Citizens United Research Articles

Corporations and American Democracy eds by Naomi R. Lamoreaux and William J Novak

Reviewed by: Corporations and American Democracy eds by Naomi R. Lamoreaux and William J Novak K. Sabeel Rahman (bio) Corporations and American Democracy. Edited by Naomi R. Lamoreaux and William J Novak. (Cambridge, Mass.: Harvard University Press, 2017. Pp. 528. $35.00 cloth) There is no shortage of social science and legal literature on the corporate form. This new volume edited by Naomi Lamoreaux and William Novak not only offers a series of individually excellent essays exploring the history, law, and broader institutional implications of corporations, it does so in a way that offers genuinely fresh insight for thinking about the role of corporations in the history and present of American democracy. As the editors note in their introduction, corporations lie in a fundamentally ambivalent position with respect to foundational ideals of American democracy: "On the one hand, the corporation has long been seen as a useful and alluring vehicle for harnessing and distributing the collective energies of individuals—an engine of economic growth," but on the other hand, "that same corporate vehicle has been viewed with suspicion as a potentially dangerous threat …. a site of coercion, monopoly, and the agglomeration of excessive social, economic, and political power" (p. 2). With this volume, the editors have assembled a set of essays from top scholars in history, law, and social science that explores this fundamental tension from the start of the American republic to the present. The volume proceeds in roughly chronological order, with each part comprised of several essays all grouped around a common finding or theme. Part I explores the history of the corporation in the early Republic. Chapters by Eric Hilt, Jessica Hennessey, and John Wallis revolve around the struggle to secure some degree of independence for corporations as legal entities from the state, and from politics, and taken together, tell a somewhat surprising historical account. As these chapters show, early fights for general incorporation laws represented not an assertion of unchecked corporate power, but rather an attempt to insulate and protect a wide range of civic and economic associational forms from political patronage, corruption, and lobbying. General incorporation was a critical achievement in the early [End Page 529] nineteenth century, limiting what had become patronage-infused influence over the allocation of corporate charters. Part II picks up the story in the late nineteenth century. By now, the corporation has come to look quite different than its early Republic origins, in the form of large, concentrated private power from the rise of robber baron monopoly power in railroads and big finance to the growing tensions between managers and workers in the face of rising industrialization and labor upheaval. In this part, essays by Daniel Crane, William Novak, Steven Bank, and Ajay Mehotra focus on the efforts by reformers to reassert public governmental control to oversee, regulate, and restrain corporate power. Just as the struggle against political corruption in the early nineteenth century created what would become the legal foundations of the corporate form, during this era the battles to reassert public control over now vastly increased corporate power created the legal foundations for the modern regulatory state. In a sense, it was the struggle to restrain corporate power in this period that drove some of the most critical innovations in American political development and statecraft. Part III then documents the twentieth century transformations of the corporate form. Jonathan Levy charts the rise of the nonprofit corporation as a distinct form of corporate organization, while Margaret Blair, Elizabeth Pollman, Ruth Bloch, and Naomi Lamoreaux explore the legal and intellectual history behind the rise of formal legal and constitutional rights for corporations in the form of corporate personhood and under the Fourteenth Amendment. A key finding across these essays by Block and Lamoreaux, Blair and Pollman is that more recent expansions of corporate legal rights have tended to view corporations as a monolithic category, failing to take into account not only the plurality of forms and uses within the rubric of "the corporation," but also mistakenly viewing contemporary economic corporations with their vast powers as akin to the more associative corporate organizations of earlier eras. These historical misapprehensions set the stage for the Supreme Court's decision in Citizens United...

Elements of the Support Structure for Campaign Finance Litigation in the Roberts Court

This article considers the organizations, financial patrons, and lawyers involved in two significant campaign finance cases decided by the Roberts Court: Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission. The research indicates that these elements of the support structures for litigation on both sides of these cases, like the justices to whom they direct their advocacy, fall into well-defined opposing and partisan camps. It also suggests that strategic case selection on the challengers' side, the diversity of organizations supporting their positions, their network and coordination, and a simple and powerful frame around which to rally may have contributed to their success and to the Roberts Court's fundamental reshaping of campaign finance doctrine.

