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< | Who cares if corporations are people? Campaign Finance and Transcendental Nonsense |
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> | Symbolism, Politics, and the Future |
| | -- By DanielKetani - 16 Feb 2012 |
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< | What are corporations? |
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> | Politics and polytheism |
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< | “Corporations are people, my friend”. Through this statement of prima facie absurdity, Mitt Romney managed to bring pop culture relevance to the debate of the role of corporations in modern society. This statement is, of course, empirically ridiculous, as corporations are not beings of flesh and blood, do not have feelings, nor possess any of the other attributes one typically ascribes to the human experience. The relevance of this statement, though, is particularly timely as it was made during the first presidential election since the Supreme Court decision in Citizens United, which enshrouded and expanded the free speech rights of corporations. |
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> | Thurman Arnold in “The Folklore of Capitalism” asserts that politics is governed by myth and symbolism rather than reason. In a political campaign, candidates, at least the successful ones, preach why their interpretation of the national creed is the true faith and their opponent’s is heresy, with the most successful invocations of the heroes and symbols that invoke the creed winning the election. While Arnold wrote about America in the 1930s, much of what he said is still relevant to any discussion of elections in America. |
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< | If corporations are not people, what are they? Felix Cohen would almost certainly reply to this, transcendental nonsense. Who cares which legal form an association uses? If one type of association is understood to have free speech rights, what distinguishes another type of association? People use different forms of associations in our society for various purposes. In order to say a corporation should receive different treatment from these others, using the functionalist approach, it is not enough to look at what they are, but also what they do. |
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> | One assumption that Arnold seems to make that I do not think has proven true, if it ever was, is that the creed changes across time but does not vary within the population. I think it is more accurate to say that most voters belong to the creed, but as with many polytheistic practices, different sects may have different hierarchies. In the pantheon of heroes, some may worship the Warrior or the Scholar or the Priest more or less. In effect, I think Arnold has somewhat underestimated the degree to which individual beliefs do matter; not in terms of rational preferences, but the symbols that matter to different adherents. |
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< | Does it matter what type of corporation it is? |
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> | The era of television |
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< | What might be said to be different about a for-profit corporation, in the American interpretations, is that they have a duty to make money. A board of directors has a good faith duty to act in the best interests of shareholders. While it is conceivably possible the best interest of the shareholders may be something other than profit, this is unlikely and generally untrue. The idea of an entity entirely devoted to profit is somewhat unique and functionally has somewhat different implications than other entities. Namely, political speech risks being in the form of rent-seeking, since the only incentives a for-profit corporation have in participating in the political process is attempting to alter laws to better enhance its profits. Hence, in the case of for-profit corporations, there is a strong case that this sort of association should be regulated, rights or not. |
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> | Until recently this differentiation has not mattered that much, since the primary method of political campaigning has been through mass media. Television advertising changed political campaigns forever, utilizing multimedia to bombard voters with ideas and symbols in their own homes. Essentially, the ideal candidate became the charismatic man with no history, a blank slate. TV ads are used to paint him as the American hero, while attack ads would paint his opponent as the Devil. These ads are fundamentally inefficient though because they retain Arnold’s assumption of homogeneity in belief. Candidates are limited in their ability to target specific audiences with specific advertising. They can target by region and somewhat by age, but since the symbols have to be aimed at a wider audience, and one which contained some people who may respond adversely to the symbols, this method is fundamentally inefficient. |
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< | There is no reason to
prevent a natural person from "participating" in the political
process in order to become richer, either. And free speech is not
only about participating in the political process. And the First
Amendment protects commercial speech. This whole analysis appears
confused. |
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> | The future |
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< | The case is more complicated though in the case of non-profit corporations like Citizens United, or media corporations. The opinion in Citizens United suggests that it is impossible to distinguish media and non-media corporations. Even though this reasoning is based in formalism suggesting that all corporations are the same, even functionally it may difficult to draw a line. Take NBC Universal, which for years was owned by GE. Previous to Citizens United, why did all the largest corporations not set up media arms to promote rent-seeking behavior? The reason most likely is that it would be inefficient. Rent-seeking, it seems, was more efficiently done through lobbying. In that sense, it seems there is some value in distinguishing media companies from non-media companies, as absurd as it might be. Of course, media companies will still engage in rent-seeking for themselves, but this is a separate issue that could be dealt with. |
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> | Modern developments may erase this barrier to efficiency in political (and perhaps commercial) advertising. First, technology has created networks that make it easier to target specific audiences. Cable television makes it possible to more specifically target audiences, but that change is insignificant compared to the development of the internet and social networks. Social networks create a whole new level of potential in specifically targeting advertising. Even in the absence of explicitly listed preferences as far as politics and other factors, social networks allow a profile to be built of individuals and target much more specific characteristics without any of the waste of mass media. |
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< | Again, what has this to do with anything? Corporations are persons with respect to section 1 of the Fourteenth Amendment at least since the decision of Santa Clara County v. Southern Pacific Railroad Co, 118 U.S. 394 (1886). The First Amendment is incorporated in the due process clause of section 1 of the Fourteenth Amendment since at least Gitlow v. New York, 268 U.S. 652 (1925). What are you arguing about and why?
