TT's Lost in Tokyo — by TokyoTom

I won’t reprise the essay referred to in my preceding post, by which Lawrence Lessig presents his view of our current problems (much of which I agree with, including his conclusion that the “conservative” Roberts Supreme Court five-Justice bloc has acted with considerable activism in overturning centuries of law-making, in a manner that cannot be seen as consistent with any “originalist” interpretation of the Constitution, and that fruits and prospects of such activism are likely to frustrate further legislative attempts at fixes).

While I agree with Lessig’s call for a movement for the Several States to convene a Constitutional Convention, let me note that his analysis certainly has some serious short-comings and blind spots. In my view:

(1) Lessig completely
misses the real root of corruption, which is the grant by states to corporation owners of legal entity status in which owners had no liability for acts of the corporation (unless they specifically directed such acts), which grant was initially jealously guarded and carefully
restricted. The trickle from this hole in the dike became a flood,
as wealthy investors – eager to fund risky businesses that might give
them great profits while shifting risks to unconsenting third parties –
pressured state lawmakers for a snowballing liberalization – which saw the removal of limits on corporate purposes, corporate life, and corporate ability to own other corporations. As I have discussed repeatedly, the result of the multiplication of
activities, power and negative impacts of limited liability corporations (including their
successful pressuring of courts to eliminate common law tort doctrines that once strongly
protected the rights of property owners, in favor of a social utility balancing) has been a corresponding rise
in demands by citizens that law-makers act to constrain corporate activities, which in turn has produced a steadily escalation in the fight over the wheel of government.

(2) As a
result of this oversight, Lessig fails to consider (i) whether the
states can provide any check on corporate influence via their power to
condition the grant of incorporation/foreign corporation status (short
of a Constitutional Amendment eliminating corporate “personhood” for
civi rights purposes), instead suggesting that Congress might insist
that corporations engaged in interstate commerce be federally
incorporated and limited and (ii) whether states and federal
governments might regulate BETTER by easing the regulation of
partnerships, similar associations and corporation that have unlimited
liability, and whose owners have direct incentives to make sure
their executives do not engage the business in activities that generate
a significant risk of liaibilty to others

(3)
Lessig ignores that the reason corporations and labor pour money into buying
favor in Washington is because the federal government is too busy
selling favors, and such investments pay off – particularly where a
single party gains monopoly control over the pork spigots. Lessig seems blind to considerations of federalism and limited
government, in favor of the premise that anything the people in Congress assembled want to do is okay, as long wealthy corporations aren’t able to spend money on swaying the election of Congresscritters or buying votes, and if retired Congresscritters are not allowed to pasture too close to Congress..

(4)  As a result, Lessig
fails whether rent-seeking can be checked in part by restoring the once vital
check and balance provided by a vibrant role of states under the
originally envisioned federal system. For the purposes of restoring power to states, various conservatives have recently been suggesting (i) a reinvigoration of the moribund Tenth Amendment,
which states that non-delegated powers are reserved to the states and
the people (the Supreme Court assisted the federal government in
killing this part of the Bill of Rights via expansive interpretations
of the authority of Congress under the general welfare clause, the
Commerce Clause and the 14th Amendment) and (ii) repeal the requirement of direct elections of Senators under the 17th Amendment, which is argued to have better enabled election pandering and influence by corporations and by national parties.

(5) Finally, Lessig misses that the real reason why the conservative block on the
Roberts Court struck down limits on direct corporate spending on
political campaigns
(speech is wide open; direct donations to campaigns remain limited, but
will eventually fall on the corporations=persons doctrine) is that the Supreme Court had gradually allowed a two-part corporate speech structure to grow, with speech by “media” corporations being unlimited
(“freedom of the press” getting a separate mention in the First
Amendment), but political speech by other corporations being heavily
regulated by Congress.

This very imbalanced structure was long resented
by the right, due to the perception that the dull, corporate,
conglomerate”MSM” had been “captured” by ideological enemies on the
left. Resentments began to run the other way with the establishment of
FOX and various corporate-funded “thinktank” groups by the right (which seems heavily invested in the idea #CorpSpeak without, apparently, making any examination of the premises that inanimate legal fictions much different from other human associations have rights to speak and influence to government), but the Roberts court felt that the influence of the “liberal” corporate media was still too strong, and decided simply to do its best to bring down the entire edifice of “media speech” versus #CorpSpeak distinctions.
The Roberts Court appears to have been too timid or incurious to
address the fundamental problems relating to speech by inanimate
institutions with far greater power and far less community check than
individuals, and so blinked at that opportunity, instead opting for
the far lesser but still extremely activist step of taking a demolition
ball to legal restrictions on competition in the flow of ideas from corporations.

For the curious reader, I note again my preceding posts on  corporate “free speech”.

Those who want to get further stirred up might want to give another
listen to the new music video Anthem of what our Founding Fathers said
to King George:  It’s Too Late to Apologize.