Jim Leach Chairman, National Endowment for the Humanities
These are tough times and everyone knows it. The mood is sour. The tea party and the Occupy Wall Street movement exemplify public angst. There is a sense that the American people have been let down by partisan politics and Wall Street deceit.
Management of debt has become the dominant problem for the American family, the federal government and most states and communities. There is a vibrant, not always well articulated, debate about how or if the economy can be stimulated from Washington. Traditional Keynesian economists suggest that when government is faced with an economic downturn or national security challenge, it should press the fiscal levers. Acolytes of Milton Friedman and the Viennese-born economist Friedrich Hayek, on the other hand, argue caution, especially on raising taxes.
Both sides of the policy debate are confronted with more limited options as the total debt burden climbs. At some point debt accumulation becomes unmanageable. No economist knows where the breaking point is because in the final measure nation-states operate in a market economy. It is public confidence that determines the marketability and pricing of debt. What we do know is that the costs of government are bound to escalate as debt obligations place an increasing claim on national resources and as a higher proportion of the population reaches retirement age.
In addition, we know that the hangover from this past decade’s fiscal decision-making cannot be ducked. For the first time in our or perhaps any country’s history, taxes were cut in wartime. No shared economic sacrifice was called for. The cost of military intervention in two Islamic countries – our two longest wars – as well as the cost associated with attacks from the air in four others has been passed on to future generations. The result is that a year ago we raised approximately 15 percent of the GDP in taxes and spent 25 percent. These are unsustainable figures.
This brings us to the increasingly surreal world of Washington politics and the fiscal decisions that affect all elements of the federal budget. What is so troubling is that the judgmental differences that are worthy of respect are exacerbated by partisanship that undercuts the capacity of governing bodies even to make decisions. Too many are looking at politics as a game to win rather than challenge to lead.
As most of you are aware, the eyes of Washington are on a group of twelve legislators mandated to come up in the next few weeks with a plan to narrow the deficit by at least $1.2 trillion over the next decade. Many economists on both sides of the Keynes-Friedman divide are suggesting that steeper out-year deficit reductions, $3 trillion or more, should be the goal. Such a sum will inevitably involve greater constraints on domestic programs which already are at their lowest levels relative to the GDP in decades. But this level of deficit reduction can only realistically be achieved by also reforming entitlement programs—i.e., Social Security and health care —and/or raising greater revenue, perhaps to the 18 ½ percent of GDP range that hallmarked the 1980s.
Under President Reagan, the last President to modify the underpinnings of Social Security, a combination approach was taken: the age of retirement was gradually raised, the formula for cost of living raises was adjusted slightly downward, and the income levels on which Social Security taxes are levied were moved upwards. The judgment in Congress and the Executive branch at the time was that this combination approach entailed fair and balanced sacrifice on the part of working Americans and their employers who share the burden of paying Social Security taxes, and retirees who depend on the dedicated transfer of tax dollars. Of all our challenges, the retirement income aspect of Social Security remains the most manageable. Unfortunately, in today’s politics it is unclear whether a balanced effort akin to the kind arrived at in the Reagan-Tip O’Neill era can be repeated.
The bigger fiscal trauma is health care, a subject upon which I am far from an expert. But, it is self-evident that there are equity problems in health-care delivery and that the lack of discipline in health-care costs is weakening the overall economy. We are the only country in the world in which health-care costs are a double digit percentage of the GDP—now approaching 17 percent—a figure which contrasts starkly with the 5 percent of GDP that health care represented when John F. Kennedy assumed office.
I mention this subject and these figures because when defense spending and interest on the national debt are excluded, it is Social Security and health care that are the principal cost drivers of the federal budget, and it is Medicaid that is the single most bedeviling cost element in the appropriations process of most state governments. I also mention it because many businessmen will tell you that it is health-care costs rather than salary considerations that often drive corporate decisions to outsource jobs.