Feminism and the Realpolitik of Elite Philanthropy

Feminism and the Realpolitik of Elite Philanthropy Francesca Sawaya (bio) Joan Marie Johnson. Funding Feminism: Monied Women, Philanthropy, and the Women's Movement, 1870–1967. Chapel Hill: University of North Carolina Press, 2017. xi + 303. Illustrations, notes, bibliography, index. $39.95. Molly McClain. Ellen Browning Scripps: New Money and American Philanthropy. Lincoln: University of Nebraska Press, 2017. xi + 303. Illustrations, notes, bibliography, index. $34.95. In recent years, historians have returned to the "paradox," as Steve Fraser and Gary Gerstle put it in Ruling America (2005), that elites rule in our democracy. "Sometimes they seem to rule with the people's interest in mind," Fraser and Gerstle write, "sometimes not" (p. 1). Philanthropy has been one important practice that enables scholars to study that paradox. Because philanthropy is often studied as a ruling class phenomenon, however, scholars have tended to ignore the difference that gender, race, or ethnicity has on this class practice. Both Joan Marie Johnson's Funding Feminism: Monied Women, Philanthropy, and the Women's Movement, 1870–1967 and Molly McClain's Ellen Browning Scripps: New Money and American Philanthropy expand our understanding of twentieth-century philanthropy by focusing specifically on gender—on elite white women's involvement in ruling America. How did wealthy women engage in philanthropy? What did wealthy women's secondary status—at least relative to wealthy men—mean for their philanthropy? Was their philanthropy different than elite men's? Johnson argues directly and McClain suggests that wealthy white women's experiences of (relative) inequality meant that their philanthropy was more progressive and more engaged by the "people's interest" than the philanthropy practiced by elite men. Johnson furthermore redefines philanthropy, reading it as the realpolitik of elite rule in a capitalist democracy. Johnson's book therefore makes an invaluable contribution to the history of both philanthropy and the women's rights movement in the United States, compelling us to confront important questions about the challenges for democracies when money can dictate political outcomes—even democratic outcomes. [End Page 605] Funding Feminism "follows the money" to provide a riveting new vantage point on the fight for women's rights in the twentieth century. Johnson's thesis is that "the women's movement owes its success to the financial backing of [wealthy] women" (p. 5). Arguing that large-scale "scientific philanthropy" emerges simultaneously with "an organized women's rights movement" (p. 4), Johnson asserts that the "timing and success" of the major gains women made in the twentieth century in suffrage, labor, higher education, and birth control were "dependent on the major gifts only the wealthy could give" (p. 14). Considered within the historiography on philanthropy, there is a bit of sleight of hand here: almost none of the women Johnson tracks created nonprofit foundations—the characteristic expression of scientific philanthropy. Furthermore, even recent studies of philanthropy often focus on it as a "third sector" outside of government and business and therefore exclude direct political donations from their purview. Nonetheless, Johnson is usefully polemical here: elite philanthropy is an expression of the money/power nexus in the United States, she argues, and there is no more clear expression of that than political donations. Philanthropy is the top-down realpolitik of capitalist democracy. As Johnson writes, "access to political power" has always depended on "access to funding" (p. 18). The 2010 Citizens United decision, she says, demonstrates how extreme this dependency has become in our own day, but it also demonstrates that "continuity rather than change over time" is what we must track in political donations of elites (p. 11). Johnson, however, usefully complicates her definition of philanthropy as top-down realpolitik in terms of the women's movement. First of all, she points out that wealthy women's philanthropy, as opposed to that of men, was a weapon of the comparatively weak: "At a time when … [women] could not vote and when education, professions, and other opportunities were limited for them, philanthropy offered a unique tool" (p. 7). Indeed, because of elite women's secondary status legally and politically, and especially because of their financial vulnerability, their donations and activism were galvanized, according to Johnson, by a situated and experiential understanding of inequality. Like "many philanthropists...

