I'm a big fan of Glenn Greenwald; just about every position he takes is anti-authoritarian, liberal in the best sense, and based on rule of law (which, in this age, is as close to fairness as one can expect). However, he wrote an article on the Chick-fil-a controversy that bugs me. On the narrow question of whether governments should be able to punish corporations for political advocacy, I agree with him that such punishment is unconstitutional. I take issue with his reasoning, though.
Greenwald invites us to consider a series of bills that enlist government in punishing corporations for views they express, money they donate to causes, etc. Some examples:
- Congress enacts a law that states: No business incorporated in America, whether for-profit or non-profit, shall be permitted to donate any of its money to groups espousing liberal ideas. Any business found to be in violation of this prohibition shall be guilty of a Class A felony. Corporate donations to groups espousing conservative causes shall still be permissible and legal.
- A city enacts an ordinance that states: Any business found to have donated money to any group that advocates same-sex marriage or abortion rights (including Human Rights Campaign and Planned Parenthood) shall be barred from doing business within the city limits. Businesses shall still be permitted to donate money to groups which advocate against same-sex marriage or against abortion rights.
I agree with him that the above laws are unconstitutional. Government is prohibited from discriminating or giving unequal protection to the free speech rights of corporations as currently settled law stands (that was indeed one of the caveats he made). Indeed, Greenwald took pains to point out that even in the Citizens United case, not one Supreme Court justice questioned the legitimacy of corporate personhood at all (I addressed Greenwald's commentary on this matter in more detail here). I also agree with him that The Nation's Lee Fang takes an unprincipled, politically expedient position against corporate personhood -- one cannot confine one's critiques of the doctrine to only those cases where it acts against one's sense of justice. Nobody wants to be allied with a hack like Fang less than I.
However, I do take issue with Greenwald's notion that protecting corporate rights are constitutive to unbiased government. The imaginary laws he suggests are careful to target particularly contentious political issues that divide our nation. I assume his goal here is to show how Fang's argument could be pressed into the service of a variety of illiberal ends. But why should we only consider narrowly moral issues in light of interventions by government? The examples ably illustrate the heaviness of the hand government uses to skew society to its political vision in general; no need to contain our outrage to only those narrow attempts at referreeing decorum and moral convention.
Indeed, the sole problem I have with Greenwald's thesis is that it doesn't go nearly far enough, constituting a blind spot for certain institutional arrangements he (and not simply the Supreme Court) considers beyond dispute. I would argue that the corporate form owes its very existence as a legitimate legal fiction to government intervention in the first place. Not only that, the intervention was designed to favor a certain view -- in fact a political, even moral, opinion -- of how business should be organized. This view is at least as arbitrary, moralistic and prejudicial as the imaginary laws he righly argues represent state overreach.
As far as I can tell (and I'd be happy to be corrected) Greenwald takes a thoroughly liberal view here that makes a distinction between rational, secular business matters and irrational, polemical moral and religious matters. I hold that this distinction is thoroughly false: government intervention to create and sustain corporate privilege is itself a moral intervention. For example, it has rigged our business environment to prefer capital over labor and business interests over civil interests. That is not just a technical legal matter for our society to work out rationally; rather, I'd argue it circumscribes a great deal of the inequality at the heart of our society's decay.
I'd like to follow Greenwald's lead by imagining the following laws:
- The government may allow people who pay a fee to be held as statutorily immune from personal liability for actions they take. There is no cap on the amount of profit they can make off of said actions, however.
- The government may allow people who pay a fee to do business through fake identities that allow a layer of indirection in the assignment of accountability and the investigation of the real interests behind their dealings.
- The government may allow people who pay a fee to make up their own accounting rules and have special laws about taxes, accounting, and other matters applied to them so that they are regarded on a completely different basis as other of their fellow citizens (or the competition).
In each of the above cases, I have not entirely made up the law as Greenwald did -- these statements more or less describe the current legal environment. Corporations are created by government when people file paperwork and pay a fee. In return, the government grants them ownership over an entity they may govern. This entity confers on them limited liability for their actions, entity status that people are compelled to respect, and the privilege to abide by different standards than those applied to us flesh-and-blood humans. This is just the beginning of the story of how government intervenes through the corporate form to skew society towards an arrangement with moral and ethical consequences. Among other results, this artificially instituted and imbalanced playing field directly contributes to:
- the concentration of wealth in corporate entities which then find their way into our political system,
- the asymmetry between capital and labor that has stripped most people of their bargaining power,
- the externalization of costs onto society at large, most notably through environmental degredation.
The idea that somehow the above situation is a technical, amoral, secular outcome that government is perfectly at liberty to pursue underlies Greenwald's entire argument. It's only when the issue at hand is abortion, or minority rights, or religion, or some other contentious topic on which the elite have not already reached consensus that government must look the other way.
The proper remedy to all of this (besides abolishing the state and privilege at large) is hold all people equal before the law -- whether or not they are principals, managers, or shareholders in some contractually created, legally fictitious business entity. This must entail the end of all government favoritism, including that powerful subsidy embodied in corporate privilege. Nobody should be allowed to manipulate society through government force, neither for moral ends nor business advantage.
But more subtly and importantly, the line liberals draw between secular business matters and religious or moral matters is itself an arbitrary, self-serving reordering of society to their liking that underlies their statist politics. Every group with an agenda thinks theirs is different, but the liberal desire for technocratic, rational secularism is just as much a pre-rational value imposed on society as Christian fundamentalist theocracy would be. We could strike a blow for true equality -- and accomplish a lot of "progressive" ends along the way -- not by encouraging more government picking of winners and losers but by stopping the intervention that has already been going on for a century and a half.