These seemingly extraneous macro-economic considerations are noted to underscore the fragility of our country’s economy and our government’s fiscal picture. The assumption that jobs are the number one issue for most Americans is valid; a conclusion, however, that the liberal arts are not critical to job creation is mistaken. Indeed, such a conclusion could too easily lead to policy prescriptions that undercut American competitiveness and the national interest itself.
One of the myths of our times is that the humanities are good for the soul but irrelevant to the pocket book. Actually, they are central to long-term American competitiveness.
It is true that many jobs, such as in the building trades, are skill based, but job creation itself requires an understanding of community and the world. Change and its acceleration characterize the times. With each passing year jobs evolve, become more sophisticated. Training for one skill set may be of little assistance for another. On the other hand, studies that stimulate the imagination and nourish capacities to analyze and think outside the box are well-suited to the challenges of change. They make coping with the unprecedented an achievable endeavor.
What is needed in a world in flux is a new understanding of the meaning of the basics in education. Traditionally, the basics are about the three “R’s,” which in Iowa City are sometimes defined as “readin, ’ritin, and ’restlin.” However defined, they are critical. Nonetheless, they are insufficient. What are also needed are the studies that provide perspective on our times and foster citizen understanding of their own communities, other cultures, and the creative process.
To understand and compete in the world we need a fourth “R,” what for lack of a precise moniker might be described as “reality”—which includes not only relevant knowledge of the world near and far but the imaginative capacity to put oneself in the shoes of others and creatively apply knowledge to discrete endeavors.
Rote thinking is the hallmark of the status quo. Stimulating the imagination is the key to the future.
As individuals we all try to make sense of our own odysseys through life. Our “universe” is small in relation not only to the solar system but the communities in which we live. But wherever we might be, we are affected by global events, whether related to the challenges of national security or the global hiring hall. In this insecure geo-political environment, a deeper comprehension of the fourth “R” (reality) has never been more important. It is essential to revitalizing the American productive engine and inspiring thoughtful citizenship.
A skeptic once suggested that the humanities are little more than studies of flaws in human nature. Actually they uplift on the one hand and warn on the other. The power of a few to commit acts of societal destruction and the contrasting capacity of a few to precipitate uplifting change has grown exponentially in the past century.
Two contrasting examples provide contemporary illustrations. Azar Nafisi, the author of Reading Lolita in Tehran, points out that little strikes greater fear in the hearts of despots than the humanities. They are anathema to tyrants because they liberate the mind. It is not surprising that in the wake of civil unrest several years ago, Mahmoud Ahmadinejad declared that humanities courses in Iran must be purged to reflect only government-approved dogma.
To watch what appears to be an historic progressive revolution take shape in Cairo’s Tahir Square this past year is to understand why oppressors have such reason to fear the humanities. To them, the danger is self-evident: a free-thinking people will be tempted to lead their leaders. One liberated mind, a young college graduate, Gigi Ibrahim, was interviewed on the Daily Show about why she became involved in the protests against her government. The answer she gave Jon Stewart was that she was inspired by taking a class at the American University in Cairo on social issues and reform movements. Ideas manifested themselves into ideals, and history, she found, provided the power of example. Individuals with convictions could stand up to tyranny.
Precedents can be instructive, but less so when the world in which we live has so many unprecedented problems, political as well as economic. Civilization, for instance, is on trial from two extremes: the looming prospect that weapons of mass destruction could be unleashed, and the reality that the more advanced and open a society, the more vulnerable it is to terrorism.
Seldom, therefore, has it been more important for individuals in public life to appeal to the better angels rather than the baser instincts of the body politic. Whether the issues are social or economic, domestic or international, the temptation to appeal to the darker side of human nature must be avoided. The stakes are too high. The duty of public officials is to inspire hope rather than to manipulate fear. The health of nations is directly related to the temperance of statecraft.
It is also related to the depth of knowledge applied to decision making. This is no time to put the brakes on humanities studies or toy with anti-intellectualism. In reviewing, for example, our decision to go to war in Iraq, it is apparent that inadequate attention to cultural issues may have cost lives as well as money. Yes, there was an “intelligence” failure related to misjudgments about Iraq’s nuclear capacities. But the greatest “intelligence” failure was our lack of understanding of the region, its people, and their religions.
