Corporate takeover

The Corporate Takeover of U.S. Democracy

Noam Chomsky

chomsky.info, January 24, 2010

(abridged version published in In These Times, February 2, 2010)
January 21, 2010 will go down as a dark day in the history of American
democracy, and its decline. The editors of the New York Times did not
exaggerate when they wrote that the Supreme Court decision that day
"strikes at the heart of democracy" by having "paved the way for
corporations to use their vast treasuries to overwhelm elections and
intimidate elected officials into doing their bidding" -- more
explicitly, for permitting corporate managers to do so, since current
laws permit them to spend shareholder money without consent.

Nor does Michael Waldman, executive director of the Brennan Center for
Justice at N.Y.U. School of Law, exaggerate when he writes that this
exercise of the radical judicial activism that the rightwing claims to
deplore "matches or exceeds Bush v. Gore in ideological or partisan
overreaching by the court. In that case, the court reached into the
political process to hand the election to one candidate. Today it
reached into the political process to hand unprecedented power to
corporations."

The Court was split, with the four reactionary judges (misleadingly
called "conservative") joined by Justice Kennedy in a 5-4 decision.
Chief Justice Roberts selected a case that could easily have been
settled on narrow grounds, and maneuvered the Court into using it for
a far-reaching decision that overturned precedents going back a
century that restrict corporate contributions to federal campaigns.

In effect, the decision permits corporate managers to buy elections
directly, instead of using more complex indirect means, though it is
likely that to avoid negative publicity they will choose to do so
through trade organizations. It is well-known that corporate campaign
contributions, sometimes packaged in complex ways, are a major factor
determining the outcome of elections. This alone is a significant
factor in policy decisions, reinforced by the enormous power of
corporate lobbies, greatly enhanced by the Court's decision, and other
conditions imposed by the very small sector of the population that
dominates the economy.

A very successful predictor of government policy over a long period is
political economist Thomas Ferguson's "investment theory of politics,"
which interprets elections as occasions on which segments of private
sector power coalesce to invest to control the state. The means for
undermining democracy are sure to be enhanced by the Court's dagger
blow at the heart of functioning democracy.

Some legislative remedies are being proposed, for example requiring
managers to consult with shareholders. At best, that would be a minor
limit on the corporate takeover of the political system, given the
very high concentration of ownership by extreme wealth and other
corporate institutions. Furthermore any legislation would have been
difficult to pass even without this new weapon provided by the Court
to unaccountable private concentrations of power. The same holds, even
more strongly, for a Constitutional amendment that Waldman and others
think might be necessary to restore at least the limited democracy
that prevailed before the decision.

In his dissent, Justice Stevens acknowledged that "we have long since
held that corporations are covered by the First Amendment." That
traces back to the time when the 1907 Tillman act banned corporate
contributions, the precedent overturned by the Court. In the early
20th century, legal theorists and courts came to adopt and implement
the Court's 1886 (Santa Clara) principle that these "collectivist
legal entities" have the same rights as persons of flesh and blood, an
attack on classical liberalism that was sharply condemned by the
vanishing breed of conservatives as "a menace to the liberty of the
individual, and to the stability of the American States as popular
governments" (Christopher Tiedeman). In later years these rights were
expanded far beyond those of persons, notably by the mislabeled "free
trade agreements."

The conception of corporate personhood evolved alongside the shift of
power from shareholders to managers, and finally to the doctrine that
"the powers of the board of directors ... are identical with the
powers of the corporation." Furthermore, the courts determined that
these state-established "natural entities" must restrict themselves to
pursuit of profit and market share, though the courts did advise
corporations to support charitable and educational causes, or an
"aroused public" might take away the privileges granted to them by
state power.

As corporate personhood and managerial independence were becoming
established in law, the control of corporations over the economy was
so vast that Woodrow Wilson described "a very different America from
the old, ... no longer a scene of individual enterprise ... individual
opportunity and individual achievement," but an America in which
"Comparatively small groups of men," corporate managers, "wield a
power and control over the wealth and the business operations of the
country," becoming "rivals of the government itself." In reality,
becoming increasingly its masters, a process that has extended since,
and is now given even greater scope by the Roberts Court.

Justice Kennedy's majority opinion held that there is no principled
way to distinguish between media corporations and other corporations:
that is, no principled way to distinguish between corporations that
are bound by law to restrict themselves to gaining profit and market
share from those that in principle have the role of providing news and
opinion in an unbiased fashion. Media corporations have indeed been
criticized for violating this trust, but never so severely as in
Kennedy's analogy.

The Court decision followed immediately upon another victory for
wealth and power, the election of Republican candidate Scott Brown to
replace the late Senator Edward Kennedy, the "liberal lion" of
Massachusetts. This was depicted as a "populist upsurge" against the
liberal elitists who run the government. The voting data reveal a
rather different story. Very high voting in the wealthy suburbs
carried Brown to victory, thanks to lower turnout in the urban areas
that are largely Democratic. "55% of Republican voters said they were
`very interested' in the election," the Wall St. Journal reported,
"compared with 38% of Democrats. It was indeed an uprising against
Obama's policies: for the wealthy, he was not doing enough to enrich
them further, while for the poorer sectors, he was doing too much to
achieve that end.

Doubtless there was some impact of the populist image crafted by the
PR machine ("this is my truck," "army guy," etc.). But this appears to
have had only a minor role. The popular anger is quite understandable,
with the banks thriving thanks to bailouts while unemployment is above
10% and in manufacturing industry at the level of the Great
Depression, one out of six unemployed, with few prospects for
recovering the kinds of jobs that are lost, with the increasing
financialization of the economy and concomitant hollowing out of
productive industry.

Brown presented himself as the 41st vote against health care -- the
vote that could undermine majority rule, by virtue of the current
Republican tactic of regular resort to filibuster to enable a
unanimous minority bloc to bar any legislation put forth by the
administration, a novelty in American politics. It is true that
Obama's health care program was a major factor in the election, and
the headlines are correct when they report that the public is
increasingly turning against it. The poll figures explain why: the
bill did not go far enough.

A Wall St. Journal/NBC poll found that 64% of voters disapprove of the
Republicans' handling of health care (55% disapprove of Obama's
handling). Among Obama voters who voted for Brown, 60% felt that the
health care program did not go far enough (85% among those who
abstained). In both categories, about 85% favored a public option.
These figures accord with other recent polls that show that
nationwide, the public option was favored by 56%-38%, and the Medicare
buy-in at age 55 by 64%-30%; both abandoned. 85% believe that the
government should have the right to negotiate drug prices, as in other
countries; Obama guaranteed big Pharma that he would not pursue that
option. Large majorities favor cost-cutting, which makes good sense:
US per capita costs for health care are about twice those of other
industrial countries, and health outcomes are at the low end. But
cost-cutting cannot be seriously undertaken with largesse showered on
the drug companies, and health care in the hands of virtually
unregulated private insurers, a very costly system unique to the US.

The Supreme Court decision raises significant new barriers to
overcoming the serious crisis of health care, or to addressing
seriously such critical issues as the looming environmental and energy
crises. And the damage to American democracy can hardly be
overestimated.

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