Justice Thomas' Reasoning -- Dangerous for Democracy

The normally closed Supreme Court opened a crack last week, as
Clarence Thomas defended the 5-4 decision clearing away limits on
corporate spending to influence elections.

"If 10 of you got together and decided to speak, just as a group,"
he said, "you'd say you have First Amendment rights to speak and the
First Amendment right of association." And "if all of you formed a
partnership," it would be the same.

Then he asks rhetorically, "But what if you put yourself in
corporate form?" He implies the answer would not change. "It's wrong,"
he argues, to make any distinction. The "ultimate precedent is the
Constitution."

But, Justice Thomas, democracy itself depends on our making
distinctions about who can influence political decisions, as the Court
has done for many decades. (What about the 1933 Hatch Act curtailing
political activity by government employees?)

And the most critical distinctions?

If I speak out as a citizen, or join with others and decide "to
speak, just as a group," I am choosing to further democratic decision
making by adding my voice. Democracy's foundation is the belief that citizens are able to deliberate and choose what is best for society as a whole.
And indeed Americans often vote with this goal foremost--voting what
they think is right, not necessarily in their narrow self-interest.

But if I form a corporation, or own shares in one, my purpose is
utterly different. Partly, I seek to shield myself against personal
financial liability and to enjoy other legal advantages for financial
gain. These very different purposes and protections are among the
reasons a corporation is not a citizen, nor is it a group of citizens; and why it cannot vote or sit on a jury, for example.

How can democracy permit an entity that cannot itself vote to have
the power to sway voters and power over what a candidate might dare to
say without risking a billion-dollar backlash?

You argue the Constitution is the "ultimate precedent." But the
Constitution doesn't mention corporations, at the time they didn't
exist as independent entities. Within a few decades many founders,
including Thomas Jefferson began to see how corporate power could
subvert democracy. "I hope [that] we shall crush in its birth the
aristocracy of our monied corporations," Jefferson said, "which dare
already to challenge our government to a trial by strength and [to] bid
defiance to the laws of our country." It seems inconceivable that
founders would approve the corporate influence in elections that you
have just approved.

You suggest that the Supreme Court majority is expanding freedom and core democratic values.

No.

The Court's decision threatens my freedom to know that my purchases
and investments don't fund a corporation's political speech to defeat
my values. But this is the least of my freedoms lost.

The decision undermines my choice to be part of a democracy in which
each of us can be heard, a voice not overwhelmed by entities whose
resources rival those of whole nations, and whose interests lie not in
a healthy democracy but in enhancing their markets. The Court's
decision also helps to deprive me of the freedom to choose among a range of political candidates
far wider than those favored by our society's vast concentrations of
wealth. In a word, it deprives me of the very essence of democracy
itself--effective voice and choice.

Citizens stunned by this assault on democracy are devising a range
of response. Listening to them, Rep. Michael Capuano (D-MA), for
example, is pursuing legislation to require broad consent by shareholders before a corporation can engage in political spending

Many Americans feel powerless in the face of such loss. We are not.
One immediate step we can take right now step is to ensure passage of
the bipartisan Fair Elections Now Act--S.752, H.R.1826.
It establishes a workable system of small donations combined with
voluntary public financing for congressional races. It builds on an
approach that's already proven itself in three states. (Watch this inspiring example
of its impact.) The Fair Elections approach has not been blocked by the
Supreme Court. While it can't avert all the threats embodied in the
Count's decision, it enables a candidate to run for office without
becoming beholden to corporate money.

That is huge.

So let's not allow the Justices' dangerous logic to undermine
democratic decision making America needs now more than ever. We can
commit to choosing elected leaders who grasp what we've lost and would
seat justices eager to reclaim the long precedent shielding us from
this travesty. Right now, we can press our representatives to support
the Fair Elections Now Act. We can back the excellent work, for
example, of Change Congress Now, YouStreet, and Publiccampaign.org.