For instance, despite having gone to war in the Persian Gulf a decade earlier, Congress and Executive branch policy makers understood little of the Sunni/Shi’a divide when 9/11 hit. Likewise, despite the French experience in Algeria and the British and Russian in Afghanistan, we had little comprehension of the depth of Islamic antipathy to foreign occupation. Nor, despite the tactics of a Daniel Boone-style patriot named Francis Marion, the Swamp Fox, who attacked British garrisons at night during the Revolutionary War and then vanished in South Carolina swamps during the day, we had little sense for the effectiveness of asymmetric warfare.
Policy makers have to recognize that political traumas of the moment are surface issues that can be understood only in relation to underlying cultural bases: the customs, history, literature, philosophy, religion, and sometimes myths of a country or people. Such considerations are critical to devising approaches to avoid conflict, to prosecuting a war if conflict cannot be avoided, and to ending any conflict in such a way as to lessen the prospect of a similar conflict emerging again.
For decades military strategists have wisely talked of the need to think through the hazards of exit strategies when war is contemplated. But concerns about how to end a war seldom get more than passing attention when planning for war commences. To the degree exit strategies are initially considered, the theoretical planning generally encompasses institutional and logistical concerns more than cultural considerations. Yet, to lead the world in this century it is the human condition, the culture and history of countries, the minds and souls of peoples that are going to have to be better understood.
National security involves more than military preparedness. It begins at home, not only in relation to the making of policy judgments but with regard to the respect or lack thereof accorded diverse cultural groups. The advancing of mutual respect is central to relations between states and peoples. As an immigrant society with family ties to every country across the globe, we are watched closely. How we speak about others and assimilate elements of our own society affect whether peoples around the world view us as a beacon of hope and opportunity or a wellspring of prejudice.
For many, concern for civility seems either unimportant or sanctimonious. Actually, civility is an enduring virtue of civilized society. At issue is how individuals inter-relate in community and how societies make decisions that can affect life on the planet.
For the ancient Greeks, civility involved a bond of polis, a sharing of principles and a commitment to live justly within a city-state. Today, civility remains the heart of civilization. It provides the prospect of avoiding, dampening, even resolving conflict, whether in the neighborhood or in the international arena.
Civility is not simply or principally about manners. It doesn’t mean that spirited advocacy is to be avoided. Indeed, argumentation is a social good. Without argumentation there is a tendency to dogmatism, even tyranny. What civility does require is a willingness to consider respectfully the views of others, with an understanding that we are all connected and rely on each other.
Seldom is there only one proper path determinable by one individual, one political party, or one nation-state. Public decision making does not lend itself to certitude. That is why humility is a valued character trait and why civility is an essential component of civil society.
In an American setting, citizens should be expected to disagree vigorously with each other and take their differences to the ballot box. But the outcome that matters most in the wake of an election is whether, despite rival ambitions, the prevailing candidates have the fortitude to work together for the national interest. A government of, by and for the people is obligated to conduct the nation’s business in a manner that respects contrasting views and those who hold them.
If all men are created equal, surely it follows that all citizens are entitled to have their views respectfully considered in the public square and, after elections, to have the representatives they choose be open minded and in a position to reflect credibly the judgments of their constituents in governmental decision making.
Politics has high and low moments. Higher moments have been characterized by expansions of political tolerance; lower moments by debilitating political discourse, often accentuated with racial, ethnic, and religious overtones.
In the history of the Republic, there have been more troubling challenges than we have witnessed in recent years, and in world affairs, more egregious words have incited mankind to greater misdeeds than America has experienced. Nevertheless, the caustic labeling of public officials as “fascist” or “communist” and the polemical toying with history-blind radicalism—the notion of “secession” —is deeply troubling.