The Proliferation of Rights-Based Capitalist Violence and Pedagogies of Collective Action

The Proliferation of Rights-Based Capitalist Violence and Pedagogies of Collective Action Jodi Melamed (bio) In her 2017 presidential address, Kandice Chuh addresses the suppression of dissenting scholars and the accelerated undermining of education in the Trump era with an intellectual boldness and along lines that I have come to associate with the scholarship of many ASA-affiliated thinkers. She does not defend academic freedom; rather, she analyzes how the defense of academic freedom often strengthens a culture of "protest nationalism," in which expressions of dissent reinforce and align with the rationalities of the nation-state. She launches a full-throttle critique of "the structured embrace of academic freedom in a liberal key." For Chuh, the true problem of academic freedom is not what scholars may or may not say but "the interested material power behind the very conception of the autonomous rights-bearing citizen iterated by academic freedom and that marks its liberal-nationalist grounds." Her second act challenges ASA members to deliberate a role for ourselves as an "us," associating in the association, in the historical present. Casting the pedagogical as where we do dissent, and dissent itself as a "point of departure," Chuh asks us to think carefully about "the work of associating" and pointedly asks, "What will we have wanted the ASA to have been and done some decades hence?" Implying a contrast with the AAUP ("through associating, the AAUP professionalized the activities of teaching and research"), Chuh lets us know that she expects our together work to be informed by the approaches to vitalizing collective existence ASA constituencies have learned from social movements and interdisciplinary frameworks attuned to the disavowed violences of freedom in racial and colonial capitalist modernity. In my response, inspired by Chuh's critique of academic freedom, I examine the proliferation and intensification of rights-based capitalist violence under the Trump administration and its connection to the assault on universities, public education, and critical thinking more generally. In a nutshell, I argue that we are experiencing a partial remaking of rights under the combined pressure of the ultracapitalist radical Right, a block that leads today for extractive, financial, [End Page 179] and corporate global capitalism, and the political resurgence of a libertarian-leaning ethno-nationalism, which we can think of as a highly individualistic (neoliberalized), lightly veiled version of white supremacy. These forces come together around relatively new articulations of "rights," which grow out of relatively old twentieth-century libertarian notions of economic liberty, and are routed through the First Amendment, antidiscrimination claims, and civil rights redone as libertarian counterrights. They amount to this: the "right" to be unencumbered by concern for the well being of others and the planet. They come into play as tactics for coded attacks on democratic government itself, which for plutocratic libertarians represents majoritarian coercion of minority elites through taxation and other constraints on economic liberty. More antisocial even than everyday neoliberal rationality (for which markets and exchange remain minimally social), radical right and libertarian appropriations of liberal rights abstractions are radically individualistic and property supremacist; they argue for the unbridled "right" of entrepreneurs to accumulate capital in any manner, without limits, regardless of the consequences to anyone else. They include the "free speech" rights of Citizens United, which secured impunity for money to influence the state apparatus as a core exercise of First Amendment rights, and the "free speech" rights of radical right propagandists to speak on college campuses and to be protected from protest and criticism. They include state-level "antidiscrimination" measures, such as the many antiboycott bills that forbid states from contracting with businesses and individuals who support a boycott of Israel (using discrimination against Israel to abrogate boycotters' First Amendment rights and to block organized labor from taking up the issue).1 Individual rights arguments are also forwarded to protect "the taxpayer" from being forced to pay for the government to provide services to other people, including, increasingly, public education. Finally, there is the "right not to have rights laws," including "right to work" laws and state laws forbidding municipalities from passing living wage, antidiscrimination, and voter protection ordinances.2 For these appropriations of liberal rights abstractions to do their work as well...

Super PACs and climate change denial

The purpose of this paper is to illustrate the influential role of Political Action Committees (PACs) and more specifically the so-called “Super PACs” in climate change denial within the United States. The decision of the US Supreme Court in the case Citizens United v. Federal Election Commission in 2010, followed by a lower court ruling over the case SpeechNow.org v. FEC , created the foundations for the emergence of Super PACs. Their large-scale involvement, asserting a corporate agenda, is reflected in the political decision-making process and its outcomes. Within the United States, politics is the main arena shaping people’s beliefs about the effects of climate change, with roughly 38% of Americans expressing some interest in the issue of global climate change even as 26% say they care not too much or not at all about the issue. By analyzing empirical data (including public opinion polls) and industry/issue related expenditures made by PACs and Super PACs, the paper attempts to show the effect of these corporate-financed Political Action Committees not just on policy development and decision-making, but also on public perceptions and opinions.

