When your grandchildren ask you why the American experiment failed for all but the very wealthy, this is the answer you should give them:
Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.
From "Corporate Speech And The First Amendment, History, Data and Implications" John C. Coates, IV, Harvard Law School, February 27, 2015.
The
New York Times highlights a unique study from John Coates of Harvard Law School that questions one of the pillars of our American experience, our implicit faith in the wisdom of the courts to interpret the Bill of Rights:
These days, a provocative new study says, there has been a “corporate takeover of the First Amendment.” The assertion is backed by data, and it comes from an unlikely source: John C. Coates IV, who teaches business law at Harvard and used to be a partner at Wachtell, Lipton, Rosen & Katz, the prominent corporate law firm.
“Corporations have begun to displace individuals as the direct beneficiaries of the First Amendment,” Professor Coates wrote. The trend, he added, is “recent but accelerating.”
Coates' analysis, although described by the
New York Times as "provocative," is hardly based on anything that hasn't been on display for all who cared to look. Guided by a series of Supreme Court decisions over the last four decades, the Federal Courts have gradually constructed an impregnable lattice-work of precedent stemming from one dubious proposition: that dry, organizational concepts regulating business wealth and power-sharing--some simplistic, some utterly byzantine--but all reduced to paper and filed in various Departments of State, although possessing no discernible life span, no susceptibility to disease, emotion or regret, no aspirations beyond the raw intake of money and influence, are nonetheless entitled to the same protections set forth in the Bill of Rights as originally intended for the country's mortal, flawed and finite flesh-and-blood citizens.
The bastardization of the First Amendment is encapsulated in the words "commercial speech." Its consequences, Coates argues, are destroying us, not only politically but economically as well:
Professor Coates also analyzed data from federal appeals courts, finding that “businesses are growing steadily more aggressive in their use of the First Amendment.” Court dockets these days are full of free-speech challenges from pharmaceutical firms, tobacco companies, miners, meat producers and airlines.
Such lawsuits, he wrote, have pernicious consequences for both free enterprise and the rule of law. Corporations are diverting resources from research and innovation to litigation, he wrote.
“Concentrated, moneyed interests, represented by those in control of the country’s largest business corporations,” he wrote, “are increasingly able to turn law into a lottery, reducing law’s predictability, impairing property rights, and increasing the share of the economy devoted to rent-seeking rather than productive activity.”
Later in the paper Coates clarifies that in "ordinary" terms, "rent-seeking" means "
theft, waste and graft."
Importantly, Coates' conclusions differentiate this paper from existing critiques of
Citizen's United and its predecessor,
Buckley v Valeo, insofar as he focuses primarily on the
economic harm caused by the Court's continuing misapplication (he terms it "invention") of a new First Amendment jurispudence:
This corruption not only risks the loss of a republican form of government emphasized by most critics of Citizens United, but also risks economic harms – a package of risks one could call (with some but only some exaggeration) “the risk of Russia.”
For those who may have missed it, he's talking about the rise of a corrupt, Russian-style oligarchy.
The paper traces the historical treatment of commercial speech through laws and regulation and concludes that the First Amendment was not used as a weapon to strike down restrictions on "commercial speech" until the early 1970's. Coates' study skillfully demonstrates that far from being based on any real intent of the Framers, the "corporatization" of the First Amendment is a modern phenomenon owing an outsize debt to the efforts of one reactionary (Coates coldly refers to him as a "Constitutional entrepreneur") named Lewis Powell, who eventually became a hugely influential Supreme Court Justice, joining in multiple seminal Court decisions that have since been expanded to afford certain rights to corporations that had previously, historically been interpreted as protections to individuals, as afforded by the Bill of Rights. From the paper (recall this is being written by an attorney from the prominent corporate law firm in the country, not a left-wing blogger):
This movement was stimulated in part by the 1971 “Powell memo,” in which Lewis Powell [in a secret memo written two months before he was confirmed to the Supreme Court] advocated that the Chamber of Commerce undertake a broad, multi-channel effort at mobilizing corporations and their resources to defend capitalism and the “free enterprise system.”
