Corporations and the First Amendment

We live in an era when everything–every case decided by the Courts, every law passed by Congress or a state legislature, every encounter between police and citizens–generates frightening headlines, hysterical tweets, and multiple emails from activist organizations exhorting recipients to take action (usually involving signing a petition and sending money).

So it’s easy to become jaded, to attribute the decibel level to partisanship, or a lack of perspective or analysis. I know I increasingly find myself thinking “just chill out. This isn’t the end of the world. Get a grip.”

Some things, however, prove to be every bit as worrisome as the scolds and screamers predicted. A grim assessment from a recent Harvard study suggests that the consequences of Citizens United and the line of cases leading up to it have been even more damaging than we were warned at the time.

Some of the study’s key findings include

While the First Amendment was intended to protect individual freedom of religion, speech and assembly, as well as a free press, corporations have begun to displace individuals as its direct beneficiaries. This “shift from individual to business First Amendment cases is recent but accelerating.”

Over time the high court has shown an increasing willingness to rule in favor of corporate interests, as a result “reducing law’s predictability, impairing property rights, and increasing the share of the economy devoted to rent-seeking rather than productive activity.”…

The ability for corporations to obtain relief from the courts gives them incentive to “place bets not on new technologies or marketing strategies, but on legal and political ‘innovation’” to protect markets they have and exclude new entrants. This also has the effect of causing regulatory agencies to reduce their efforts, because enforcing existing laws becomes increasingly difficult….

American public discourse tends to be very bipolar and “zero sum.” Policies are either right or wrong, good or bad. A right accorded to X must mean diminished rights for Y.

In the real world, however, the goal of policy is more often than not to achieve an appropriate balance between or among competing interests, all of whom are entitled to have their rights respected. Most Americans would agree that businesses have the right to participate in the marketplace of ideas, and that the law should respect the fiction of corporate “personhood” in the contexts for which that personhood was originally created.

It is when Court decisions and legislative actions create troubling imbalances of power, we risk substantial damage to our social ecosystem. Cases like Citizens United and Hobby Lobby have upset that balance, empowering corporations while disempowering individual citizens.

“These findings present a challenge to the view, articulated by the majority and concurrences in Citizens United and Hobby Lobby, that corporations and other business entities should be understood ‘simply’ as aggregations or associations of individuals, and so should not be distinguished from them for purposes of First Amendment analysis,” the author writes in his conclusion, continuing: “The corporate takeover of the First Amendment represents a pure redistribution of power over law with no efficiency gain — ‘rent seeking’ in economic jargon. That power is taken from ordinary individuals with identities and interests as voters, owners and employees, and transferred to corporate bureaucrats pursuing narrowly framed goals with other people’s money. This is as radical a break from Anglo-American business and legal traditions as one could find in U.S. history.”

Sometimes, the decibels are appropriate.

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I Don’t Think That Word Means What You Think It Means….

Rand Paul has assumed the mantle of libertarianism from his father Ron, and in all fairness, espouses some positions that are consistent with libertarian philosophy. But he’s anything but a genuine libertarian.

Peacock Panache recently reported on a Paul presentation at a private prayer breakfast sponsored by Pat Robertson’s Christian Broadcasting Network:

Paul told those in attendance at the breakfast he supports an intertwining of religion in government. “The First Amendment says keep government out of religion,” he said. “It doesn’t say keep religion out of government.”

Tell that to any Constitutional scholar who has done even a little research into the workings of the Establishment Clause and see how it goes over.

Continuing his pseudo-sermon Paul continued, “In fact, the moral crisis we have in our country, there is a role for us trying to figure out things like marriage, there’s also a moral crisis that allows people to think that there would be some sort of other marriage.” He continued, “We’re the most disconnected city on the planet from the people. So don’t have a lot of faith in what’s going on up here.”