Corporate Governance Beyond Economics

In recent years, changes to state and federal law have increased pressure on corporate law to serve as an ordering mechanism for interests and values beyond economics. On the federal front, two U.S. Supreme Court cases have put existing corporate law in a new quasi-constitutional light. In the landmark decisions of Citizens United v. FEC and Burwell v. Hobby Lobby Stores, Inc., the Supreme Court has pointed to state corporate law as the mechanism for ordering political and religious activity. In addition, Congress, the SEC, and federal courts have been embroiled in battles about the scope and appropriateness of regulating corporate speech and disclosures on topics such as conflict minerals and political expenditures that are driven principally by humanitarian and democratic concerns rather than economic goals. On the state law front, a movement of social entrepreneurs has catalyzed a majority of states to adopt legislation for a new form of business entity — the benefit corporation. The public push for this form of corporate entity harkens back to early American law, permitting businesses to be chartered to pursue a dual mission of profits and a social, religious, or environmental goal. This chapter examines these developments and their implications, and anticipates future challenges on the horizon, including with respect to corporate commercial speech and freedom of association. Significant issues remain to be worked out in coming years in reconciling the increased social, political, and religious activity of business corporations.

Investor Reaction to Covert Corporate Political Activity

Research summary: Citizens United v. Federal Election Commission and subsequent developments created a covert channel for firms to allocate resources from corporate treasuries to political activity. Through the use of a financial market event study of an accidental disclosure of firms' contributions to a Republican nonprofit organization, I examine investors' reactions to covert investment in independent political expenditures. I find that, on average, contributing firms experienced positive abnormal returns around the disclosure event and that these abnormal returns were more positive for firms in heavily regulated industries as well as those previously making campaign contributions to candidates. However, firms that recently faced a shareholder resolution on political spending disclosure experienced negative abnormal returns, suggesting that the controversial nature of covert activity moderated investors' reactions.Managerial summary: The purpose of this study is to examine how investors reacted to an accidental disclosure of firms' investments in “dark money,” a new form of corporate political activity allowed by the U.S. Supreme Court in its Citizens United decision. I find that, on average, investors reacted positively toward firms identified as making these new political investments, especially if the firms previously engaged in electoral politics or operate in heavily regulated industries. However, this reaction turned negative if the firm recently faced a shareholder resolution asking that it voluntarily disclose all of its political investments. An implication for managers is that they should consider their firms' legal and information environments as fully as possible before committing resources to new and potentially controversial political tactics. Copyright © 2017 John Wiley & Sons, Ltd.

Postdiluvian? The Effects of Outside Group Spending on Senate Elections After Citizens United and Speechnow.org v. FEC

Abstract In 2010, the Supreme Court’s decision on Citizens United v. FEC, fueled public outcry about the growth of the cost of the political campaign and the influx of outside money in the form of independent expenditures. President Barack Obama seemed to agree with this speculation calling independent expenditures, “dark money” that “pulls our politics into the gutter” [Obama, Barack. 2015. “The Citizens United Decision was Wrong.” (Press Release). Retrieved from https://www.whitehouse.gov/the-press-office/2015/01/21/statement-president.]. Indeed, signs pointing to the increase in the cost of campaigns are correct, as 2014 saw the most expensive congressional elections in history. In this paper, we examine the effects of outside group spending on Senate races in 2010, 2012, and 2014. We find that outside group spending does play a significant, though small role in determining the vote share of a candidate. We also find that outside group spending in support of a candidate is generally more effective than outside group spending against a candidate, especially for the incumbent. Still, outside group expenditures pale in comparison to campaign expenditures for the challenger in terms of overall effect.

Small Donor Empowerment Depends on the Details: Comparing Matching Fund Programs in New York and Los Angeles