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> | These same changes and others may also increase the effectiveness of symbols. Social networks can track the actual behavior of the target of advertisements, providing much more data on what makes advertising effective by monitoring real behavior instead of just reported behavior. Another development that may soon come is a deeper understanding on the biological level of the effectiveness of symbols. This study and others are beginning to find ways in which brain scans can reveal the unconscious effects of advertising, which often are very different from what the targets think they are. |
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< | Are all associations the same? |
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> | These developments offer a somewhat bleak picture of the future of political campaigns as one where the candidate with the most money and most sophisticated (and probably expensive) staff is able to control his or her image separately and effectively among numerous groups. In this world, candidates know which symbols will actually work on whom and they use them effectively towards the electorate. The strategy of taking a blank slate and painting it for the public is replaced by one where various segments of the public each get the image they desire, at least so far as the opponent is unsuccessful in counterattacking through negative advertising. As a result, charisma aside, the candidate with best staff and most money has a major advantage, which does not bode well for any aspirations of democratic government. |
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< | So what about nonprofit corporations? In this category, one might as well throw all forms of associations that do not gain profit. The Supreme Court in Citizens United seemed to acknowledge this conception of association, as their decision indicates that if citizens may give free speech through associations, why not through all associations? Here, we have an interesting line between formalism and transcendental nonsense. The court dismisses differences between different types of associations as formalism, rightfully so, but then decides that because speech is protected for some of them, it should be protected for all of them. But this completely ignores the question of why speech is being limited in these circumstances in the first place. |
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> | There are some ways in which the internet can help counter these effects. One is that it has become much easier to organize grassroots movements, since there is essential a close to zero cost public sphere in the internet in which to meet. By enlisting volunteers the organization can try to spread support both in the real world and the internet, though there is no reason these techniques can’t or won’t be used by well financed candidates, whose use of advertising can help gain volunteers as well. |
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< | What? This is completely
unclear to me. |
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> | Reform |
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< | Free Speech and Democracy |
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> | The traditional route to reform has been focused on restricting the ability of candidates to spend. However, campaign finance reform seems to be essentially dead right now, at least until the membership of the Supreme Court changes. And even the old levels of spending limits and rules and restrictions encourage the entrenchment of our current two party system. |
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< | The arguments in Citizens United focused on the specific nature of corporations, but this seems silly. The larger problem is the ability of some citizens and entities to have access to more speech than others. The concept of the First Amendment is that everyone has a right to disseminate their own ideas to others, but this original understanding of the First Amendment did not in any way imagine the forms of mass media we have today. What is the value of free speech if no one can hear you because some people can yell louder than you can? In theory the solution to this problem is to better help citizens organize themselves to solve collective action problems, but this ignores the incredibly unequal wealth distribution in this country. Over $1 billion was spent on the 2008 presidential election, but what significance is that if someone with $20 billion decided to back a candidate or run? There may be diminishing returns, but how do we have a functional democracy when such amounts of money are needed to be competitive? |
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> | The real issue that really needs to be confronted is why do we allow advertising in our homes in the 21st century? Advertising on TV and radio made some sense when watching it was free and restriction of access difficult, but now most TV viewers are paying for content and still receiving advertising. Most if not all of the functionality of websites like Google and Facebook can be replicated for a small fee per user. Money would still be an advantage in campaigns for hiring staff and the costs of production of media to distribute virally, but the loss of efficiency would make it less important. |
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< | One possible solution I would propose, constitutional issues aside, is trying to reduce the amount of “electioneering” altogether. Of course, calling activities electioneering is more transcendental nonsense in the sense that all sorts of activities could be considered political. If a TV station had shown reruns of “24” before the 2008 election, would that be political in nature? McCain? supporters might argue that it is because one of its heroes is a black president; Obama supporters might argue it emphasizes national security issues. Fundamentally, when is speech not political? To say speech is political or not is transcendental nonsense, since forms expression promote certain values and ideas that influence the political process. |
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> | Perhaps the problem as it stands now is exaggerated, as social networks and the internet do not advertise as effectively as television and some advertisers are growing skeptical they ever will. If networks start adopting more invasive advertising techniques, maybe users will stop using them. But either way, raising awareness that we need not and perhaps shouldn’t live in a world of advertising is an important step for both political and social reform. |
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< | So how can we fix our political process? There are certain things I think most people would agree that we would want. We want more candidates. We want these candidates to have an even amount of media coverage. And we want to have unlimited unbiased information about these candidates in this media coverage. Free speech is only important so far as it promotes democracy. To use free speech rights as an excuse to harm democracy is transcendental nonsense, using formality and ignoring the results. The question remains, what system would better achieve these results? |
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> | I would like to keep editing over the summer. |
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< | I don't understand this draft. It doesn't seem to be in touch with the law it purports to be discussing, and I don't understand the political analysis either. What is the central point of the essay? Let's put that out first, clearly, show how whatever your point is relates to the constitutional law of the United States as it actually exists, if that's relevant, and then explore whatever the implications of the idea are for current political reform efforts, if any. |
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> | -- DanielKetani - 18 May 2012 |