One might ask, What problem is there with political hyperbole? Plenty. Words reflect emotion as well as meaning. They clarify – or cloud – thought and energize action. When rancorous rhetoric is manipulated to divide the American family, the logic becomes the warning. If 400,000 American soldiers gave their lives to defeat fascism, if tens of thousands were lost holding communism at bay, and even more died in a civil war to define and preserve the union, isn’t it a citizen’s obligation to apply perspective to words that contain warring implications.
There is, after all, a difference between holding a particular tax or spending or health-care view and asserting that an American who supports another approach or is a member of a different political party is an advocate of an “ism” of hate that encompasses gulags and concentration camps. Some frameworks of thought define rival ideas; others, enemies.
The poet Walt Whitman once described America as an “athletic democracy.” What he meant was that politics of his era was rugged and vigorous and spirited. Anti-immigrant, especially anti-Catholic, sentiment and toleration for human degradation implicit in slavery characterized more than a little of nineteenth-century American thought and many of our social structures.
Indeed, violence was part of nineteenth century political manners. In 1804, Vice President Aaron Burr shot dead our greatest Secretary of Treasury, Alexander Hamilton, for suggesting that Burr was “despicable,” in a duel which might be described as a brazen act of legalized incivility. Half a century later, Congressman Preston Brooks of South Carolina wandered over to the Senate floor and caned unconscious Senator Charles Sumner of Massachusetts, who was holding forth on the immorality of the Kansas-Nebraska Act and its sanctioning of slavery in an expanding part of the union.
So, uncivil behavior is nothing new. What is new are transformative changes in communications technology, in American politics, and the issues facing mankind.
While not as passionate a rupture as existed in the nineteenth century, evidence is mounting and polls confirm that America has entered a period of intensifying polarization. Citizens have lost confidence in many institutions of society and are becoming more disrespectful of their leaders, other faith systems, and each other.
Feisty position-taking in the media reflects angst-ridden views of the public and, in turn, gives license to socially divisive assertions across the land. This reinforcing phenomenon—a press increasingly pandering to political constituencies and constituencies increasingly polarized from each other—accentuates attitudinal rifts in the body politic and invigorates the activist wings of the political parties.
In legislative primaries where a small percentage of the electorate, usually less than 5 percent, control the choice of candidates for the two major parties, the ideological edges routinely overwhelm the citizen center. The consequence of nominating candidates at the edges of the political spectrum is particularly traumatic as legislative bodies become bereft of voices reflecting the concerns of middle American political and social thought. The capacity of legislators to reach common ground is brought into doubt when money concerns and partisan pressures to maintain ideological consistency are dominant considerations.
Compromise may have once been the art of politics, but intransigence is the new art of political survival. If an elected official in today’s environment chooses to compromise on an issue, that official becomes vulnerable to a primary challenge. Activists will insist that a “real” liberal or “real” conservative represent their preferred party. The inevitable result: an increase both in radicalism and the frequency of leadership swings.
In Western civilization’s most prophetic poem, The Second Coming, William Butler Yeats suggests that the center cannot hold “when the best lack all conviction and the worst are full of passionate intensity.” Yeats was reacting to the seemingly senseless carnage of World War I trench warfare. But the chaos of modernity has produced a crisis of perspective as well as values that give his words contemporary relevance.
Many of today’s traumas stem from the fast-changing nature of society, which has so many destabilizing elements. But some of the responsibility falls at the feet of politicians and their supporters who use inflammatory rhetoric and irresponsible advertising to divide the country. Candidates may prevail in elections by tearing down rather than uplifting, but if elected, they cannot then unite a splintered citizenry.
Uncivil speech dispirits the soul of society. Nevertheless, more insidious than the pervasive public incivility of many modern campaigns is the polite, private incivility that is commonplace on Capitol Hill. The electoral process, after all, is about more than what happens on Election Day. It is also about what happens between elections. To paraphrase Clausewitz, law making is the continuation of politics in another forum. Electoral politics never stops. It is just interrupted every year or two to count ballots.
Civility and politeness are not synonymous. Indeed, in the corridors of the Capitol complex, polite words are sometimes more problematic than raucous ones.