Abstract Political campaigns have long been financed by people with well above average incomes, but the balance has tilted dramatically since the Supreme Court’s 2010 decision in Citizens United v. FEC. A number of jurisdictions have been looking to rebalance the incentives through new (or updated) public financing programs. Much of the discussion about their potential effects, however, has been sweepingly generic. But we know that these programs do differ from each other and have good reason to expect that “success” or “failure” will depend both on their goals and the programs’ details. This article focuses on one type of program that has become a model in recent years. Until recently New York City was the only jurisdiction with a multiple matching system explicitly designed to increase the role of small donors.Previous studies noted apparent successes, but it has been difficult to feel comfortable with only one jurisdiction to test. After Los Angeles revised its system in 2013, serious comparisons became possible. This article finds that New York City’s campaign finance matching fund program increased the number, proportional role, and diversity of small donors in city council elections but that the Los Angeles program was substantially less effective. The findings were confirmed through a difference-in-differences procedure that tested each city council over time against state legislative districts representing the same geographical space. A series of explanations relating to the programs’ details were tested, leading us to conclude that the policy details were affecting the results. The results were also different in both cities for mayoral and city council candidates. This suggests alterations may be needed if one were to consider the model for offices with larger constituencies, such as Governor or the US Congress. Finally, the article concludes with a discussion of major arguments for and against increasing small donor participation as a goal for public policy.

Does The U.S. Campaign Finance System Favor Republicans

There is a common belief that the pro-regulatory approach of Democrats, makes them more determined in the fight against big money in campaign elections, whereas Republicans, supporting recent Supreme Court decisions in Citizens United v. F.E.C. and McCutcheon v. F.E.C., benefit from the system more than their political counterparts. The aim of the article is to analyze the real character of the U.S. campaign finance regulations, both from legislative and judicial perspective, and to determine which political party benefits from the system: Republican or Democratic? By underlining the Buckley rule that ‘money is speech’ the Author suggests that campaign contributions and spending are deeply rooted in the character of American political system determining the political future of candidates of both political parties. The article refers to election cycles since 1970s, but it mainly focuses on recent election cycles, including the 2016 presidential election. Key words: campaign finance, Republicans and Democrats, U.S. politics and law

Corporate Political Disclosure: Theoretical Construct Development and Measure Validation

Corporate political activity (CPA) has long been a venue by which firms seek to enhance competitive advantage, either at the firm or industry level. On 21 January 2010, the Supreme Court of the United States delivered its verdict in Citizens United v. Federal Election Commission. The Court struck down sections of the Bipartisan Campaign Reform Act of 2002 (the McCain-Feingold Act), giving corporations more freedom in election activities. Activists and business leaders quickly responded to the Court’s decision. The former sought greater disclosure; the latter anticipated more pressure from politicians and parties. A slight majority of business leaders also disagreed with the practice of unlimited and undisclosed political contributions. In this context, we define and develop an index to measure the construct Corporate Political Disclosure (CPD). We extend extant research by measuring the information companies voluntarily disclose rather than what candidates are mandated to disclose. We compiled a list of potential index items from research and consultation with activists, institutional investors and corporate officers. We content analyzed publicly available information from the S&P 100’s corporate websites to pilot our index. We find that CPD varies greatly. The mean score on our 57-indicator index was 22 (s.d. = 23). We identify a few disclosure exemplars and more laggards with 3 percent of firms achieving a 50 or more and 8 percent of firms disclosing no information on their websites. We demonstrate that CPD can be measured and that an index can be used to benchmark and compare companies over time.

Citizens United v The Federal Election Commission, Inverted Totalitarianism and Contemporary Fiction

In this paper I will explore the results of the 2010 Supreme Court Citizens United vs The Federal Election Commission as reflected in the contemporary literature. I will look at the role the corporation plays in American politics post Citizens United. My primary texts is the novel Super Sad True Love Story. My research question is: did the Citizens United decision open the door for ‘inverted totalitarianism’ to seep through the cracks of American society Using the allegorical novel Super Sad True Love Story by Gary Shteyngart, I will show how Citizens United, the political theory of Hannah Arendt, and the novel parallel and reflect the reality of our culture; where the weight of corporate oppression squashes the individual leaving that person simultaneously exposed and in complete loneliness.

Did the Trumpian Counterpublic Dissent against the Dominant Model of Campaign Finance?

Trumpism poses a difficult challenge for counterpublic scholarship: should forms of right-nationalism dissenting against dominant publicity be analysed using the same concepts as other types of dissent? This article argues that Trumpism demonstrated counterpublic dissent against dominant campaign finance publicity by criticising the influence of wealthy donors in both political parties. Trumpism also offered an alternative to the dominant logic of necessary ethical compromise shaping publicity about campaign finance in the wake of the 2010 Citizens United US Supreme Court decision. However, Trumpism failed to foster greater democracy because of the way it posed Trump himself as the only necessary solution to the problems of plutocracy. Counterpublic theory should revisit the way it balances its normative and empirical dimensions to account for the rise of radical-right nationalisms and their publicity outlets.

