A Modest Proposal: Mexico, Canada, and the "Citizens United" decision

As a loyal Canadian, and someone devoted to American constitutionalism, let me make the following "modest proposal" (with apologies to Jonathan Swift). Pemex, the state oil company of Mexico, and Petro-Canada, the at-arms-length-from-direct-government-control Canadian petroleum company, should form an American "dumby" corporation -- what used to be called in the good old days, before Progressivism ruined everything in the early 20th century, a "holding" company. This company could incorporate in N. J. or N. Y. or Massachusetts, or wherever the most troublesome progressive Democrats and judges run for office. (Any first-year law student should be able to write up articles of incorporation that will pass muster in the U. S. and in these states).

Once this corporation is established, it can support candidates for federal office in the U. S., or for elected judges who might be critical to decisions important to Canadian-Mexican interests. Better yet, as a "new citizen" of the U. S., this corporation -- let's call it "Friends of American Democracy" or maybe "F___k American Democracy," both say the same thing in modern American political double-speak -- can work to defeat candidates who think that the Mexicans are just a little too lax in the methods they use to extract oil or distribute and refine it, or who think the Alberta oil sands (i.e., "tar sands") are an environmental corruption.

In addition, being the largest suppliers of oil to the U. S. -- something Americans cannot grasp given American fascination with a Middle East that always puzzles them -- Mexico and Canada can demand some quid pro quo from the U. S. Congress. In regard to the Mexican half of our new "F_____ American Democracy" "new-citizen" corporation, how about getting candidates to oppose any fence across Mexico's northern border, giving full amnesty to illegal immigrants working in the U. S. (i. e., those Mexicans who almost always out-perform Americans incapable of competing with them in wages or in quality of work), and engineering a special deal for poor Mexican corn growers who cannot compete against corn from the Midwest U. S. -- corn that is subsidized by as much as 50% of crop value. Canadians can demand that Americans quit harassing their border with idiotic security plans that have little or nothing to do with security. Canadians might want to get an even better auto-pact, and other trade advantages.

Mexicans and Canadians should revel in the opportunities that the Citizens United decision affords them. A few million dollars is nothing -- truly nothing -- compared to the advantages that these two countries might exact from a nation that does not even know that they -- Mexico and Canada -- exist. (For American readers, let me remind you that Mexico is that strange elongated one to the south, the one that used to own California and New Mexico and Arizona, and , oh yes, Texas. Canada is the cold one to the north -- but you knew that, didn't you -- the second largest country in landmass in the world). Oh, but you say that you know that tourists go to Mexico: well, then, maybe Mexico could get a special tax on American tourists who loiter on their beaches. Oh, and you have heard of Eskimos (they aren't all American, you know) and baby seals so maybe Canada could get the U. S. to end any contention over Canadian sovereignty over the Arctic. Jeez, you have to love the American brand of democracy and the Citizens United Supreme Court ruling. Americans truly are ahead of the rest of the world. They have seen the intelligence in giving away their manufacturing to anyone who will work for a penny an hour less than will their workers, in exchange for the celestial level of having a "service" economy only. And, best of all, they are willing to sell the bothersome governance of their country, and the decisions of their judges, to the highest bidder. What genius!!

From Liberty to Libertarianism to Anarchy

I am as flabbergasted as anyone about the decision by the U. S. Supreme Court in the case of Citizens United v. Federal Elections Commission. Accompanied as it is by the probable death of any U. S. health care reform, the U. S. Senate victory by the Republicans in Massachusetts, and what appears to be the expulsion of the Obama administration to the political wilderness, everyone should be alarmed about the future that lies before us. Because I assume this blog is read by my Canadian friends primarily, I want to emphasize that the current of events in the U. S. is important to Canadians as well. As a student of U. S. Constitutional History, I can assure everyone that this is decision with monumental implications.

