Why Brands and Politics Don’t Mix

“Republicans buy shoes too.” -Michael Jordan

The nomination of Elena Kagan to fill the seat of retiring Justice John Paul Stevens has reheated an issue that is now the most controversial in Kagan’s career, if not the recent history of the Supreme Court: the court’s overturning last January of the Bipartisan Campaign Reform Act provision that prohibited corporations and unions from using general treasury funds to pay for “electioneering communications” (expressly endorsing a candidate) within 30 days of an election.

As many people now know, Kagan, as solicitor general, represented the U.S. (the losing side) in the case, Citizens United v. Federal Election Commission. The case was triggered by the Federal Election Commission’s refusal to allow the video-on-demand release of the gleefully electioneering Hilary: The Movie during the Democratic presidential primaries.

The Supreme Court majority, in speak-soft-so-we-can-really-get-away-with-this tones, declared the FEC was “chilling” and “suppressing” political speech. More unusually, the court also asserted that corporations and unions had the same First Amendment rights to political speech as human beings.

The dissent, written by Stevens in prose that has nothing left to lose, offered a counter view spiced with disgust. The court, he wrote, “operates with a sledge hammer rather than a scalpel when it strikes down one of Congress’ most significant efforts to regulate the role that corporations and unions play in electoral politics.” He concluded with a phrase he’d been building toward for 90 pages: “While American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics.”

Subsequently, the Citizens United decision has produced no end of spectacles. A president scolds the Supreme Court in his State of the Union address for opening “the floodgates for special interests” — causing one of the justices, sitting in the audience, to splutter, “Not true, not true.” A commentator on MSNBC alleges the ruling “might actually have more dire implications than Dred Scott v. Sandford,” while over at Fox an editorialist declares, “The Supreme Court protected us on Thursday.”

Listening to the commentary, you’d almost expect the next step to be big corporate names picking teams and lining up on opposing sides of the red-blue divide. Something like:

• Red Team: Coke, Walmart, Dell, Microsoft.
• Blue Team: Pepsi, Target, Apple, Google.
               
But for all the passion on both sides of the question, it’s fair to ask if, in actual practice, the decision even matters much at all.

Let’s take on the worst fears, and perhaps highest hopes, concerning how corporations will use their new rights to influence the election of candidates. (Interestingly, labor unions will enjoy the same rights, but little has been said about this — as if unions have been loathe to influence elections in the past.)

When in this debate people and the press speak of “corporations,” you can be pretty sure they aren’t speaking of groups like Citizens United. They are speaking of the big brand names of business. The Dow 30. The Fortune 500.

 
The reality is, there are innumerable practical bars to prevent such corporations from using the powers of their new personhood to engage in explicit “electioneering.”

As a purely internal matter, for instance, who gets to decide for whom the corporate “person” gets to vote? The directors of the corporation? The officers? Employees? The shareholders? The Supreme Court majority acknowledges these tangles, but proclaims its belief in “corporate democracy” — a phrase that could only have been invented by people who have never worked in a corporation or submitted to a corporate reporting structure.

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