s influence.
Meanwhile, Obama himself is often portrayed as a tool of the corporations. Everyone from Ralph Nader to Ron Paul thinks so.
Obama bailed out the big banks instead of letting them fail. He bridged the health-care gap by stretching corporations across it. He’s not above taking a run at Lucy’s football now and then, but sometimes he picks up the ball and runs with it.
Might there might be some wisdom in that?
We already known that tilting against corporations doesn’t much affect the supercitizens who run them. We know that restraints imposed by Congress may be un-imposed by the Supreme Court. It’s unAmerican to rein in the corporate executive, who is entitled to life, liberty and the pursuit of profit. And everyone, even on the left, is afraid to hurt the “small businessman,” the corporate mini-me who is relentlessly described by politicians as the backbone of America.
It seemed unlikely that any president–even a putative Ralph Nader–would actually wage war against corporations, much less win such a war, even before the Supreme Court freed corporations to spend openly on political campaigns.
The corporation is here to stay, don’t you think? and the supercitizens who run them are only becoming richer and more powerful. We the people have two choices, it seems: we can try to kick the football again, or we can pick it up and run with it.
The anthem of 21st Century America could be this patriotic ballad from the last revolution. We just have to change one line, from “Got a revolution” to “Start a corporation”:
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