Exceptionalism, Corporate Edition

Only in America. No other nation gives its corporations as many rights as we do.

Before you launch into a knowing and cynical “sure–big business bought our lawmakers,” consider the fact (highlighted in a recent article in the Journal of Law and Courts) that these expansive rights are almost all the result of federal court decisions, not legislation.

The privileges currently enjoyed by the fictitious “persons” we call corporations weren’t a result of our Constitution, either.  According to David Ciepley, author of the referenced article,

“the framers were so concerned about the possibility of privileged monopolies squeezing out ordinary citizens that they did not endow Congress with the traditional right of Parliament to charter corporations, let alone expressly extend constitutional rights to corporations.”

There are three theories about corporations and their rights: the associational theory (corporations are constituted by their members and thus deserve the same rights as those members); the “real entity” theory (a corporation is distinct from its members–a separate, albeit fictional, “person” entitled to the rights accorded to “persons” under the 14th Amendment); and the grant theory (corporations exist because government has created them, and they have only the powers with which their creator endowed them).

The legal problem with the associational theory is that in the U.S., rights are individual. My family doesn’t have a right to free speech–although each member of my family does. The practical problem with basing a corporate right to free speech on the First Amendment rights of its shareholders is obvious: those shareholders are likely to have different opinions (especially on public policy issues) and to want to say different things.

The notion that a corporation is somehow an organic “person” separate from both government and its shareholders and entitled to 14th Amendment protections is so historically and logically flawed as to require little rebuttal–especially in an era where Justice Scalia remains ambivalent about including living, breathing women within that Amendment’s protections.

The only theory that accords with both history and logic is the grant theory. Governments  created corporations in order to encourage commerce–in large part by limiting the liability of individuals. (We are more likely to innovate if a failure won’t entirely wipe us out.) Corporations should have all of the rights that are required to fulfill their purpose, which is to do business–the right to own property, to contract and to engage in commercial speech.

The Supreme Court has gotten two things very wrong: money is not speech, and corporations are not people. (I have to agree with a popular Facebook slogan: I’ll believe corporations are people when Texas executes one.) Those two errors have massively distorted our politics and corrupted our governing institutions.

The Court failed to recognize the contemporary operation of the golden rule: He who has the gold, rules.

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It’s More Complicated Than That…

H.L. Mencken famously said that for every problem, there’s a solution that’s clear, simple  and wrong.

That’s an observation that has escaped lawmakers and economists for a long time, although in the last several years, many of them have come (grudgingly) to recognize its wisdom.

For a long time, economists predicted human behaviors using a “cost/benefit” framework; incentives were  “profit maximizing” and costs were, well, costs.  Of course, real human beings aren’t so one-dimensional. We don’t behave as the economists predicted, because what constitutes an incentive or disincentive for any particular person cannot be so neatly identified.

It isn’t that we humans don’t act in our own self-interest–we do. It’s just that “self-interest” means different things to different people. Teachers who could make more money in the private sector are rewarded by making a difference in children’s’ lives; lawyers for public-interest organizations forgo substantial monetary rewards but derive immense satisfaction from “doing justice.”

“Value” and “reward” are inescapably subjective.

The incentives to which people respond–what impels someone to work, or to work at this job rather than that one–is often a matter of cultural values and expectations. That’s why the widespread belief that a social safety net creates a “culture of dependency” has always been flawed. People don’t work just for sustenance; they work for cultural acceptance, meaning, self-esteem and personal pride, among other reasons.

A recent cross-national study has recently confirmed the lack of a relationship between the generosity of a country’s social safety net and the diligence with which unemployed people look for work. (It also found that receipt of social benefits didn’t make people happier or more satisfied. Depending on the kindness of strangers simply keeps folks fed and/or housed, not cheerful.)

In other words, feeding people who’ve lost their jobs doesn’t make them stop looking for work, and providing minimal support to those who are down and out doesn’t make us suckers.

It might, however, make us better humans.

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Pushed Too Far

Remember the old comic book ad in which a bully kicks sand in the face of a skinny guy, and the skinny kid takes a Charles Atlas course, muscles up, and comes back to flatten his tormenter?

I think Harry Reid took that course!

Yesterday, Reid invoked the “nuclear option,” changing the Senate’s rules in order to permit most Presidential nominees to be approved by a simple majority.

If you are old enough, you may remember when such majority rule was the rule. The filibuster–a procedural mechanism devised by the Senate itself and found nowhere in the Constitution–was until recently employed only rarely, and usually by a Senator who actually filibustered, a Senator who talked until he could no longer hold out. During the George W. Bush administration, Democrats used it more frequently, but it was only with the election of Barack Obama that things got seriously out of hand.

As media reports have confirmed, early in the Obama Administration, Congressional Republicans decided to block any and all measures coming from the White House. The merits of the proposals, the bona fides of nominees, the desires of the electorate–none of those things would matter. And they would no longer bother to actually filibuster–they’d just say “we’re filibustering, so you need sixty votes” to pass this bill or confirm this nominee.

There’s a Yiddish word for that: chutzpah. 

