Judicial elections and artificial persons

Judicial elections and artificial persons

- in Progressive Voices

Earlier this summer, the Supreme Court affirmed its 2010 Citizens United decision, holding that a 100-year old Montana law barring direct corporate contributions to political campaigns was an unconstitutional violation of the free speech rights of an anti-environmentalist organization with ties to the energy industry, and conservative multimillionaires Art Pope and the Koch brothers. North Carolina filed a brief supporting Montana’s position, and the Court’s decision promises to further erode the state’s ability to defend against the growing influence of corporations, especially in judicial elections.

The Court’s decision privileged the theoretical rights of artificial persons over the real rights of natural persons, and looked to one of the most corrupt periods in American economic history as a model for our current political landscape. We seem to be learning the wrong lessons from history.

While the legal fiction of limited corporate personhood predates the republic, over the last 125 years, corporations have pushed for more and more of the rights associated with natural persons. In 1886, the Supreme Court extended the due process and equal protection guarantees of the Fourteenth Amendment to corporations, allowing railroad companies to reduce their tax burden. In 1978, the court held that the First Amendment right of free speech extended to corporations. In the controversial 2010 Citizens United decision, the court expanded those rights, ruling that corporations could engage in direct political contributions to “independent expenditure committees” as a form of protected speech. In his opinion, Justice Kennedy claimed that corporate contributions do “not give rise to corruption or the appearance of corruption.”

History does not support that assertion, and the Montana law at issue in the recent court case is a good example.

The 1912 law was the result of a very popular voter initiative to counter the phenomenal corruption gripping the state in the early twentieth century, as three, rival “Copper Kings” jockeyed to control the state’s political system and natural resources. One of them, whom Mark Twain described as “as rotten a human being as can be found anywhere under the flag” spent upwards of $1,000,000 of his personal fortune to purchase votes for his successful 1899 appointment as U.S. senator. Paying between $10,000 and $50,000 per legislator’s vote (who, before the Seventeenth Amendment appointed Senators), he claimed he “never bought a man who wasn’t for sale.”

He was forced to resign from the senate the following year, but immediately redoubled his efforts, attempting to buy control of the state legislature outright in order to avoid having to pay for individual votes. His rival was more effective by buying two of the three justices in the district court. He effectively gained control over the docket and tied up other mining companies in lengthy and expensive court challenges.

Corruption, for the voters of Montana in 1912, was not an abstract idea. The law stood for 100 years because it protected the political system in a state with valuable natural resources and a small population from the enormous international companies renowned for their willingness and ability to buy elections.

After Citizens United, independent expenditure committees have made their presence felt in almost all elections. But in North Carolina, and especially in the wake of last month’s court decision, the impact will be felt in judicial elections, as Doug Clark of the Greensboro News-Record has suggested. The only reason for large corporations to contribute to campaigns is to elect candidates perceived to be sympathetic to corporate interests, and to ensure access and influence once elected. While a legislator might have a local interest in supporting a specific corporation (e.g. jobs), the courts have consistently understood, as Chief Justice Roberts noted, that “judges are not politicians who can promise to do certain things in exchange for votes.”

While there is no evidence to suggest that the sort of corruption found in Montana in the early 20th century, or in West Virginia in the early 21st century has taken hold in North Carolina elections, there are still compelling reasons to keep corporate money out of judicial elections. Unfortunately, the North Carolina Judicial Coalition has already begun to raise corporate money to support conservative incumbent justice Paul Newby’s reelection bid to the state supreme court. At the same time, the Republican-dominated General Assembly has slashed the state’s election funding in next year’s budget.

The combination of expansive electoral rights for artificial persons and reduced voting access for real people distorts the political process, and now threatens our judicial system. Corporations are not people, and we must protect elections — especially judicial elections — from their influence. Let’s hope North Carolinians learn and act upon this critical lesson before our state politics are damaged beyond recognition.

Dr. Damon Akins is an  Assistant Professor of History at Guilford College in Greensboro.