Democracy and Public Investment

January 30, 2018

What democracy can do is obscured by today’s free market, anti-regulatory, anti-government rhetoric. That rhetoric creates real winners and losers, but taking it at its word, it’s based on an everyone-for-him-or-herself form of individualism. It asserts that our successes and failures are almost solely the result of our personal abilities and denies that what we accomplish always rests in part on what society gives us.

That flatly contradicts reality. This country blossomed because we worked together, with a spirit of cooperation. Cooperation that made associations, large businesses and elective government possible.

Everyone-for-him-or-herself-alone ideologues shouldn’t blind us to the public role in development. America’s Founders knew they needed government. As aptly described in the show Hamilton, Alexander Hamilton, Robert Morris and their colleagues understood the importance of a banking system and had government create it. Across the thirteen original states, Founders used government to open transportation to the west. Washington himself was deeply involved in efforts by Virginia and Maryland. When New York, which had a sea level path to the interior, finally built the Erie Canal, it set the path for industrialization and settlement for a century and a half, and made the North into the powerhouse that won the Civil War.

Today we’ve lost a shared sense of the public investments necessary to continued development, and the foundations of American success are falling apart. Bridges take unsuspecting occupants into the rivers and ravines below. Water systems deliver lead, mercury, and an armory of toxins. Sewage systems poison rivers, people and the living things that depend on them. Trains crash for lack of decent equipment. The electronic grid barely carries ordinary loads. The next solar storm can take the electrical and internet grids down, bringing the country to a lengthy stand-still. American colleges and universities have been the envy of the world but stripping their resources will ensure their replacement abroad and with them the R&D that has been central to American leadership. We are the wealthiest of countries but too cheap to fund our infrastructure, terrified that taking care of America would actually put people to work, or that public spirit in building and rebuilding America will help someone else’s business.

The best stimuli for business are investments in the capacity of the public, infrastructure for getting things done, and rules that create a common floor of good behavior. The idea that everything depends on lowering taxes is pure garbage from people who want their winnings the easy way – by taking them away from the people.

Trump promised to put infrastructure in his budget. It’s hard to know whether he’ll keep that promise, whether enough Republicans will follow him, or whether it would include anything more than a wall on the border or brick and mortar repairs. Public investment could make infrastructure better and more resilient, as so dearly needed in Puerto Rico and on the coasts. Public investment could go well beyond controversial minimum wage laws by offering decent, useful, jobs at livable wages. Public programs could improve the private market by creating a model to compete with, like the public health care option that Obama tried to get.

Madison, Hamilton and their contemporaries had a much more patriotic and mature understanding of what American progress depended on – the people, the whole people, not just a few plunderers appropriating for themselves what should be our birthright.

— This commentary was broadcast on WAMC Northeast Report, Jan. 30, 2018.

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Proposed Amendments to Overcome Citizens United

July 19, 2016

This is the third in a series on Money in Politics. Last time we discussed the difficulty of getting the Court to overrule Citizens United. Because of that, several constitutional amendments have been proposed as joint resolutions and introduced in Congress in order to undo Citizens United and overrule the idea that a corporation is a legal person. After studying them, however, it became clear they have been so sloppily drafted that no one could tell you what they would do.

None that I’ve seen addresses the associations we join. Political, civil liberties, civil rights, and environmental organizations, and professional associations, all take stands on candidates or political issues. The ACLU went to court years ago to protect its ability to take out an ad over the impeachment of President Nixon.[1]

All except the smallest are incorporated and are protected by the right of association. The First Amendment protects speech, press, assembly and petition. In combination, that’s what our associations do to influence public attitudes about major issues. They incorporate to outlast their founders, use the courts, open bank accounts, organize membership and leadership, seek tax-exempt status and protect members from liability for any mistakes the organizations make.

Those associations matter. The lasting impact that people like Rosa Parks and Martin Luther King had on the Civil Rights Movement depended on the organizations that did the advance work, and drove home the meaning of what they and other great leaders of the Movement did. That’s true of most successful political movements. Yet the proposed Amendments stop after denying that corporations have constitutional rights and authorizing legislatures to regulate them.

A literalist could read the Amendments as superseding and repealing all previous protections for the organizations we rely on to reform politics, the environment, civil rights and just about everything we care about. Nothing in the proposals protects them.

Sometimes courts hang on to interpretations of older text and neuter newer language, as the Supreme Court has with language in the amendments passed in the aftermath of the Civil War. In the absence of any language about associations, it is impossible to say what the courts would do to the proposals regarding associations.

One proposal denies that it limits the people’s rights, but it is attached to text which limits what the Court defines as part of the people’s First Amendment rights. The meaning of that exception is mysterious, just authorizing courts to figure it out.

Only two amendments mention a free press. They merely say they “shall [not] be construed to alter the freedom of the press.” That’s nice but the exceptions swallow the proposals because much of political campaigns is in or can be done by the press. Whoever controls the distinction controls the result, whether authorities can squelch the press or the press becomes the next form of improper power.

Corporations often set up subsidiaries for otherwise regulated functions, such as associations or media companies, like what Murdock did with Fox. Some media companies are owned by conglomerates. Many associations set up separate organizations for tax purposes. The NAACP set up Thurgood Marshall’s organization around 1940 to separate its legal work from other organizational work. Lawyers fashion ways to live with rules. So what would a press exception do?

Nor should media companies and political associations have a monopoly on political speech. The law should be neutral and should not protect the speech of some while shackling the speech of others.

Whatever you think of the Roberts Court, and I’m no fan, these are serious issues and no proposal addresses them. Instead they provide feel good language covering sloppy and dangerous clauses.

— This commentary was broadcast on WAMC Northeast Report, July 19, 2016.

[1] Amer. Civil Liberties Union, Inc. v. Jennings, 366 F. Supp. 1041 (D.D.C. 1973).


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