Two Conceptions of Government Power

by Will Wilkinson on January 27, 2010

I think my colleague John Samples gets it right:

The majority in Citizens United believe that the U.S. Constitution establishes a government of limited and defined powers. They asked: “Does the Constitution give government the power to prohibit speech by corporations (and others)?” The First Amendment indicated the government did not have that power.

The critics of the Citizens United decision assume the Constitution created a government of  plenary powers with limited exceptions. They recognize that free speech for individuals is one such exception. But that exception is limited to natural people, not legal constructs. If there is no exception to the plenary power of government, the critics conclude, then there is no right to speak. Congress may prohibit speech by corporations (and others).

John asks, “Which concept of the Constitution do you find most appealing?” One way to approach this question is to ask which conception of government is best suited to ensuring the security of the rights of citizens.

Here’s my best shot at articulating the position implicit in much of the progressive criticism of Citizens United…

A government that accepts that its rightful power is indeed limited along the lines of a naive reading of the First Amendment  – “Congress shall make no law … abridging the freedom of speech” — will be unable to maintain the integrity of the democratic process against the undermining influence of powerful corporate interests. Since the rights and liberties of most citizens depend on an equitable democratic process, this kind of restriction on government power together with the existence of corporations is a threat to ordinary citizens’ rights and liberties. Crucially, a state that maintains the power to exercise a meaningful countervailing influence against corporate power is less of a threat to liberty than are corporations when the state has tied its own hands.

Does that sound like a fair interpretation of the progressive view?  If you think there’s something wrong with it, what is it? I think this view pretty clearly implies that the Constitution makes some profound mistakes about the sort of government required to protect citizens’ liberty. But maybe it does! So I don’t count “progs think the Constitution is flawed” as an adequate argument against this view.

  • MichaelDrew
    I don't think it's even controversial that the Constitution is indeed quite flawed. It's been amended sixteen times in addition those that pretty much came attached (okay make it fourteen not counting the abortive nanny-state one and its nullification). And this with extraordinary procedural obstacles to amendment and a culture resistant to tampering with what is seen as a near-perfect incarnation of democratic prudence..

    Moreover, standing jurisprudence on just about every clause in the document renders its meaning into something much more practicable than the idealistic provisions literally given to us.

    The idea that it is an ingenious document that has stood the test of centuries because of its genius in all its particularities is kind of of a schoolboy's fantasy. Well, okay separation of powers and checks and balances are a pretty good system. But we've used those to make the document work for us because we have a pretty stable political culture and a shared desire to make the democratic experiment work (and nothing waiting in the wings to take its place). It works fine, but it's not God's letter to man on how to run American democracy. It's just what we happen to be working off of.
  • B Moe
    The amendment process is part of the Constitution, it is part of what makes it special.

    "Since the rights and liberties of most citizens depend on an equitable democratic process"

    Perhaps, but the rights and liberties of ALL the citizens depend on a strong Constitution and the rule of law.
  • MichaelDrew
    That's an infinitely malleable standard of doctrinal efficacy. The power to amend the constitution should be seen as precisely an admonition by the Framers to us not to regard their work as infalliable or final. They knew it was of their own time and place.
  • Pete
    Look, I'm not even an American, but the since the worry is that corporate speech drowns out smaller voices, isn't the progressive worry that allowing firms to incorporate in the first place harms free speech. Limiting corporate speech then becomes a process of making the right to incorporate consistent with brain damage.
  • sam
    As an aside, and speaking of the Civil War. I once owned an 1858 copy of The Federalist Papers (alas, in 40 years of moving about, lost). I recall in the preface the editor stressing the wisdom of the authors in light of the deep divisions then plaguing the country and his worries for future. It made for poignant reading given what was to come.
  • sam
    Yeah, I think that's fair representation of the view. Less formally, some of us are worried that Behemothcorp will use its megamillions to install elected officials who will legislate in Behemothcorp's interests, interests not congruent with those of the rest of us. And there won't be much we can do about it.