Paul has the solution though. “We need a revival in the country,” Paul told an attentive audience that agreed with his every word. “We need another Great Awakening with tent revivals of thousands of people saying reform or see what’s going to happen if we don’t reform.”

There are two ways to interpret this nod to religious hegemony. It may be that Paul really has no idea what authentic libertarianism is, or it may be that he is intellectually dishonest and willing to pander to the prejudices of his audience. (The two interpretations, of course, aren’t mutually exclusive.) Either way, he’s disqualified from holding a government position. (Not that disqualification matters much these days–if we held lawmakers to an intellectual honesty standard, most of Congress would be gone.)

Paul also opposes reproductive rights and  same-sex marriage, for example–positions at odds with libertarian philosophy but virtual litmus tests for the GOP’s Evangelical base.

Just for the record, Rand, the libertarian principle that emerged from the Enlightenment (and upon which this country was largely founded) celebrated individual autonomy: the right of each individual to establish and pursue his own life goals, free of interference by government or popular majorities, unless and until that individual harms the person or property of a non-consenting other–and so long as he is willing to respect the equal right of others to do the same.

Now, I realize we can all debate what constitutes harm, but when you aren’t even willing to respect the right of other people to live in accordance with beliefs contrary to yours, you’re an authoritarian, not a libertarian.

Google it.

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Rational Self-Interest

Sunday “sermon” time…..

Adam Smith argued that a market economy serves the common good by allowing individuals to operate on the basis of self-interest. I agree. The problem is, too many of our contemporary “Captains of Industry” don’t understand where their own self-interest ultimately lies.

The worst thing about avarice is how shortsighted and ultimately unproductive it is, even for those whose pursuit of ever-fatter bottom lines is all-consuming.

That’s because a more equal society is in the long-term best interests of even those people who don’t feel any obligation to feed hungry children or find jobs for ex-offenders or make health care accessible to poor people. First, there’s the fact that– in order to remain competitive in a constantly changing global economy– America needs to use everyone’s talents. Social injustices that prevent people from reaching their potential are a drag on that competitiveness.

Second, it is cheaper to deal with problems at the front end than at the back. When we cut programs that help poor folks, we may save a few dollars in taxes, but (as substantial research confirms) we end up paying far more, in costs ranging from lost productivity to prisons.

But it’s the third argument that ought to make us stop and think. As I have argued before,democracies require stability in order to survive.

In countries where there are great gaps between the rich and poor, in countries where some groups of people go through their lives being marginalized or despised while others enjoy privileges and respect, in countries where some people are exploited in order that others might benefit—that stability is hard to come by. A wealthy friend of mine once put it this way: “I’d rather pay more in taxes than spend my days worrying about angry mobs rioting in the streets or desperate people kidnapping my children.”

Most of us understand that—as Elizabeth Warren has pointed out–no one succeeds solely by his own efforts. There is a social and physical infrastructure required to support and enable entrepreneurship and wealth creation, and we taxpayers have built and maintained that infrastructure. And that’s fine. Adam Smith was correct that we all benefit when someone builds a better mousetrap, or improves on another guy’s widget. But when someone profits from his better mousetrap, the people who paid for and maintained that infrastructure–the people who invested in his business via the support systems that enabled him– have a right to a return on that investment in the form of taxes.

A genuine devotion to one’s own self-interest requires us to recognize the degree to which we depend on social stability and an adequate infrastructure–both social and physical.

The contemporary Oligarchs–with their greed and contempt for the common good–are  undermining the very system that has allowed them to succeed. What they fail to recognize is that when the system fails, they will fail with it.

 

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Okay, So Here’s My Final Question..

You would think that everything that could possibly be said about “religious freedom” in Indiana has now been said, written or mocked, and that it is past time for this blog to move on…but I do have one more question, and it hasn’t been asked or answered. At least, not that I’ve seen.