Citizens United: A Theoretical Evaluation

The 2010 US Supreme Court’s decision on Citizens United v. Federal Electoral Commission lifted restrictions on the funding by unions and corporations of groups engaging in independent political advertising (outside spending). Many have criticized the majority opinion’s premise that outside spending cannot corrupt or distort the electoral process. Fewer have examined the implications of this decision under the Court’s assumptions. Using a game-theoretic model of electoral competition, we show that informative outside spending by a group whose policy preferences are partially aligned with the electorate may reduce voter welfare. This negative effect is more likely when policy information is highly valuable for the electorate or congruence between the group and voters is high. We further show that the regulatory environment produced by the Court’s decision is always suboptimal: the electorate would be better off if either groups were allowed to coordinated with candidates or if outside spending was banned altogether.

The Foundations of U.S. Public Opinion About Campaign Finance in the Post-Citizens UnitedEra

Abstract Those seeking to influence campaign finance policy often invoke public opinion to support their legal and policy arguments. Thus, an understanding of the factors that explain citizens' views about the topic can help illuminate the political landscape surrounding it. This study examines the foundations of public opinion about campaign finance issues that emerged in the wake of the 2010 U.S. Supreme Court decision in Citizens United. An analysis of original data from a national survey found that political predispositions—including party identification, political ideology, external political efficacy, trust in corporations, and political interest/attention—predicted individuals' opinions, as did use of the Fox News cable channel and satirical television news programs. The results speak to how a range of actors may shape and capitalize on the nature of public opinion here.

Is the Supreme Court at Odds with Itself When It Comes to Democracy? A Look at the Disparities Between Crawford and Citizens United

For a democracy to truly function, most—if not all—eligible citizens must participate. That means voters need fair access to the booth; but they also need a reason to get there, a belief that their votes count for something. As of now, our country isn't living up to that standard. The last decade ushered in a remarkably tougher landscape for voters, much of it thanks to the Supreme Court's recent decisions. In less than a decade, five justices—with some overlap in the decisions' majorities—gave voter ID laws the green light, unleashed a flood of new money from corporations into the political realm, and eviscerated a longstanding federal law that once stopped states from implementing limiting voting measures. The result? Democracy got pummeled at both ends. Voters, particularly low-income and those of color, started facing hurdles in numbers not seen since the 1960s. When they do make it to the ballot box, many fear their votes will get drowned out by special interests, dumping unprecedented amounts of cash aiding the election of candidates who, in turn, respond to the “buyer's” needs over those of the public.

Favoring the Press

In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to independently spend unlimited amounts of money in political campaigns. The Court rested its 5-4 decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.” To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction — the treatment of news media corporations. The Court assumed that there is no constitutional difference between media corporations and other corporations and that if the government were able to limit the speech of some corporations, then it would also be free to censor the speech of media corporations. This was a thought that the majority called “dangerous, and unacceptable” and that Justice Antonin Scalia said “boggles the mind.” To the Citizens United majority, the news media corporation example settled the question on corporate speech rights, because any other rule would be unconstitutional speaker-based discrimination and open the doors for regulation of the news media. But was the Citizens United Court correct about the media corporation dilemma? Is the government no more able to regulate the expressive activities of Exxon Mobil Corp. than it is of the New York Times Company? Must all speakers be treated uniformly whether or not they are members of the press? And does the Press Clause (and not just the Speech Clause) play a role in this analysis? In this article, I push back on the claim that the First Amendment prohibits speaker-based classifications by the government. Rather than ban such distinctions, the Press Clause traditionally has worked in support of differential treatment for the press. History, court precedent and legislative practice, moreover, demonstrate how favoritism for press speakers has been condoned and often encouraged. This debate over the meaning of the Press Clause could have significant ramifications. A jurisprudential drift of press rights away from a protection of core press functions and toward a constraint on the ability of the government to recognize the differing roles of press speakers could significantly threaten the vital structural safeguards of the Fourth Estate.