Example. Lobbyist to legislator: “Congressman, as you know, we maxed out for you in the last election and we and our allies sure hope to be able to more than match that support this Fall. But please understand that tomorrow a bill of importance to us is coming to the floor and we would sure appreciate your support. And, by the way, how are your wife and kids?” Politely stated, but there is no reference to the common good. Instead, coercively implied is an on-going, quasi-contractual relationship between an interest group and a public official.
These implicit uncivil contracts can be coercive even if never discussed because corporate power, newly magnified by the 2010 Citizens United v. Federal Election Commission Supreme Court ruling, can so easily reward a candidate or inflict political retribution. On the assumption, for instance, that politicians have an instinct for political survival, a key component of which is a desire to raise campaign revenues and suppress opponent treasuries, why in a corporatist political system would a politician want to stand up to the drug companies or gambling interests or investment banks if corporate monies can quickly be shoveled into the political trenches?
Over our tumultuous history, the Supreme Court has generally been at the forefront of advancing justice and protecting the rule of law. But from time to time our politics and the Court have been out of step with our deepest ideals. For almost nine decades after our Founders signed the Declaration of Independence affirming that all men are created equal, a number of states sanctioned slavery, and until the Civil War the Supreme Court formally upheld this egregious assault on human dignity.
Brazenly, in Citizens United, the Court employed parallel logic to the syllogism embedded in the most repugnant ruling it ever made, the 1857 Dred Scott decision. To justify slavery, the Court in Dred Scott defined a class of human beings as private property; to magnify corporate power a century and a half later, it defined a class of private property (corporations) as people. Ironies abound. Despite overwhelming evidence to the contrary, the mid-nineteenth-century Court could see no oppression in an institution that allowed individuals to be bought and sold. In the 2010 Citizens United ruling, despite overwhelming evidence to the contrary, the Court implied that corporations were somehow oppressed—in this case alleged to be censored—and therefore should be freed to buy political influence.
How are corporations oppressed? Do corporate leaders not have free speech and the right to give campaign contributions like all other citizens? Have they and the political action committees (PACs) that they control not already been over-empowered to infuse billions in the political process? Is it an accident that as the influence of moneyed interests has increased in American politics, the gap between rich and poor has widened?
To advance the sophistic argument that more money in campaigns equates to more democracy, the Court had to presume that money is speech and that a corporation is an individual. Where in any dictionary or in any founding documents are these equivalencies made?
In pejorative jargon, money may “talk,” but precisely defined, money is a medium of exchange, a measure of value, or a means of payment. In the manner it is used in politics it can be considered a campaign contribution. It is not “speech” in terms of what any strict constructionist could conceivably believe the First Amendment addresses.
A corporation is an artificial creation of the state, which in turn is a creation of the people. To vest with Constitutional rights an inanimate entity is antithetical to democratic values. It makes mockery of our individual rights heritage. While corporations as a “legal fiction” have been given analogous status to individuals in commercial law, citizenship rights are of a very different nature. A corporation cannot vote or run for office. The inspiring words of our Founders were about free men born with inalienable rights. It is they who speak. It is they who can assemble. It is they who are considered equal among each other.
To hold that a corporation is a person with citizenship rights simply doesn’t square with the Declaration of Independence. All men may be created equal in relation to each other, but not necessarily in relation to corporations or, under Citizens United, in relation to how corporations may empower some individuals relative to others. There is great inequality between corporations, no equality of individual and corporate “personhood,” and no equality of individuals when one with many corporate ties may be more able to influence decision-making than one with none or just a few.
Multiple personality disorder may from time to time seem to describe a candidate in regard to stances taken, but it never was intended to define the political system itself. More money is not more democracy.
Corporate larceny is at issue. So are democratic values. To presume that corporate money can be construed as “speech,” that speech for many will be coerced rather than free. After all, to tap for political purposes the assets of shareholders or by implication union members, more than a few of whom can be expected to hold different political judgments than management or union stewards, is a “taking” of their assets, a perversion of their “speech,” a diminution of their political rights.