    As to whether the Constitution contains mistakes, well, it's not a book of divination. I'm fairly confident that the Framers didn't envision a world containing corporations of the scope and economic power that we see today. Hell, looking back, it's apparent they didn't see the seeds of civil war that were sown in the Constitution. So, mistakes, I dunno. History, one might say, creates facts on the constitutional ground.
  • lxm
    I'm pleased! My comment has been censored. Deleted. Gone. Lost in the dustbin of history. Purged by free speech advocates! Showing your true colors, are you?

    I guess it's a victory for free speech for some, but not free speech for others? Some pigs more equal than others?

    Remember the preamble of the constitution starts with "We the people..."

    Onward with the corporate rent seeking!
  • Found it. A bunch of recent comments got caught in my spam filter. It is ironic on free speech thread!
  • lxm
    It was a much better comment when it was deleted especially on the free speech thread. I'm sorry to see it back!
  • Hey LXM, I'm not sure what happened with your comment. It shows up on the Disqus page, but I don't know why not here. I never to delete comments. I welcome your disagreement. I'll try to figure out what happened.
  • jamesvonderhaar
    Serious question: if you buy into public choice, isn't reducing the influence of special interests over Washington a good thing? Or is the concern that the regulatory framework will also be captured by interests, allowing certain groups to continue with their practices while others are left outside the political machinations?
  • The latter, James. The regulatory framework is too tempting for anyone to let remain neutral (if indeed it ever could be, which I personally doubt). With the imbalance in expertise dealing with such huge structures leaning towards those that control similar ones, it will settle to a position of being a tool for the same interests it was intended to hinder.
  • genecallahan
    OK, longbongsilver, but that just says the problem is insoluble in the current political environment -- which I think is correct!
  • LarryM
    Yes, it's fair. My question to you: ( 1) given your own brand of libertarianism, which accepts a wider role for government than many libertarians, and which it seems is at least somewhat consequentialist (not sure you would put it quite that way, but that's certainly the impressions I get), and (2) given libertarian scholarship on rent seeking, and the reality of a large amount of successful rent seeking by corporations in the contemporary U.S., why wouldn't you accept this analysis yourself? Is it just a matter of disagreeing with the empirical claims (i.e., the power of corproate money on the political process, something you have discussed previously? Or would you still take the "libertarian" position on this question even were you convinced of the truth of progressive empirical claims? And if so, on what basis?
  • George Jones
    What I love about Wilkinson's place is the generous display of earnestness and common sense. When I visit here I feel boring, Midwestern and white. It's a lovely feeling, so thank you all.
  • lxm
    So the argument here is that progressives view the constitution as containing "profound mistakes" A bit slanted even for a strawman, don't you think?

    Here's a better argument:

    "
    1. The Court ruled that the First Amendment makes no distinction among speakers -- that the identity of a speaker makes no difference for purposes of government regulation of speech. As Justice Stevens pointed out in his dissenting opinion, this logic leads to some remarkable conclusions: "Such an assumption would have accorded the propaganda broadcasts to our troops by 'Tokyo Rose' during World War II the same protection as speech by Allied commanders." Stevens also clearly explained that the majority's logic "would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans." This is truly an unprecedented reading of the Bill of the Rights that could have consequences that reach even beyond campaign finance law. By eliminating any distinction among speakers, which, as Obama noted, has been recognized for at least a century, the Court hinted that any regulation that distinguishes between corporations and individuals may be problematic -- raising the question of what other rights currently reserved for citizens the Court might soon extend to corporations. As Stevens noted in his dissent, under the majority's logic, "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."
    To make matters worse, the Court dramatically redefined the meaning and standard of "corruption," ruling that only the strictest and most direct forms of corruption -- e.g. bribery -- are prohibited, and not, as was previously the standard, any "appearance of undue influence." This critical component of last week's decision redefined the boundaries of what constitutes corruption and made influence by special interests significantly more difficult to prove. More important, the ruling, as Obama precisely indicated and as Senate Judiciary Chairman Patrick Leahy (D-VT) fervently reiterated this morning on the Senate floor, appears to sweep away vital barriers that were keeping foreign special interests, such as Toyota, from manipulating American elections. If all speakers are treated equally under the First Amendment, and the only corruption Congress can prohibit is direct vote-trading for money, then there is no reason why foreign companies with a U.S.-presence couldn't spend endless amounts of money to influence U.S. elections. Under the logic of the Supreme Court's decision, just as Exxon can now spend millions to oppose a candidate who, for example, supports the climate bill, so, too, could Toyota or other foreign companies."