This movement was needed, Powell asserted, to defend against a growing and dangerous movement of academics, media, intellectuals, clergy, and politicians to attack business and capitalism, by pushing such ideas as consumerism and environmental protection. “Under our constitutional system,” he wrote, “especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.” In other words, Powell’s memo advocated using the courts not simply to enforce or interpret the law...but to change the law.
From
Wikipedia on the influence of the Powell Memorandum:
The memo called for corporate America to become more aggressive in molding politics and law in the US and may have sparked the formation of several influential right-wing think tanks and lobbying organizations, such as The Heritage Foundation and the American Legislative Exchange Council (ALEC), as well as inspiring the U.S. Chamber of Commerce to become far more politically active.
It was only after the Chamber of Commerce and other business interests, responding to the Powell Memorandum, began to push for a judicial remedy to what they saw as "creeping Socialism," (read as anything threatening their profits) that the First Amendment was "re-evaluated" in a business-friendly context:
The bottom line is that the First Amendment had no operative legal role in creating or sustaining the great era of US economic growth that began in the 19th century and continued through the 1950s and 1960s. Instead, during most of American history, at most, the First Amendment served principally as a symbol and hortatory summation of the value of free expression by individuals, and even after the Supreme Court began striking down laws in the 1930s and 1940s, it did not commonly do so for business (as will be shown more systematically in Part II).106 These roles for the First Amendment might have played a role in the political restraint of regulation of expression generally, and perhaps even by businesses in limited contexts (such as expressive businesses, such as newspapers), but the First Amendment played little to no role in restraining the regulation of commercial speech as such, until the recent era inaugurated in Virginia Pharmacy.
Bearing the sleepy title of
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., the decision (involving the now mundane issue of a pharmacy's right to hawk the prices of prescription drugs), authored by Justice Blackmun and joined by Powell and five other members of the Court, marked a "turning point." This was the case in which the Supreme Court first accepted the doctrine of "commercial speech." After
Virginia State Board of Pharmacy, Coates sees the number of First Amendment cases involving businesses beginning to ascend, while those involving individuals began to diminish. Two years later Powell himself introduced the concept of "corporations as people" in the case of
First National Bank of Boston vs. Bellotti.
Enticed by what later proved to be a "Faustian bargain," more liberal Justices (including, for example, Justice Douglas who also sided with the majority in Virginia Pharmacy), steeped in their understanding of the First Amendment as protecting "individual speech," eagerly embraced the formulation of "commercial speech," without regard to the inevitable consequences. Tim Wu, a law professor quoted in the Times article, describes how the right co-opted the First Amendment to cater to corporate self-interest, rather than the interests of ordinary Americans:
Once the patron saint of protesters and the disenfranchised, the First Amendment has become the darling of economic libertarians and corporate lawyers who have recognized its power to immunize private enterprise from legal restraint.
As precedent piled up on precedent, even right-wing bigots such as Antonin Scalia were (and continue to be) mistaken for "free speech advocates" by those who should have known better. Because it is not "speech" at all that Scalia and his ilk advocate, but unfettered greed, wrapped in an untouchable, thoroughly fraudulent package disguised as "speech:"
“An expansive conception of free speech became attractive to Republican justices,” he wrote, “both because robust free-speech protection fit neatly into the right’s skeptical, deregulatory approach to government generally, and because it encouraged vigorous transmission by powerful speakers of the right’s newly energized collection of ideas.”
The results have been horrific. The abomination of
Citizen's United and
McCutcheon v FEC, eliminating nearly all restrictions on corporate "speech," are simply the most recent manifestations of the degradation of the First Amendment and its co-opting by elements of American society that have no interest in speech, but a profound interest in profits. While Coates's analysis is calculated to influence the business interests he has spent a lifetime representing, he expressly acknowledges the corruption of our political system by the bastardization of the First Amendment. In the context of both the political and the economic harm caused by the Court, his conclusion regarding our current situation is grim:
The corporate takeover of the First Amendment is at its heart the use by elite members of society of specific legal tools to degrade the rule of law...Precedents are overturned; stare decisis becomes a joke; constitutional entrepreneurialism runs amok. Radicals in pinstriped suits rewrite whole elements of long-established legal order.