Strategy for Democracy: Why and How to Get Money Out of Politics

Even President Trump's inaugural identified as his central issue whether our government is controlled by the people.” Polls show this to be a leading public concern that is ignored by the bipartisan political establishment which controls government for the plutocrats who pay to play instead of for the people who vote. (Ch. 1) This issue of failed democracy likely accounts for Trump's victory over the Clintons' plutocratic political machine which offered more diversionary identity politics but no plausible solution to the systemic political corruption Trump described. See also this author's Amendment Diversion, http://ssrn.com/abstract=2722336. That plutocratic rule generates extreme inequality while threatening catastrophe on several other vectors is focusing attention on its cause. (Ch. 2). While some recognize the cause of political corruption, no one, much less Trump, has offered an effective strategy to solve the deepening problem that democracy has been replaced by plutocracy. (Ch. 3) Bernie Sanders who made this issue a cornerstone of his campaign against Clinton had no better strategy to offer than the futility of advocating a constitutional amendment. This is the standard diversion from effective anti-corruption strategy that is offered by the corrupt Democratic Party and its professional activist allies. Citizens United has been the diversionary target of such advocacy, though it is of minor importance to the problem. Even worse is the professional activists' sloganeering about corporate personhood which is rooted in a fiction about what the infamous Citizens United decision in fact held. (Ch. 4)The immediate cause of the current crisis of democracy is not the lack of constitutional amendments but a judicial supremacist Supreme Court (Ch. 5) Plutocracy precludes progressive amendments in any event. (Ch. 6) Judicial supremacists, in any event, distort the meaning of amendments as they have the First Amendment, which does not require toleration of influence peddling and paid plutocratic propaganda in elections. The supremacist Court's 1976 ruling that it does, based on shell-game logic, has ushered in this second Gilded Age, our era of systemic political corruption. (Intro, Ch. 7) Professional activists who market the amendment diversion as if it were a cure for this problem have objectives other than restoring democracy. (Ch. 8) The history of constitutional amendments teaches that this commonly touted, but seldom analyzed amendment “solution” is a counterproductive waste of political energy to counter an act of judicial supremacy. (Ch. 9) This book decries the general void in strategic thinking on the key progressive objective of fighting plutocracy. It suggests effective strategies to solve the contemporary crisis of democracy within the provisions of the original Constitution. (Ch. 10,11). It proposes a fully realized draft of a federal statute that would be a useful initial demand for effective national reform and a starting point for further strategic discussion. (Ch.12)

Which Is More Dangerous--the Dark Web or the Deep State?

Much has been made of the dark web's dangers, but democracy has more to fear from Citizens United and the global surveillance industry than Silk Road or Tor.

The Corporate Personhood Two-Step

The corporation cannot exist without founders complying explicitly with the requirements for incorporation provided by state statutes. The artificial entity theory acknowledges that a corporation does not exist until its founders meet all requirements for corporate formation imposed by the state. It also acknowledges that while human beings can do business collectively, contracting for many elements of the corporation without any state intervention, to take full advantage of the corporate form parties must comply with state requirements for formation. A corporation is also, by design, a new and distinct entity divorced from its people. The real entity theory acknowledges that once a corporation is formed, it has rights wholly separate from its founders that belong only to the corporation itself. By merging the artificial entity and real entity theories, the Court may properly define corporate rights. Because of the dual nature of the corporation, corporate personhood should be a question of fact, not a matter of law. Corporate personhood requires weighing the evidence and making a case by case determination based on the choices made at formation and how the corporation operates. Determining a corporation’s rights requires the Court to engage in a two-step analysis that gives deference to this duality. The Court must first rely on how the corporation is defined by statute to determine whether it is required to acknowledge the existence of the right for the corporation itself, then decide whether state action infringes on that right if it exists. Problems arise in corporate personhood jurisprudence when the courts give rights to corporations that states, legislatures, and founders did not intend. When granting corporations constitutional rights based on the rights of founders and shareholders in the aggregate, the Court is ignoring the parameters of the state law definition of the corporation, as well as the affirmative choices of corporate founders who deliberately choose the corporation over other forms of business. Citizens United and Hobby Lobby are recent examples of this dismissal of corporate statutes for the sake of protecting the rights of the people who make up the corporation. Contrary to the commentary of the Court in these decisions, the corporation is not designed or intended to be an association of citizens. Engaging in a two-step analysis shows that it is impossible for a corporation to be an association of citizens.