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

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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.

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