    Ah the smell of judicial activism in the morning. Takes ones breath away.

    The extract is from here: http://www.huffingtonpost.com/doug-kendall/but-...

    If I noted the cite first, no one would have read it.
  • daniel1
    I don't want to give you a heart attack, but foreign opinions may already be available to American voters(!!). From what I can gather foreign countries have "newspapers" and "dignitaries" and yes even "corporations" that occasionally express their views on American politics. Not only that, but these are often freely available over the internet! I propose writing a Great Firewall into the constitution.

    "If all speakers are treated equally under the First Amendment, and the only corruption Congress can prohibit is direct vote-trading for money, then there is no reason why foreign companies with a U.S.-presence couldn't spend endless amounts of money to influence U.S. elections."

    The word "influence" is doing a LOT of work there. Work usually done in scary movies by long shadows, suspenseful music cues, and jarring smash cuts. "They are coming... they are coming to INFLUENCE us... Noooooo"

    "The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each."

    If you want to do something through the law, mandate more transparency. As long as Exxon-Mobil or even Toyota have to sign their name to ads, I'd say, it's the voter's prerogative to agree with them on policy or even that a particular candidate is some kind of wife-swapping homo-lover. If you want to do yet more, target the actual behavior of legislators (maybe you shouldn't be accepting money from--or even associating with--defense contractors while on defense committees). After all, they are the ones who actually sell us out each and every day.

    If the real problem is that US voters are too stupid, too uneducated, etc. to decide for themselves, then come clean about not being in favor of democracy. What you want is some sort of pseudo-pluralist ideological hegemony.
  • c5h
    Yes, I think the progressive view is that the Constitution is mistaken as to the biggest threat to citizens' liberty, and the powers needed by the government to protect liberty. Progressives will argue that this view has been vindicated by history, as corporations have forced employees to work long hours for little pay, have caused health and environmental problems by polluting the air and water, and have engaged in all manner of nefarious activities in the pursuit of profits. The purpose of modern government is to protect citizens from the corporations because while the people have rights against the government, without the government people do not have rights against the corporations. Our interpretation of the Constitution has changed over the years due to our changed perception of the reality that the government needs to protect us from the corporations. Allowing corporations to influence the government through campaign finance will undermine this purpose of modern government.
  • NathanS
    Has a single person even mentioned that "corporations" as they are defined would not exist with out tax law that essentially forces them to?
  • Corporations existed long before US tax law. The University of Oxford is a corporation, which originally came into existence to protect the rights of students and teachers against the Borough of Oxford back in the C13th.
  • Steve C
    I don't know, I guess you could say progressives hold this view. You could say this about anyone depending on you view on what the Constitution is and isn't. Do supporters of the existence of the Air Force and NASA believe the Constitution is flawed? How about those opposed to allowing individuals to own nuclear weapons? Or those who support using the interstate commerce clause to regulate the local drug trade?

    It's impossible to expect us to amend the Constitution on a regular basis to take care of these sorts of problems, and unless you're willing to follow your belief in (foolish) consistencies over a cliff, you must believe in some form of living constitution. That's the problem with "strict constructionism": it's a lie, meaningless in practice.