It can, of course, be assumed that a head of a corporation is best positioned to know how to advance the corporation’s interests in commerce. Yet it is also the case that when individuals, whether within or outside commerce, make political judgments, a variety of calculations inevitably take place, some of which can be expected to have little to do with corporate concerns. For instance, a corporate or union head, as most other citizens, may be affected in his or her decision on how to spend shareholder or union assets by whether a candidate shares a compatible view on social issues such as abortion or family planning, or has gone to the same high school or college, or belongs to the same country club, or shares the same military background, religion or foreign policy perspective, or has been done a personal favor. For similar non-commercial or perhaps competitive commercial reasons—i.e., the holding of shares in other corporations that have different vested interests—shareholders and union members may wish to support candidates different from those designated by a corporate or union head. Particularly symbolic may be the situation when a union pension fund, for instance, may be invested in a corporation that may attempt to advocate anti-union positions in Congress.
The only way a corporation can in a political sense be analogized to an individual relates to its hierarchical structure. In the corporate world one decision maker or, at most, a collective few are accountable for how corporate resources are allocated. Authorizing corporate leaders to distribute shareholder assets—i.e., other people’s money—in political campaigns thus empowers small numbers of insiders. There is no escaping the reality that corporate personhood is a linguistic gyration that pushes American politics in an oligarchic direction. Nor is there escaping the notion that the only corporate justification for spending corporate assets in this way is that they are somehow a good investment for shareholders – i.e., that they amount to the seeking of a political quid pro quo. Could it be that the Court’s definition of protected “speech” might be the public’s perception of influence buying?
Could it also be that corporate advertising for and against candidates is often at the cutting edge of social divisiveness because accountability for such advertising is often obfuscated?
Corporate activity may be affected by political action but this does not mean that political activity should be absorbed by corporate action. To integrate these fundamentally different fields defines corporatism: the control of political institutions by large interest groups. Such a system may facilitate the giving of financial aid, such as subsidies or tax breaks, to corporations – i.e., corporate welfare. It may also at times reflect and always foreshadow a system where profits are privatized and risks socialized – i.e., corporate socialism. But it has little to do with individual rights or free market competition.
At our founding, property-less people as well as women and slaves were denied the right to vote, and there was an original Constitutional acceptance that slaves could be considered three-fifths of a person for legislative and Electoral College apportionment. But none of our founders ever advanced the notion that one individual could be several persons and have magnified influence based on control of corporate assets.
The arc of our history that has bent toward justice has suddenly with this Court decision twisted back to that part of our Constitutional heritage that was self-evidently unjust. Property considerations have again become accentuated in a key aspect of citizenship, the injustice of which weakens the links between government and the people.
Granting to corporations the right to muscle further into the political fray is complicated by the fact that shareholding by sovereign wealth funds and foreign individuals in American corporations is substantial and growing. Foreign governments, citizens and corporations are currently barred from making political contributions. Under the new ruling, they now will be able to influence, explicitly or implicitly, how American institutions exercise political power, whether through companies which they control as U.S. incorporated subsidiaries or through stock owned in American companies on or off public exchanges.
Corporatist politics has other ramifications of a very different dimension than our founders considered. When our Constitutional system was established, the founders assumed that the individuals elected to Congress would come from many different backgrounds and that they would be prepared to represent vigorously their state, its interests and its people. A consequence of corporatism is the nationalization of local elections. Candidates across the country become indebted to the same corporate groups. Farm state members, for example, increasingly find that their campaign coffers are filled by oil companies and out-of-state unions, causing indebtedness to groups that may not reflect the same views as the majority of voters.
