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Published on Thursday, February 11, 2010 by Harvard Law Record

After Citizens United, is a Different Corporate Influence Our Only Hope?

Rethinking Ralph Nader's latest book in light of the Supreme Court decision

by Prof. Robert Fellmeth

With the recent Supreme Court holding in Citizens United, corporations and unions have first amendment protection to spend directly on political campaigns - at unprecedented levels. This is not the first ruling to protect speech rights for corporations - they also benefit from the Court's "Noerr-Pennington" doctrine, which exempts them from antitrust laws when they combine to influence legislation.

But Jefferson and company might be quite surprised to learn that "originalists" citing the sanctity of their original intent would let loose upon our government hated British megacorporations of the colonial era, like the Hudson Bay Company, as a "person" with such rights to combine with other companies and win political influence.  We live in a world that is increasingly controlled by these horizontal organizations.  They, together with labor and professional alliances, dominate Washington and in state capitals.  They are euphemized as "stakeholders."

These tribal structures are often vehicles that represent the lowest common denominator of the ethical sensibilities of their membership. But the problem is not quite related to the easy demonizing Wall Street or corporate predation; it is that it is the job of corporations to invest capital, and then to try to maximize return on that capital for the stockholders who provided it.  That neutral, understandable task means that they should and must protect that investment, and if society has created market flaws that allow external costs in the exhaustion of the earth's resources, or health costs borne by others, this is not something they exist to correct.

The problem is that they are now legally able to prevent correction.  The "socialist" moniker thrown at supporters of government intervention applies where the state excessively owns and operates the means of production., when the check between private and public becomes lost. But what do you call the evisceration of that check in a system where the means of production own and operate the state? Is industrial or special interest socialism not even more antithetical to American notions of check and balance?   

The corporate-controlled fate awaiting us is not confined to liberal gnashing over global warming and environmental depredations. Conservatives have a stake also, as the current unfunded liability for social security, MediCare and the national debt exceeds a projected $55 trillion. The carrying charge in current dollars for the debt we are imposing on our children is over $20,000 per family per year.  

Into this evolving and deeply problematical world, Ralph Nader '58 released his interesting new book, Only the Super-Rich Can Save Us! (Seven Stories Press). This novel combines real-world politik with an imaginative story-a fantasy of what could happen if 17 of the nation's wealthiest and most influential persons combined to move the needle back toward the middle, accomplishing political reform and economic restructuring. Can such a group transform our long-term future and diffuse interests (the environment, our children and our legacy) by expanding their secondary, public relations "fig leaf" roles into actual, real-world influence?

The prospects would appear dim, but the idea has more to it than the frustration of a longtime consumer advocate. Nader has been largely marginalized by the media as some sort of eccentric, most of whom have forgotten that many of the mechanisms that protect modern consumers, from air bags to drug testing to government transparency - are directly traceable to his citizen advocacy.  But his point in the book is not vindication; it is to raise the possibility of an imaginative alternative.  And with the current elevation of corporate personae, Nader's jujitsu idea may become the only alternative we have.

Much significant human progress occurs because someone rises above predictable self-advancement, taking on his own elite group. Though this rarely happens, there have been a few remarkable examples, such as Mikhail Gorbachev reversing the Soviet Union's expected course, ending decades of bullying and antidemocratic domination. He did the unpredictable-he replaced defense bluster with disarmament and political domination with Glasnost.  And no, it was not Reagan or rising oil prices or a peacock-strutting United States that forced the Soviet Union's course correction.  It was a leader turning against every expected instinct and pattern.  When such reversals of predictable self-interest occur, the consequences may be profound.  Indeed, the highest ethical act in the modern world may be to take on one's own tribe.

In Nader's fantasy, that is what these billionaires do.  They get together and find common ground in a legacy of competition, environmental health, political reform, and world progress. Could it happen?  What is interesting is that Nader personally knows most of the folks he writes about.  And his storyline purports to capture not only their political views, but also their personalities: Warren Buffet ordering cherry colas, the clever repartee of Sol Price, and the charisma of  Warren Beatty.  And the fact that these folks do, in fact, care about our planet.

Most of those named in his story currently spend fortunes on charity-on advancing values not far from those promoted by Nader.  But what they do in his fantasy is stop spending the vast proportion of it on direct services.  This is not to say that the billions spent on AIDS or malaria abatement have not yielded important results; the 2009 data from UNICEF shows real reductions in child mortality worldwide.  Some of Nader's "characters" - all real persons - are largely responsible for this progress.  But their donations are not strongly leveraged, as Nader would propose.

What Nader essentially does is imagine a world where the super-rich seek more than malaria containment - where they seek leveraged change in public investment and decisions.  Interestingly, Citizens United may make that shift both more needed and more feasible legally.  For if corporations can independently campaign for political candidates protecting the value of their drilling rights and seek to burn carbon accumulated over four billion years as if it were a sparkler lit on the 4th of July, why cannot those who have wealth, lacking such a sunk-cost bias, do likewise?  Why can't Soros and Buffet and Gates and the rest - with wealth freed from direct exploitation bias and able to factor in future costs - participate in countervailing political discourse?

Nader imagines that they end their dabbling and "feel good" dispensation of shots to wide-eyed children and do the work of changing ground rules so that political candidates are bought by the public, not by special interests, so that political campaigns have substance beyond ten-second sound bites and brainless namecalling, so that the many have access to the courts, so that agencies hear from many interests regularly, so that no business is too big to fail.

The fun of reading this book is in joining the author's fantasy, but punctuating it with our own tactics - what we would do to correct the world's deviant path had we the resources and visibility of these 17. The characters in this book seek structural and leveraged change-advocacy  for public budgets and laws and international agreements-that properly embody more than the exploitation of narrow self-interest.  Now that the U.S. Supreme Court has radically shifted ground and allowed (contrary to the judgment of the people's democratic institutions) many billions of corporate and union money to directly influence elections, those interests with capital investment in current profitable enterprise - whether it be mining the seas, polluting the earth, or collecting medical benefits for power wheelchairs and Cialis on the backs of their grandchildren -- will increasingly lock-in their self-protection and their imposed external burden on others.  Their free ride, notwithstanding future costs, will be further and irretrievably calcified into public law.

Although pathetic, it appears as if these 17 and some of their friends may indeed be the most realistic hope we have.

Robert Fellmeth '70 was one of "Nader's Raiders" and formerly worked on the Harvard Law Record. He is now is the Price Professor of Public Interest Law at the University of San Diego Law School.

© 2010 Harvard Law Record
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