    I don't see anything in the Constitution about corporations, or anything about corporations having the rights of real people. That's reading in language that's simply not present - interpreting a case based on penumbras and such that the Federalist Society types deride. Federalist Society judges are conservative activists (though I'm guessing nobody around here needs to be convinced about that).
  • genecallahan
    "That's the problem with "strict constructionism": it's a lie, meaningless in practice."

    Correct. The US never followed any "strict construction," nor could it have, since the constitution was a product of abstract rationalism that, in fact, could not deal with the political realities various governments face.
  • curious
    this framing of the question is, um, interesting, but from the point of view of those of us on the other side, it's bizarrely twisting the issue.

    i could (and many do) reasonably posit that the portion of the constitution in question -- the bill of rights -- does not delineate the powers of the government. it delineates the rights of the people (and in one case, of the states).

    many of us people who value those rights as important do not view corporations as members of our number. it's not a hard concept, fellas.
  • johndewey
    The First Amendment clause about "abridging the freedom of speech" protects the right of the individual to hear whatever speech he wishes to hear. It protects the individual from censorship by the government. It does not matter whether the speech was created by an individual, by an organization of individuals, by a church, by a union, or by a corporation. The right being protected is not the right of the speaker but rather the right of the listener to be free from government censorship. It's not a hard concept, curious.
  • jstrummer
    I think you're missing the words, "some," "sometimes", "some people" and so forth. The First Amendment definitely does not protect the "right of the individual" to hear whatever speech he wishes to hear. And it definitely does matter what the speech is, and who says it. Even libertarians acknowledge that.
  • johndewey
    There are a few exceptions, but not very many. As Justice Kennedy just wrote:

    "The Court has upheld a narrow class of speech restric-tions that operate to the disadvantage of certain persons, but these rulings were based on an interest in allowing governmental entities to perform their functions."

    Kennedy further wrote:

    "By taking the right to speak from some andgiving it to others, the Government deprives the disadvan-taged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each."
  • That is a bit hard on the ACLU, which is a corporation. A corporation is people acting together for common purposes. If one holds that private action for common purposes are not protected by rights, that is a very attenuated sense of rights.

    Thus, as I note below, the corporation of the University of Oxford came into existence in the C13th to protect the rights of the teachers and students against the Borough of Oxford.

    Also, as Glenn Greenwald points out, if you hold the position you articulate in the last sentence, then all 9 Justices disagree with you:
    But what isn't reasonable is to pretend that the 4 dissenting judges endorsed the idea that corporations have no First Amendment rights or that money restrictions don't burden free speech rights. All 9 justices rejected those views. Again, that doesn't mean those views are wrong, but it does mean that those who are arguing these two principles do not find any support even from the dissenters.
  • jstrummer
    I'm arguing that the idea that this opinion has anything to do with "RIGHTS" writ large is nonsense. This is an opinion written by people who favor business interests. Business interests naturally want to spend as much money as possible to influence politics. Business interests like to bribe politicians. That is what this decision is about. People who oppose this favor what might be thought of as government interests. Government interests want to stop business interests from spending money as freely as they can. That's all.
  • My, what a simple universe you do live in. This is a decision about speech, which is public. That corporations can now do more things openly is hardly "bribery". And it is about rights, the right to hear which is the other side of the right to speak.
  • My copy of the Bill of Rights has a 9th Amendment which renders such a reading--that the first eight amendments delineate the rights of the people--inconsistent.