The Supreme Court decision in Citizens United reversed precedent set and expanded and repeated since 1907 regarding the prohibition of corporations involving themselves in financing campaigns for or against political candidates. It is impossible to conclude anything other than that ideology alone drove the majority of the court. Justice Kennedy’s majority opinion implies that it is too difficult in modern times, with a huge variety of ways of speaking and technologies to convey that speech, to discriminate among speakers. And, in a kind of wave of the hand, tossing aside lightly the enormous weight of precedent, Kennedy essentially comes down on the side of a fully libertarian vision of First Amendment rights. Remember, this is a country and a court that has and does limit speech in all sorts of ways if they think that speech inimical to the peaceful maintenance of the state, and often if they merely think that speech is radical. And, they have often restricted, by one means or another, not only who can be heard but who can speak as well.

Justice Stevens -- in a dissent made enormously long (90pgs.) because he had to repeat all of the weight of precedent, stare decisis, and old arguments -- put the real argument against this new ruling by the Court by emphasizing that the Court is giving corporations new stature under the idea of protecting speech for individuals. As he said,

“The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.”

In the 19^th century, corporations were given the standing of “persons” for legal purposes and for certain limited rights (e. g., the right to sue and be sued), but not because anyone seriously thought that a corporation was a person in body or mind. The corporation is a fiction, and it constitutes only a fictive “person” for legal convenience.

Stevens also attacks the effects of this decision. Although assumed effects have less argumentative weight in constitutional law than fundamental principles and precedent, in this case the evidence of what is going to happen is overwhelming. Corporations will have it in their power, through clever and careful manipulation and the means to control most public speech (aside from the internet and private correspondence), and to decide the outcome of elections – no matter how vigilant the electorate may be. “One cannot shout fire in a crowded theatre and cause a panic,” so said Oliver Wendell Holmes, Jr., but the majority of the current court is quite willing to let a corporation openly, or at arms–length or behind layers of third and fourth party front-organizations, spend millions of dollars to destroy any candidate they wish through powerful devices of propaganda expertly and precisely employed. Public lives will be ruined. Private lives will be ruined. An electoral panic for against candidates will ensue. Only the wealthy friends of corporations need apply for high public office. The greater part of the American democracy will shun politics even more than they do now. The consequences may be catastrophic.

The U. S. Supreme Court’s decision, however, is just part of a larger mudslide, a larger erosion around the very foundations of American society. This slide has its origins in leftist lifestyles as much as rightist politics. “Do your own thing” liberalism married to private profit-motive laissez-faire capitalism has produced a powerful libertarian offspring. That offspring is now well out of hand. Thomas Frank’s observations on Bill Moyer’s Journal last week (Jan. 15) are chilling in the context of the Citizens United case. I thought Frank a bit extravagant in his argument that the Right wants to destroy government altogether by crippling its authority and by placing advocates of radical libertarian principles into office (in short, sycophants or toadies who will destroy government). After this court decision, I am not so certain that he overstates things by much. Ironically, I do believe that the Right wants a powerful central state insofar as the military is concerned – a military that can force other countries to abandon their own free will.

Even more problematical is the heightened unreality about many things that has come to inhabit the minds of many people. The “birthers” are unwilling to believe birth records; Rush Limbaugh and Glen Beck are willing to bend facts to suit their larger “truths”; Canadians are told that they do not like the health care system they have despite the fact that all evidence is to the contrary. It gets worse. While Neil Postman may have been correct a few years ago in claiming that we were, as stated in his book title, Amusing Ourselves to Death, he has drastically undershot the mark. We have not just abandon thought and reflection through our attachment to instruments like television, we have become unable to discern truth from fiction. The two have begun to merge seamlessly, and as truth and fiction merge, we get the most outrageous claims about what is and what should be. Now we live two lives, our mundane existence (if we are indeed attached to that existence at all) and the life of our avatar. We are more than one step beyond the existentialist denial of “essences.” We now think we can shape and re-shape ourselves into many different persons. In the process, we are becoming “no person.” “No person” is quite willing to be shaped by the visual media into whatever is available, and “No Person” does not want anyone – family, society, or government – to spoil their delusion. “No Person” is quite eligible for the manipulations of corporate America in the political arena.

In our household (and I do mean that others in our family have arrived at their own independent opinions on American affairs), we used to sigh at what we saw as wrong-headed policies, grit our teeth at the election of bobble-heads, and shout at the TV over stupid decision-making. I cannot speak for others but I am now getting a little frightened, perhaps not for me, but for the future, for my family and my friends who must contend with this world for another half century or more.