We generally agree with Jack Balkin’s assessment re the causal relationship among the political economy, judicial cadres and resulting jurisprudence. He’s responding to Larry Lessig. As needed in today’s meme-soaked world, Balkin and Sandy Levinson have cloaked their argument with the moniker ‘Partisan Entrenchment’. It fits. What Balkin says is pretty unremarkable except we’re in such debased times an ADD afflicted demos must be reminded.
Law always has been the internal profession, especially common law jurisdictions such as the UK and U.S. The Continent still is largely a code based legal system derived from the common Roman inheritance. Under common law systems dependent on case law, the entire edifice of jurisprudence, stare decises and other meme barriers are designed to seal legal development from external interference (‘Originalists’ being the most famous (to some) fringe movement within the Academy and bench).
Political science always has been external. By that one means the analysis and perspective is macro. Theory and application are on institutions, people, and processes. Political scientists, of course, write about law, separation of powers and constitutional matters. Louis Fisher merely being among the most prominent. Political scientists (and pundits) generally don’t know how to read a case. Almost always they fail to understand the difference between the holding – or binding decision – and dicta surrounding it which is often colorful, immensely quotable but separate and non-binding. (Judicial activists like Scalia, however, are expert at inserting dicata for future mischief). A failing of the legal academy was its inability to handle and deal with the so-called ‘Crits’ (Critical Legal Theory’) back in the 1980s successfully, which began the commingling of external disciplines with legal theory and eventually jurisprudence. People in the Academy running around writing articles about Wittegenstein and the UCC or Kantian aspects of replevin eventually yield a bitter harvest. Except it is now Rightist instead of the ineffectual and droll neo-Marxist stuff back then. (Posner deserves a special place in Night Court hell for his Right Wing imprimatur on it all).
We say all this because ‘Partisan Entrenchment’ and even Lessig’s approach are heirs to the breakdown in barriers between the internal and external (Balkin and Levinson are actually acting more like political scientists here than lawyers). We’re still reading the decision carefully before we offer our legal opinion of Citizens United; in general, the claims of unjustified judicial activism and clear disregard for principles of jurisprudence are clear even on a first read. We’ll have more to say in the days ahead. We’re looking at congressional options in particular.
Staying on the commingled poli-legal plane of Balkin and Lessig we offer our personal experience. Regular readers know our cant. It’s bolierplate to them and we apologize. To the new visitors, we’ve represented most of the Fortune 500 in various guises in court, on the Hill, OSD, OMB, HLS, GSA, FCC, WH and elsewhere. We’ve lobbyied for companies that blow things up, build networks to help things blow up, sell consultants to the government for same, or make the stuff you see in Best Buy, etc. or use to call home. We’ve been in the thick of the 1996 Telecom Reform Act (kof). Over the years we’ve carried water for BOCs (Bell Operating Companies) and later dealt with the IXCs (the old interexchange carriers). Almost all at the VP level or higher. This activity over the years by necessity means the Stiftung raised and handed over beaucoup de dollars to campaigns on behalf of said entities. So we’ve seen the sausage making and purchase orders close up.
And it doesn’t quite work the way most think. First, candidates are the ones desperate for cash. Campaigns are unbelievably expensive, and not just media buys. With only a few exceptions we’ve yet to encounter a company eager to spend on political matters. In fact, in our experience almost every company we’ve represented *hates* being shaken down by congress critters for cash. One reason is that it’s never just once. It’s constant. Congresscritters rarely stay bought. And the only people who understand capitalism worse than the Soviets are Congresscritters and their staff. They assume companies are wealthy so too must be a government affairs budget. People would be astonished at how dumb Congress is about the private sector day in and day out.
Heavily regulated like the phone companies are historically most amenable to the game because they know an FCC decision (or even Notice of Inquiry) can massively impact shareholder value. Same with other heavily regulated industries. Their ‘customers’ are secondary. Defense companies focus on their DoD customer and paladins on the Hill but are strategic about their cash. Contrary to the Left’s [sic] fevered imagination, most defense and other similar companies have a pretty limited government affairs budget compared to the endless hands out. Instead they do the B1-jobs-in-every-district ploy. We know. We’ve been there when a world famous defense or other company would be put on the spot for yet another shakedown but it’s not in the budget.
Congress plays alot of tricks to manipulate companies. Most companies caught on to the game long ago and despise it. Know why the R&D Tax Credit wasn’t permanent? Right. Congresscritters use the regular renewal vote for a new shakedown. And so on across so many issues.
Companies with direct consumer relationships traditionally prefer indirection. This was true even during DeLay, when legislation was everything goes if you were on The List has paid ‘friends’. We frankly don’t see ‘corporate America’ writ large willing to in effect become visible contentious political actors under Citizens United easily. The entire essence of lobbying (good lobbying) is to get things done invisibly and with no fingerprints. Political activity not only invite board conflicts (which can be resolved with a re-shuffle) but even derivative law suits from shareholders about malfeasance and waste of corporate assets. The law suits even if eventually defeated would through discovery force all of the companies political activities to be entered into the public record.
The ‘Public Entrenchment’ theory suggests the corporate solution is to replace all these noisome congress critters with more compliant and less demanding minions. Or simply mount an oligarchical coup of their own and do away with indirect governance. Referring to broad sociological periods as ‘the Gilded Age’ as examples of essentially a bought and paid for Congress are inapt. One reason Citizens United may be less efficacious than the Right Wing hopes is that people are fleeing broadcast television, cable and papers. And demographics suggest this trend will accelerate quickly. They can buy ads but will who will be watching?
Certain industries threatened with Obama’s suddenly discovered zeal for ‘real reform’ will be among the first to tip a toe into advocacy waters. Banks, the retrograde energy industry, ‘healthcare’ [sic'] companies. They’re already spending now. Direct company advocacy at first will be tentative. Wall Street (the ‘financial services *industry* [sic]‘) in particular thrives on lobbying in the shadows when it can. The audacious first movers will be we suspect the plutocratic wealthy, especially outliers such as individuals who may own their own companies or be CEO founders. Several we’ve met at CPAC over the years are such loose cannons. They’re probably gearing up even now.
Congress traditionally has not wanted to allow multiple voices in their campaigns. In the 1920s, radio was the Internet of the time. Wide open. Anyone could broadcast. And they did against incumbents. Herbert Hoover as Secretary of Commerce deliberately let chaos ensue to build a case for regulations. Thus was born the Federal Radio Commission (FRC) in 1926 and then the FCC in 1933. With Sarnoff and the Fairness Doctrine Congress ensured that licenses would be held by the government and subject to renewal. A cozy monopoly was created which favored incumbents and the industrial elite.
Citizens United not only rolls back McCain-Feingold, Austin, etc. It also attacks congressional interest in limiting outside voices hijacking their campaigns. Roberts et al. give the oligarchy a ‘public option’ now for what they always had to pay for in private. Which brings us back to Balkin’s ‘Partisan Entrenchment’. There’s still a window for a few years. All the more reason to hope the netroots continue their campaign to find committed progressives. In the medium term we generally agree with Balkin’s assessment.
David Bose now at the Wingnut group Citizens United was previously distinguished merely as Dan Burton’s Renfield. The Supreme Court elevates all sorts to historical prominence. His fleeting fame here should also encourage. If he can serve as the vessel for a radical Court to scar democracy, so too can others with better intentions bring healing.