    Also, my keyboard--and most made since the early 1980s--has a "Shift" key, which allows capitalization of the first letter of sentences. It's a courtesy to others, and it's not hard.
  • curious
    oh, hey, yeah, it's awesome! not only does the bill list people's rights, it even says they have extra rights that aren't in there! very sharp find. except, um, that doesn't change the fact that it's a document that's describing people's rights.

    i'm still looking for the part about the corporations. no dice here, but let me know if you find it in yours, K? keep up the good work!
  • LJM
    Actually, it's a document that's describing what the government can't do. And all it says about speech is that the government can't restrict it. There's no reason to look for anything else regarding speech, because that's all that needs to be said in a free society.
  • genecallahan
    Well, except that NO ONE at the time of the adoption of the constitution understood this to mean that anyone could say anything they wanted in any context at any time.
  • jstrummer
    Where's this "free society"? I'm stumped. Srlsy. Are you talking about America in 2010?
  • daniel1
    If in your last paragraph "corporations" were substituted with "cylons" or "those aliens from District 9", then I would say your sentiment was bizarre and a little racist, but at least it made sense.

    As it is, there's just us humans here. No one is arguing for literal "corporate personhood" because the only persons with personhood are persons.

    The flip side of that is that any "speech" that gets out into the air or on the airwaves inevitably came from a person or persons. Not some primordial demonic evil, not monkeys on typewriters. We are the only ones capable of emitting it.

    So it's not some easy ontological distinction between something-that-is-a-person and something-that-is-clearly-not-a-person. You've got to make the case for distinguishing between a person and persons. Sure we all have free speech--but pool your money together to rent a billboard in an election season and it's off to jail with you. One person has free speech, five people together suddenly don't. Maybe that's a concept you'll find at least a little more challenging.
  • Marty
    "One person has free speech, five people together suddenly don't. "

    One person has unlimited personal liability, five people together in a corporation suddenly don't.
  • pithlord
    So a state can constitutionally remove limited liability (and for some forms of tort and environmental claims some have). It doesn't follow that Congress can remove the right to speech from an entity that has limited liability.
  • daniel1
    As far as I can tell those sorts of laws facilitate cooperation/organization--they're there because without limited liability and protection from fraud, etc. it would be very difficult to engage in coordinated projects. The laws have no real opinion of what ends you pursue once you form a new cohesive unit (other than to ensure that when you invest with the understanding that the corporation will produce a return on your investment, they actually try to do that). Also liability is itself a construct--corporate law isn't an artificial imposition on the pristine natural world so much as an attempt to reconcile group action with rules for individuals.

    There's no real overlap or logical connection between rules designed to facilitate organization--in the context of existing rules about individual behavior--and the political speech actual organizations produce. What this comes down to is "since you're involved in the legal system we can do whatever we want to you." Nope.
  • curious
    aw jeepers, now i'm stumped! plural nouns complicate everything! or not. come on, dude.

    each of those five individual persons already has free speech, as an individual. they retain those individual rights when they band together on whatever business pursuits they fancy. no one's speech rights change with that group's formation, and there's no reason why they should.

    given the activist nature of the decision and the absence of any mention of corporations in the constitution, the onus is on those in favor of it to make a case for why a group of people who already possess rights as individuals should constitute a separate person with rights of its own.
  • LJM
    There have been cases where individuals without enough money to purchase materials necessary to make their opinion available to the masses have come together, incorporated as it were, to combine their resources in order to achieve their goals. They have been fined for this action.

    Also, if the word "individual" was in the First Amendment, you might have a point. But all the First Amendment says is what the government can't do. That's not a hard concept, either. I'd say it's even easier than deciding when, where, and why GE and Fox can make political statements while half a dozen regular folks pooling their money can't.
  • daniel1
    The entire point is that you don't need the concept of a separate, virtual individual to ask why if multiple people band together to produce speech, banning that speech doesn't violate _each_ person's individual right to free speech, simulataneously.
  • I think progressives tend to overestimate the extent to which corporate power is what drives American politics. They reason from the fact that they like an idea to the notion that the public likes it or that certain politicians like it. In reality most politicians are clueless about policy matters and the public is even worse, hence we get bad policy.
  • LarryM
    How then to explain the empirical fact that there are so many laws which priviledge corporations? Seems like a vindication of libertarian rent seeking analysis.