Let’s say I own a bakery, and Mrs. Unpleasant comes in and asks me to bake a cake for her DAR meeting. She’s one of those customers who always complains about something and is never satisfied, and I don’t want her business. Do I say: “Listen, you shrew, I don’t cater to impossible biddies, go somewhere else”? Of course not–at least, not if I have any brain cells. She’d bad-mouth my bakery all over town. Instead, I say “Gee, I’d love to, but I am so backed up with orders, I can’t squeeze this in.” Or “Darn! I have to wash my hair this week and won’t have time.” Or something.

So–this time, it isn’t Mrs. Harridan with the megaphone, it’s Adam and Steve, and they want a wedding cake. Wouldn’t I use the same sort of excuse? I mean, who is compelling  bakery/flower shop owners to declaim “Oh no, my Lord has commanded that I not participate in your sinful nuptials!”

Who’d know what my real motive is? Adam and Steve might suspect, but as any lawyer will confirm, suspicion isn’t evidence.

This leads me to think that  what these “godly” folks really want isn’t just the right to refrain from participating; they want the right to scorn and humiliate any hapless LGBT folks who might be unwary enough to try patronizing their establishments.

They don’t just want the right to “opt out” of baking that cake or making that bouquet; they want to be able to advertise their superior “godliness” without worrying about some silly legal commitment to equality or civility.

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Karma’s a Bitch

More accurately, as a friend posted on Facebook, “Karma’s only a bitch if you are.” Either way, the ignominious conclusion of the Christian Right’s spiteful effort to send a message to the LGBT community is what we professors call “a teachable moment.”

Let’s recap: Eric Miller of Advance America, Micah Clark of the American Family Association of Indiana, and Curt Smith of the Indiana Family Institute were smarting from their losses in the same-sex marriage debate. They wanted a win for their constituencies (to whom, not so incidentally, their constant fundraising efforts are directed), and prevailed upon their ideological allies in the Indiana legislature to introduce a vague and expanded, post Hobby Lobby version of the Religious Freedom Restoration Act. They were confident that Governor Pence, a longtime culture warrior, would sign it.

RFRA was unlikely to have much effect in rural Indiana, where discrimination against LGBT folks was still entirely legal anyway. And although the legislation raised some troubling questions, most lawyers predicted that it would not trump LGBT civil rights in cities where those rights were protected by ordinance.

But the real purpose of the legislation wasn’t legal, it was political.

The bill was intended to send a message: to tell gay folks that despite their marriage victory, they remain unwelcome, and (by “protecting” good Christians against further “victimization” by the nefarious “gay agenda”) to reassure their credulous members they were worth the dollars they’ve been extracting from them.

That message was received and (unlike both RFRA and the First Amendment) understood.I’ve already posted about the immense and damaging blowback it generated.

Yesterday, the Governor and legislative culture warriors capitulated, amending the law to provide that “religious liberty” cannot be used as a defense when a business or other “provider” discriminates on a laundry list of bases–including sexual orientation and gender identity.

This is the first time in Indiana history that LGBT folks have been explicitly protected by state law. It isn’t quite the same as inclusion in the state civil rights law, but it’s close; after all, virtually all discrimination against LGBT folks is justified by citation to religious belief. If that is no longer a sufficient reason, it’s hard to think what is.

And that gets us back to (very satisfying) karma. Eric Miller, Micah Clark and Curt Smith deliberately set out to inflict gratuitous harm on a marginalized minority. Because they thought they could. Because it would be good for fundraising. Because it would salve their wounded egos. Because they have never understood the fundamental decency of most Hoosiers.

Instead–and as a direct result– gay rights in Indiana have advanced substantially. In addition to the new language in the Indiana Code, a broad coalition has formed to work for inclusion of sexual orientation in state civil rights laws. Businesses throughout Indiana are displaying “We Serve Everyone” signs. And the presumed political power of these smarmy culture warriors has been shown to be largely mythical (can we all say “the emperor has no clothes?)

Karma is so gratifying.

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