Brownian Emotion

[UPDATE: see this newer post for more recent events, or read below for the more complete background]

If we can correct this mistake, and do it in a way that protects business operations without resorting to such legal science fiction, we can perhaps solve the most troubling and fundamental problems in Washington today.

The Problem

With all the talk (or disturbing lack thereof) about “Campaign Finance Reform” and the destructive role that money plays in Washington, I got to thinking. Why have we been unable to change this for so long? What exactly is the problem?

Laws like McCain-Feingold attempt to patch the dike separating an ocean of easy money from “the public interest” by banning certain kinds of contributions, setting arbitrary limits, and so on. Stronger laws run up against the old constitutional problem — The Supreme Court has ruled that “Money = Speech,” and any attempt to restrict money is a direct assault on the 1st amendment. And so water flows right over the dike, unchecked and unbound.

That’s not going to change anytime soon, even as we drown. And so we’re stuck with the majority of Congress receiving the vast majority of their money from corporations and special interests who swim on the newfound lake. Certainly, no for-profit business would donate money if there wasn’t a positive return on their investment. That alone is proof that the system is corrupt.

So if we can’t and perhaps shouldn’t restrict money-slash-speech in deference to the 1st, what can we do? Well, there’s a critical assumption that we always seem to overlook:

Why does a fundamental American right, written by the people, for the people, even apply to corporations at all?

And the answer is:

Because Corporations are “Persons” too.

The original intent of these odd decisions, some 150 years old, was to help corporations evolving into the industrial revolution own property, mines, factories, and be shielded from lawsuits, or even bring lawsuits, as needed. And those fictitious human rights have progressed very far and fast. Google recently used the 14th amendment (intended to give legal rights to freed slaves) to prevent the government from seizing its search histories. Despite the positive outcome, the precedent is truly frightening. What’s even scarier is that corporations received their full legal personhood well before African-Americans, immigrants, children, and even women. And that should be telling. The courts weren’t thinking about what might happen if Corporations demanded the rest of their “human” rights. They were simply solving a problem. And they got it wrong, big time.

At this point, I wonder if we can even differentiate between an artificial and a real person anymore? Perhaps just barely. We don’t let corporations yet vote or hold office. They’d never die to protect their country. Bankruptcy is very different, as are taxes. And one can legally own corporations, which would technically be slavery if they were actually people (in fact, violating the 13th Amendment may be a good argument to make…)

Clearly, some laws can tell the difference. So why can’t the rest?

The Solution

Step One (of one) is to pass a law.

For the sake of simplicity, let’s call it The Corporate Bill of Rights (and Responsibilities). This new law would simultaneously abolish the centuries-old false humanity of corporations and replace it with pro-active constitutional legislation, which all strict constructionists should applaud.

That law would grant corporations the important rights and benefits they actually need to function, such as:

1. Comparable rights to own property, likely including the right to own other companies.
2. Comparable rights to file suit in any court for any reason pertaining to their business.
3. Comparable protections for shareholders from lawsuits against the company.
4. Comparable protections from government: search and seizure, due process of law.
5. Anything else important to normal business operations –

–except these:

1. No corporate right to keep and bear arms — I mean, seriously.
2. A more tailored right of corporate “free speech;” specifically removing political speech, which, if it’s allowed at all, should be well-regulated (at least as well as pornography–and, ironically, for similar reasons…).
3. And none of this fictitious “person” nonsense.

The law of the land should not be based on a convenient fiction, lest we someday forget what it means to be human, alive, and free.

Individuals, even journalists in big media companies, could still voice their opinions, of course, when it’s clearly distinguished from their job and the corporate line. Editorials would be unaffected, as the 1st Amendment “Freedom of the Press” implies. And for journalists, I’d even favor brand new formal protections from, say, compelled testimony about sources and for unintentional mistakes. But I’d hope we could distinguish The Corporation from The Press, in terms of original intent, and remove the blanket protection for The Corporation lying to the public under guise of news.

We should be able to hold Fox or the NYT accountable if they misrepresent the facts or skew the truth, as well as sue advertisers over false or misleading claims. Truth in media never looked so good.

And most importantly, this would prevent any corporation, union, lobbyist or non-profit from spending any of its resources to help any candidate get elected to office. Without the full protection of the 1st amendment, they could not donate one red cent — and why should they be allowed in the first place? They can’t legally vote. And we’ve seen first hand what damage it does when they buy influence into law, and even foreign policy.

With this change, they couldn’t even run the so-called “issue ads” using company resources. Only true citizens could. And we would, wholesale. My prediction is that if lobbyists only have their personal funds and their one vote to offer, they won’t get any more face time than an ordinary citizen. Imagine that! Democracy at work.

The Critique

The first major criticism some might have is that a wealthy individual could buy all the speech he wants, but common people could not. Well, there’s nothing to stop 10,000 people from pooling their money to buy an ad together, and there’s nothing to stop a non-profit PAC from organizing such an effort without actually paying for it. It has to be individual money, not money collected from dues or donations to make it legit. That’s not going to stop organized political life on either side. But it will curb abuses.

And for corporations whose business is cars or guns or entertainment, your employees can always donate if they so choose, but the corporation can’t. Period. Political pressure by companies on their employees is already forbidden. So why do we continue to let corporations donate from their operating budget instead? (i.e., employees and/or union members are paying either way).

The second major criticism is that free speech for corporations prevents government censorship and propaganda. This is the best criticism, but we can deal with it right off. First, realize that censorship already exists — if you doubt that, just look at the run up to the Iraq war, or the “wardrobe malfunction.” We have to address it either way. Second, if media corporations are no longer in the business of political speech, they should not be favoring the government’s perspective over any opposing view or vice versa. They should be reporting facts, in balanced fashion, and what real people say and do. We’ll be monitoring them for bias in any direction.

In fact, one might argue that the whole reason Fox News exists is that conservatives think the media is too biased (the other way). So if we can excise that bias by removing the legal right to be biased, at least for non-human, non-voting entities, we might actually fix the core problem once and for all.

That’s not to say it’s easy to monitor. We’d need some serious protections from government interference, in any event. However, this is not fundamentally different from the protections other businesses already get from interference in, say, choosing which crops to plant or how to engineer their chips. It’s called “regulation,” and we can find the right balance of “hands-off” and monitoring. It must be an open, honest and publicly accountable process most of all.

The final and most critical challenge is the constitutionality of this law itself. I am no lawyer, despite my pretense. But it seems to me, if the Bill of Rights was written before corporations were considered, and the States never modified our Bill of Rights to include the new abstract entities, then there’s not much keeping them in place. Even a Supreme Court ruling can be overturned — by today’s court, or by new constitutional law. Is an amendment required? I don’t think so. But an amendment would make it harder for anyone to undo this later on.

The Conclusion

I know the title of this article is somewhat facetious. But the contents are deadly serious. Getting money out of politics — at least corporate and especially multi-national money — is the fundamental step to returning Washington to the people. And restoring the constitutional definition of “person” in a pro-business way is perhaps the simplest and fairest way to do it.

The longer we do nothing, the more we watch ourselves trade places — we become the property, and corporations become the citizens.

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[Update: thanks to a reader, you can digg it here: www.digg.com/political_opinion/How_to_Fix_Every_Problem_in_Washington ]