    I'm not being snarky here, I really would like to hear the answer. Sure, there are plenty of naive libertarians who don't "get" this basic fact, but I assume that the commenters here are mostly smart enough to realize this fact.
  • Steve C
    Right and that's why health care reform is sailing through congress. And we had a wonderful bill about credit card companies a couple years ago. And all copyrights last 75 years.

    Are you paying attention?
  • Eric Auld
    This position seems the most right to me. Particularly on matters economic, it seems that progressives reason that positions they find inscrutable must be simply the impact of corporate interests.
  • johndewey
    Wow! Hard to believe I am hearing such an argument in my lifetime!

    The First Amendment was expressly written to protect an individual citizen from a powerful government which would decide which speech that individual be allowed to hear. It is not the speaker, but the speech - and the right of the individual to hear and consider it - which is protected from censorship of the powerful government.

    Governments have the power to raise armies, to police the citizenry, to tax the citizens against their will. It is the powerful government from which citizens need protection. The First Amendment is the most basic form of that protection.

    Corporations gain their power from the voluntary money given them in exchange for their goods and services. Corporations cannot raise armies. Corporations cannot police the citizenry. Corporations cannot tax the citizenry against their will. Corporations can only provide goods and services in hopes that the citizenry will voluntarily purchase them.





  • genecallahan
    Are you aware that Jefferson, Adams, and other of the founders advocated, and often implemented, limits on speech far beyond what anyone today would permit?
  • Jason M.
    Or they can bypass the citizenry altogether and barter directly with the government, which, thanks to copious amounts of free speech heaped upon it from those same corporations, is convinced it should outsource even it's most elemental functions (raising an army, policing it's citizens) to corporations like Xe (formerly Blackwater U.S.A.).
  • Noah Yetter
    “Which concept of the Constitution do you find most appealing?”

    Who cares which is more appealing? The first one is right and the second is wrong, period. We can wave our hands all we want; the written Constitution is still there, and what it says is that the powers of the state are limited to what is written.

    What we have done as a society in pretending the Constitution means other than what it does, is to destroy the entire concept of the rule of law. We would be better off literally burning the Constitution and starting over, explicitly creating a government of unlimited power, than continue to have a government of unlimited power while pretending that we don't.
  • genecallahan
    Noah, since to of the chief advocates of the new constitution, Madison and Hamilton, often could not agree on what that document right after it was signed, then how is it you have an unambiguous understanding of what they meant a couple of centuries later?
  • genecallahan
    Oops, left out "meant"!
  • cvd
    "Since the rights and liberties of most citizens depend on an equitable democratic process"

    Why exactly is this the case? What exactly is "an equitable democratic process? All of our rights and all of our liberties really depend on this process?

    This clause seems like the weak point in the argument. Since 17 year olds can't vote does that make the process inequitable? Since some votes count for more in some states does that make the process inequitable? Since really stupid peoples' votes count the same as really smart peoples' votes, does that make the process inequitable?

    More fundamentally, why do you think democracy is such a good guarantor of the rights and liberties of all? Political philosophers since Plato have known that democracy, as John Adams said, "never lasts long. It soon wastes, exhausts, and murders itself."
  • william_b
    Seems like a good summary to me.

    My concern is that your ability to be charitable here is made possible by not specifying the mechanism by which keeping corporate money out of election campaigns improves the quality of our government.

    I think those are the broad strokes of the progressive argument against the Citizens United decision, but the easiest way to get to your nice-sounding conclusions is by using false premises.

    Let me put this another way: what do you think is the strongest argument that corporate spending on elections actually has a negative impact on the quality of our government?
  • daniel1
    Well, another question, is it really that corporations threaten ordinary citizens' rights and liberties, or that it interferes with a positive demand for distributional equality of political influence?

    I.e. it's not that corporate influence overshadowing ordinary influence will lead to some political-liberty-apocalypse, it's that by overshadowing the ordinary citizen is denied the "rightful" political distribution and the rightful political ends it would produce.
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