"We are not final because we are infallible," the great Supreme Court Justice Robert Jackson wrote in 1953, "but we are infallible only because we are final." Jackson was among the most eloquent justices ever to serve on the high court, and perhaps the greatest writer in its history. But his wit and wisdom now are being challenged by the Los Angeles City Council.
The City Council voted last week to support legislative action or a constitutional amendment to overturn the Supreme Court's recent ruling on the place of corporations in America. The amendment, intended to roll back the court's controversial decision in Citizens United vs. Federal Election Commission, would restrict constitutional rights to living people and thus, in the view of its backers, return "power to the people" rather than extending it to corporations (or unions, though you didn't hear much of that in the heavily union-backed council's denunciations of Citizens United). The council motion, approved unanimously, makes support for the amendment the official position of the city of Los Angeles.
Like much of the council's work when it sticks a toe into the fast currents of national and international politics, it is supported by a commendable impulse, and yet the result is intellectually shallow and marked by the council's casual hypocrisy.
The backers of this amendment would have you believe that Citizens United was a breakthrough case in constitutional history because it, for the first time, recognized constitutional rights of corporations or unions. That's not true. For more than a century, the court has properly observed that corporations exercise rights usually enjoyed by individuals, and that the result is a more prosperous and fair society. In 1886, a California case tested the question of whether a railroad company was entitled to equal protection under the 14th Amendment; the court concluded that it was.
That wasn't a gift to a malevolent, anti-democratic force. In fact, it is useful for corporations to enjoy some individual rights, to be able to enter into contracts and to protect their private property. It is sensible, for instance, that Apple does not cease to exist with Steve Jobs' death, and that its agreements outlive him. It is logical that corporations can sue and be sued, even though those are prerogatives we generally associate with people, not entities.
No, the beef that proponents of this amendment have is not with corporations enjoying human rights but rather with them enjoying speech rights — specifically, the right to donate to political campaigns. If they confined their protests to that, the advocates might have a better case. Equating money with speech is a messy business — and one the court has been wrestling with for decades, with about as much success as it has registered in defining obscenity in such a way as to remove it from the protections of the 1st Amendment. But even if the court's work there is contestable — and it's worth remembering that four justices dissented from the holding in Citizens United — it's hard to be a purist on the other side.
If the company that employs me, the privately held Tribune Co., donated $1 million to Barack Obama, would that be any less an act of speech than if the chairman of this company ordered every one of his editorial pages to support Obama (thankfully, both of those are hypotheticals)? Is it a campaign contribution, an act of speech or both if Random House releases a book denouncing Newt Gingrich a day before the New Hampshire primary? Is it any different if Sony releases a movie making the same point? Money and speech intersect in a variety of complicated ways.
The council's hypocrisy begins with the willful refusal to acknowledge those subtleties, but it really plays out in the gulf between the way the council treats corporations when it wants their help and when it's playing to the crowd. When council members go hunting for campaign contributions, the high dudgeon so on display last week is notably missing; then, it's merely groveling. And when they're desperate to find a way to rescue a struggling city asset — most recently, the Convention Center — they're happy to grant tax breaks and other relief to a corporation, in this case AEG, to cut the deal.
That's not to say that there's anything wrong with cutting a deal with a corporation or with collecting campaign contributions, but to take money and ask for favors and then harrumph about the infusion of money into politics is pretty hard to bear. Here are the words of Richard Alarcon, one council backer of last week's motion: "Corporations are at the wheel of America, and they are driving us to destruction."
That's not destined to rank with Jackson's sentiments, but it does capture the essence of the council on this issue.