Secondary effects apply to political parties. Because of the new financial empowerment provided unions as well as corporations under Citizens United, the Democratic Party may become more like the old, union-dominated Labor Party in Great Britain and the Republican Party less like the pro-environment, trust- busting party of Teddy Roosevelt. The irony would remain, however, that corporate power often operates with one non-partisan dimension. Corporations have a tendency to align with those in either party who hold positions that may affect issues of direct concern to their interests. Corporations are thus generally blind to the party affiliation of those they support in legislative committees that have jurisdiction over their interests. Surprising to some, Citizens United thus increases the likelihood that financial interests will increase their donations to both sides of banking-oriented committees; commodity groups to both sides of the agriculture committees; the military-industrial complex to both sides of the armed services committees, etc. Ideology has its place, but power in the commercial sphere supports power in the political domain.
As a candidate who campaigned seventeen times for Congress, eschewing PAC and out-of-state contributions, I can attest that a tertiary effect of corporate giving is that it diminishes citizen respect for the political system, their desire to vote and even their willingness to engage in the political process by giving small contributions. Over the years, for example, hundreds of constituents would come up to me on the street or at Rotary or Farm Bureau meeting and say that they had sent a check for $20 or $30 to my campaign that they wouldn’t otherwise have if I had not adopted a policy of not accepting PAC funds. They understood that it was of marginal significance to make a modest contribution to a candidate if that candidate receives hundreds of thousands of dollars from corporate groups.
It is no accident that corporate muggings occur in American politics. Nor is it an accident that many Americans, from tea party advocates to middle class home owners to the Occupy Wall Street movement, believe that they are not being listened to, that vested interests hold an improper, behind-the-scenes sway in the political life of our country.
Nuances aside, the main casualty of the Citizens United ruling is idealism.
At a time when the country needs to pull together, the Supreme Court has chosen a path to magnify public cynicism. It has determined to protect moneyed influence peddling that obscures citizen speech and eviscerates the capacity of citizens and policy makers to weigh competing views in balanced ways.
Theoretically, the consequences of the Court’s recent ruling could partially be obviated by legislative tinkering. But even if Congress can reach consensus on a legislative approach, the Court could strike down anything meaningful based on the manufactured logic of the Citizens United ruling. Lacking any analysis and defying contrary evidence, the Court’s 5-to-4 majority asserted that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
The implications and reach of this presumptuous conclusion are extraordinary. For instance, as a former legislator I favored moving American politics more in the direction of British electoral rules. Accordingly, I used to introduce legislation to limit campaign contributions to small individual contributions matched, up to a point, by public funds. And to rectify a provision in a prior Court ruling, Buckley v. Valeo, which held, also on shaky First Amendment grounds, that candidates could spend as much of their own money as they wished in their own campaigns, I pressed an approach to protect against “zillionaire” politics. I realize that my views were not shared by many of my colleagues but no one begrudged me or other legislators the right to seek changes of this nature. Now, if corporate campaign contributions are held to be protected by First Amendment rights, it is hard to visualize systemic reform of this or any serious nature designed to reduce the influence of moneyed interests that could withstand a Court challenge.
The judgmental quandary in which the Court is enmeshed involves parsing the balance between judicial precedent, basic American political philosophy, and the role of statute. A review of the record clearly indicates that the Court is frustrated with the craftsmanship of the statutes it had under review but instead of overturning an appellate court ruling on narrow grounds, which was a hinted initial consideration, the activist Court majority decided to pull back and not only overturn narrowly crafted statutes but affirmatively replace them with broad Court-made law.
Properly, the Court noted in its ruling the difficulty it would have with future consideration of First Amendment questions if it ruled narrowly and, to illustrate the added work it would have in parsing various issues, it critiqued the Solicitor General for a response he made to a Court query about how the government might argue in future hypothetical instances. It then implied that the dissatisfying answer this single attorney for the Second Estate gave to a question about a potential case not under review forced them to make broad law in a case under consideration. The implication left was that it was the First and Second Estates that caused the Third Estate to change the calculus of considerations all future elected officials and candidates for office would have to make before taking stands on various issues.