The GOP’s goal was simple: deny this President any victory, no matter how small, no matter how good for the country, no matter if the proposal had originally been their own.

Case in point: Lawyers and judges have pleaded with lawmakers to fill the mounting  and unprecedented vacancies that have slowed justice to a crawl and brought business to a halt in many of the nation’s federal courts. Legal organizations and the ABA have sounded the alarm. No matter. Senate Republicans have kept focused on their primary mission: say No to this President.

They finally pushed the Democrats too far.

Reid’s reluctance to “go nuclear” has been clear for some time. But it  finally became obvious even to him that the alternative was another three years of stalemate, another three years of national drift, of getting virtually nothing done.

The Constitution requires a simple majority vote to pass bills and confirm most nominees. Except in a few specific instances, it does not require a super-majority. And yet, for the past five years, the GOP’s constant abuse of the filibuster has effectively required a super-majority for even the most mundane and previously uncontroversial actions.

The Party of No has used the filibuster to throw sand in the gears of the Senate–as a way to refuse to do the people’s business so long as Obama occupies the White House. Senate Republican leadership made a calculation: they would stand united to ensure the failure of the hated (black/Kenyan/Muslim) Obama, and the Democrats wouldn’t have the balls to go nuclear.

It was a reasonable bet, but it turned out to be wrong.

The skinny weakling grew a pair.

 

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We’re Exceptional, All Right

Nicholas Kristof recently reported on the consequences of a Texas drug sweep. He began by asking readers to pretend that they’re the judge:

She’s a 32-year-old mom with a 9-year-old daughter and no prior arrests, but she has been caught up in a drug sweep that has led to 105 arrests in her Texas town. Everyone arrested is black.

There are no drugs found on Jones, but her supposed co-conspirators testify against her in exchange for reduced sentences. The whole case is dubious, but she has been convicted. What’s your sentence?

You have little choice. Given the presumptions of the case, she gets a mandatory minimum sentence of life without the possibility of parole. Jump to today and already Jones has spent 14 years in prison and is expected to die behind bars — for a first offense.

This isn’t, unfortunately, an anomaly. America currently has 3,278 people serving life sentences for nonviolent drug and property crimes. In twenty percent of those cases, it was the person’s first offense.

Welcome to mandatory minimum sentencing.

Welcome to laws that don’t allow judges to judge, to calibrate sentences to the specifics of the case before them. Laws that give frustrated jurists no choice but to impose draconian penalties no matter how outrageously disproportionate or unjust they believe those penalties to be.

Welcome to “getting tough on crime” — and of course, welcome to the War on Drugs.

We’re talking about crimes like possession of a crack pipe. Or acting as a go-between in a drug sale. Or trying to cash a stolen check, or shoplifting. Or sharing LSD at a Grateful Dead concert. The estimated cost of imprisoning these 3,278 people for life–rather than for a more reasonable period, one more proportionate to the crime–is calculated to be 1.78 billion dollars.

Sequester that, Boehner!

As the warden of the Louisiana State Penitentiary said, “I need to keep predators in these big old prisons, not dying old men.”

This is flat-out insane. It is wasteful of lives and money, and appallingly inhumane. If we read about similar practices in another country, we’d condemn that system (and smugly congratulate ourselves for our own moral superiority).

We’re exceptional, all right. And evidently incapable of shame.

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Public Duties, Private Rights

It’s a bitch having to share the country with other people. Especially when so many of them are so wrong about everything.

A friend of mine just sent me the most recent tantrum (excuse me, newsletter) from the Indiana Family Institute’s Micah Clark, and that’s pretty much the message. According to Micah, those of us who don’t share his belief that “kids do best with a mom and dad”–that is, those of us who oppose a constitutional ban on same-sex marriage and civil unions –are thereby labeling people like him “bigots.”

I realize that needs a bit of deconstructing. Or, perhaps, psychiatry.

Here’s what Micah and his fellow “victims” don’t get: we live in a society with a lot of other people, many of whom have political opinions, backgrounds, holy books, and perspectives that differ significantly from our own. The only way to govern such a society–the only “social contract” that allows us to coexist in reasonable harmony–is by respecting those differences to the greatest extent possible. That requires treating everyone equally within the public/civic sphere, while respecting the right of individuals to embrace different values and pursue different ends in their private lives.

I know this is hard for you to understand, Micah, but a refusal to make everyone live by your particular interpretation of your particular holy book is not an attack on you; it is recognition that we live in a diverse society where other people have the same rights to respect and moral autonomy that you claim for yourself.  Ironically, a legal system that refuses to take sides in your religious war is also the only system that can safeguard your own religious liberty. I know you don’t want to believe it, but most Americans really don’t share your religious certainty and belief in your own moral superiority. If your right to live in accordance with that certainty had to be put to majority vote, you might find your own “lifestyle” legally marginalized.

As I’ve noted previously, poison gas is a great weapon until the wind shifts.

As to your accusation that those of us who support marriage equality are calling you a bigot–well, here’s the dictionary definition of the term: “a person who hates or refuses to accept the members of a particular group.”

If the shoe fits…..

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