Nexus: Chapman's Journal of Law and Public Policy

The Citizens United decision tells us that corporate funding of independent political broadcasts in candidate elections cannot be limited under the First Amendment. Corporations, we are told, have free speech rights that need to be protected. Whether that concept ought to leave one head-scratching regarding non-human entities and their constitutional rights is something that I am poorly equipped to handle without heavy reliance on sarcasm and reference books, so I will stay out of that part of the argument. That said, it’s time to awaken Mothra because the beastly form of the unlimited corporate funding of electioneering communication has emerged from its underwater lair and the monstrosity is presently paddling toward the shores of Electionlandia. In its wake, one of the buzz phrases let loose upon the blogosphere is “Corporate Social Responsibility.”

There have been attempts to encourage voluntary social responsibility among corporations, like that made by Bill deBlasio (http://motherjones.com/politics/2010/09/bill-de-blasio-citizens-united-avenger ). DeBlasio’s strategy has been to approach major corporations, one by one, and ask them not to take advantage of the Citizens United decision. To deBlasio, a decision to opt-out of any Citizens United- enabled funding is an exercise in corporate social responsibility.

The essence of corporate social responsibility is self-regulation to promote public interests. There are some who would argue that concept of corporate social responsibility does not exist in reality and, some of those individuals do not mourn its non-existence because they believe the concept is at odds with the fundamental purpose and nature of business. However, one need not take a corporation’s word that it is acting in the public’s interest in order to enjoy some benefit from its actions under the guise of social responsibility.

In an era when corporations are widely viewed as having “values” apart from (though, obviously, not necessarily opposed to) those of its employees, customers, or stockholders (Starbucks, as a widely- visible example, touts itself as a responsible company that “believes” in wellness, community, and being good to the environment), there are manifest reasons that a corporation might choose to project corporate social responsibility. Corporate social responsibility has been posited as a draw for human resources purposes, especially regarding young, idealistic people (most emphatically grad students); corporate social responsibility has also been utilized for brand differentiation. Given these quite attractive motives for acting “socially responsible” it should not be surprising that, even in this post- Citizens United world, campaigns (like deBlasio’s) to discourage companies from throwing the full force of their finances behind political candidates have been met with some success. When the words, “special interest” are not spoken so much as spit-out in disgust, there is something to be said for a corporation that says, “unlike those other guys, we don’t fund political broadcasts.” That is the theory, at any rate. Some supporters of political funding reform have noted that, while the success of deBlasio’s project is a positive sign, it is merely a symbolic victory. I don’t believe that to be entirely the case, however.

We may find ourselves in a bad news/ good news situation at present. The bad news is that there is a very real possibility that corporations, in their exercise of corporate free speech, are going to wield incredible control over our destinies (political and likewise) because one, sadly, cannot expect every voter to undertake so tedious an exercise as fact-checking political broadcasts on his or her own. For every voter who already believes that during the thirty to sixty days before ballot day he or she will inevitably be lambasted by lies from every angle, there is bound to be at least one punch drunk voter who will follow the candidate that can land the most blows. Post- Citizens United, that candidate will very likely be the one with the most corporate funding behind him or her (famous billionaires excepted). The good news side of this situation is that people can control the government, and people can exercise some control over many different corporations. If enough people do not like what a candidate stands for, they may (and in all likelihood, some of them will) take action against the corporations that funded that candidate. Target and Best Buy, for example, will probably think longer and harder the next time they want to put funding behind a candidate whose views oppose those that the company purports to hold. Given the very public nature of that spectacle, it is likely that a few corporations that were not in any way involved learned something about the risks involved in rushing headlong through the Citizens United floodgates.

But if people wield so much power, why is Citizens United such a big deal? The answer is that voters who can be swayed by repetition of political advertisements, voters who will not be bothered to research the platforms and records of candidates, in short, voters who care just enough to vote but not enough to do anything else may not pose much of a threat of being consumers who will use their power and capital to discipline a corporation that has abused its Citizens United- enabled political funding power.

The problem of an uninformed (some might go so far as to say gullible) voting population is not a new one; this problem is not a creation of the Citizens United decision. The problem, however, has been exacerbated. Voters who would already have been persuaded by political broadcasting of dubious origin will just have more opportunity to fall prey. At the end of the day, however, the fix remains the same that it has always been: voter engagement. The voter’s responsibility is a heavy one. It is a responsibility that has been shirked, and half- abandoned frequently enough for unlimited corporate political funding to be a terrifying concept to many people. On an individual level, people have the ability to take the teeth out of the Citizens United’s decision, but will we?

“When he rises up, the mighty are terrified; they retreat before his thrashing.” The leviathan is not an inappropriate signifier for the Citizens United result, but the voting public needs to realize that we, not the corporate interests empowered by this decision are that beast. Job 41:25