While a partial basis for this pique-inspired approach can be found in Court precedent, the difficult judgment calls under review underscore the need to re-assess the definitional logic not only of Citizens United but earlier Court precedents. At issue is whether a new analytical paradigm about the First Amendment is in order, one more consistent with American history and democratic values. Rather than conflate, for instance, a corporation with a person and money with speech, should not the focus be shifted to the transactional relationship inherent in speaking and listening?
On the assumption that the most important concern in a democracy is for the individual voter rather than institutional influence peddler to be listened to and empowered, should not citizens be allowed to exercise free speech in such a way as to be heard by candidates whose ears are not plugged by corporate money?
For the Court, the Holy Grail is the Constitution. Precedent is important but it is not sacred. When a Court precedent comes to hold more problematic ramifications than the problems it is designed to correct, that precedent and its underlying logic require reconsideration. On the issue of speech, a plainer reading of the Constitution would appear more compelling at this point than the interpretive approach the Court has adopted.
To the degree the Court considers stepping into the law-making thicket on First Amendment issues, a standard that should be ever present is concern for the democratic consequences of proposed Court-made law. I stress this standard, recognizing that the Constitutional standard the Court applies to Congress when a statute is challenged also de facto applies to itself. But uniquely the Court is the final arbiter of what is or is not constitutional. It has no overseers. Therefore it might want to consider an additional self-check, a “democratic consequences” standard, one which might give it pause and impel it to seek real world political analysis if and when it may review its current stance in Citizens United.
In the wake of the Citizens United ruling, the distinguished former justice, Sandra Day O’Connor, has been speaking out for the need for states which elect their Supreme Court justices to change to a system where Governors nominate and legislatures confirm high court nominees. Justice O’Connor sees a conflict of interest problem potentially exploding in states like Texas, where huge amounts of corporate money can quickly be marshaled in support or opposition to judicial candidates.
I share Justice O’Connor’s concerns but would add that the goal of advancing equal justice under the law applies just as much to the making and administering of laws as it does to their adjudication in a court room. Indeed, the objective of advancing equal justice begins in the First and Second Estates before it becomes the responsibility of the Third Estate where judges, generally speaking, are tasked with interpreting and enforcing rather than making law—Citizens United being a sparingly embraced law-making exception.
The standard of judiciousness in the making of law is fairness while the standard of judiciousness in the adjudication of law is allegiance to the letter of law and its Constitutional framework. Hence from an equal justice perspective, the judiciary should be acutely concerned about law making that empowers deep-pocketed corporations to the detriment of mainstream citizens. No judge should be placed in the position of having to uphold patently unfair laws designed to appease corporate interests to which legislators or elected executives may be indebted. In this circumstance, public confidence in the judicial as well as the legislative and executive branches of government comes into play. A citizenry simply cannot be expected to have confidence in a judicial system in which the standard becomes equal application of unfair laws. Equal justice requires that the law itself be fair.
Many are familiar with the saying, sometimes attributed to Bismarck, that the public should not look too closely at laws or sausages being made. Law and sausage making are different, but the commonality is public concern that the seen and unseen ingredients of each be integrated in as “clean” a manner as possible.
In America, process is our most important product. Our Founders recognized human frailty and thus went to great lengths to attempt to erect a system that would be democratic rather than aristocratic or oligarchic. Individuals could be expected to make mistakes but the political system was to be above reproach, capable of evolving in ever fairer, more equalitarian ways.
Many good people enter politics only to find that the system causes the low road to become the one most travelled. Politicians routinely develop conflicts that do not technically rise to a legal standard of corruption because legislated law and now judicial fiat have weakened that standard.
The low road is travelled because it is the shortest path to office and justified because the other contenders generally stampede alongside, though increasingly far from the center stripe. If a candidate chooses a more circuitous, less conflicted route where few travel, the likelihood is that candidate will come up short.
Speech is thus at issue from two perspectives. At one end, uncivil speech must be protected by the courts, but filtered by the public; at the other, moneyed “speech” must not be allowed to weaken the voices of the people. The Constitution begins “We the people…” not “We the corporations…”
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Speech summarized in delivery. The last section on Citizens United has been substantially expanded upon.