As you’ve probably heard, the Supreme Court finally issued its opinion on the Citizens United case. Read the full opinion here. And for a good round-up of commentary, I recommend SCOTUSBlog. One interesting point made my Lyle Denniston there is this:
Another question, and this one the Court explicitly said it was not deciding, was whether foreign corporations with operations in the U.S. — placed under the same restrictions as domestic ones — might now be able to claim the same First Amendment protection if they want to spend large sums to try to influence U.S. federal elections. Perhaps that is one example of the next generation of campaign finance lawsuits.
Denniston also wrote another post looking at corporate personhood that begins thusly:
Supreme Court Justice John Paul Stevens may have had his tongue in his cheek, or perhaps wanted merely to taunt the majority, when he wrote in Thursday’s opinion on the role of corporations in national politics: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.” It is a tantalizing notion.
In related news, not that long before the Supreme Court issued its opinion, the American Society of Civil Engineers issued an opinion of its own:
According to the American Society of Civil Engineers, American infrastructure is in a dangerous state of disrepair, leaving the country vulnerable to natural and man-made catastrophes. According to James Fallows of The Atlantic, American domestic institutions are to blame. Fallows mainly takes aim at the Senate, writing:
That is the American tragedy of the early 21st century: a vital and self-renewing culture that attracts the world’s talent, and a governing system that increasingly looks like a joke. One thing I’ve never heard in my time overseas is “I wish we had a Senate like yours.”
When the U.S. Senate was created, the most populous state, Virginia, had 10 times as many people as the least populous, Delaware. Giving them the same two votes in the Senate was part of the intricate compromise over regional, economic, and slave-state/free-state interests that went into the Constitution. Now the most populous state, California, has 69 times as many people as the least populous, Wyoming, yet they have the same two votes in the Senate… No one would propose such a system in a constitution written today, but without a revolution, it’s unchangeable.
However, the Senate frequently fulfills its originally intended purpose of representing “the minority of the opulent.” As James Madison argued during the Constitutional Convention (at least according to his own notes):
The man who is possessed of wealth, who lolls on his sofa, or rolls in his carriage, cannot judge of the wants or feelings of the day laborer. The government we mean to erect is intended to last for ages. The landed interest, at present, is prevalent; but in process of time, when we approximate to the states and kingdoms of Europe; when the number of landholders shall be comparatively small, through the various means of trade and manufactures, will not the landed interest be overbalanced in future elections, and unless wisely provided against, what will become of your government? In England, at this day, if elections were open to all classes of people, the property of the landed proprietors would be insecure. An agrarian law would soon take place. If these observations be just, our government ought to secure the permanent interests of the country against innovation. Landholders ought to have a share in the government, to support these invaluable interests, and to balance and check the other. They ought to be so constituted as to protect the minority of the opulent against the majority. The senate, therefore, ought to be this body; and to answer these purposes, they ought to have permanency and stability.
The Senate would represent the wealthy while the House would represent the unwealthy. The mediator between the hand and the head would not be the heart, but rather the legislative branch (despite what Fritz Lang may have you believe):
But as I noted last week, the Supreme Court frequently plays the same role intended for the Senate. To once again quote Alberto Alesina and Edward Glaeser:
For much of American history, and at least until the end of World War II, the courts played a major role in rejecting legislation that was perceived as antibusiness. A most notable example was a decision of the Supreme Court in 1894 against the introduction of a federal income tax. It took the sixteenth amendment of the Constitution almost twenty years later to pass the federal income tax in the United States. During the Progressive Era, in the early part of the nineteenth century, the courts were a formidable obstacle to the establishment of a European-style early welfare state, despite the notable efforts of many social reformers. Scocpol (1992) defines the United States as a “court dominated” state and notes that between 1900 and 1920 courts struck down about 300 labor laws (p. 227). Judges “invoked constitutional prohibitions against special, or class legislation.”
And the Citizens United case is perhaps another example of this trend. While Fallows argues that the Senate over-represents territorial minorities, it is also possible that the Senate and the Supreme Court together over-represent the minority of the opulent. And as Fallows notes, this situation will most likely stand in the way of much needed infrastructural repair.
Fallows presents some creative solutions. For one, a military coup, referencing Charles Dunlap’s “The Origins of the Military Coup of 2012,” a fantastical telling of a fictional futuristic coup necessitated by American institutional failure. Or another possibility, manufacture a security threat that seems to require investment in infrastructural repair. Eisenhower’s federal highway system was created during the threat of the Cold War, Fallows notes, so perhaps something like that could work again. Or, he posits, “the United States could call for a new constitutional convention, to reconsider all the rules.” However, he ultimately dismisses these ideas:
…[W]e really have only two choices. Doing more, or doing less. Trying to work with our flawed governmental system despite its uncorrectable flaws, or trying to contain the damage that system does to the rest of our society. Muddling through, or starving the beast.
I think it would be nice if ideas for institutional reform seriously made their way into the mainstream dialogue. Proposals for constitutional amendments are already being circulated in the wake of the Citizens United ruling. America’s ability to maintain its place in the world seems to depend on some type of institutional reform.
