Whose Freedom Are We Celebrating?

A wise elder during this writer’s childhood was fond of the saying, “Your freedom ends where my nose begins.”  

Abraham Lincoln was well aware that certain freedoms for some cannot exist without taking them away from others. This concept was vividly illustrated when Lincoln said the following:

“The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as his liberator, while the wolf denounces him for the same act as the destroyer of liberty.” — Abraham Lincoln

Even though the Revolutionary War had raged since April 19, 1775, beginning with the Battles of Lexington and Concord, the Continental Congress did not agree to declare independence from Great Britain until July 2, 1776. The final wording of this resolution was approved by this same body two days later, on July 4th. Tomorrow will mark the 235th anniversary of that important milestone in this nation’s history.  

Although the intentions of our Founding Fathers represented a significant step forward, large segments of the population were excluded from participating in the freedoms that were sought, including non-landowners, women, African Americans and Native Americans.  Some of these Founding Fathers expressed the desire for these freedoms to be extended more broadly but majority opinion was not on their side.  

Those Founding Fathers who truly believed in the concept of liberty for all viewed the Constitution as a starting point, introducing checks and balances as well as sufficient flexibility for the nation to adapt to changing values, which they had hoped would result in an end to slavery and the advent of universal suffrage and equal rights for all individuals.

This concept was succinctly described by the late Molly Ivins:

It is possible to read the history of this country as one long struggle to extend the liberties established in our Constitution to everyone in America. — Molly Ivins

Some of us are familiar with demolition derbies, which are oftentimes featured events at small county fairs. Entrants use automobiles that are operable, but of little value, remove the windows and essentially play bumper cars (remember the ride at the carnival?) until only one vehicle can move under its own power.

When rights are granted exclusively to individuals, all else being equal, the playing field is relatively level. Under the demolition derby analogy, only vehicles of similar nature and specifications (i.e., individuals) would be allowed to participate.

The first threat to this balance began with the 1819 U. S. Supreme Court decision in the case of Trustees of Dartmouth, which gave rise to corporations in this country.  

The 1886 U. S. Supreme Court decision in the case of Santa Clara County v. Southern Pacific Railroad Company afforded corporations the same rights as individuals that were guaranteed by the 14th Amendment, establishing the concept of corporate personhood.  

Under a capitalistic system, all who wish to survive, which requires access to water, food and shelter, are forced to compete with others for these resources. To lose is to die.  

A single, slender reed can, by itself, inflict little damage. But aggregating two or three dozen reeds into a tight bundle transforms it into a potentially lethal weapon, illustrating the power of a group of individuals over that of a single person.  

A corporation which is a collection of individuals that is afforded equal footing with a solitary person.  While few would characterize a physical altercation between a single individual and a gang of hundreds as a fair fight, the Supreme Court would have us believe otherwise.  

Returning to the demolition derby scenario, individuals could enter their automobile, or if they were destitute, might have only a motorcycle, moped, bicycle, their own two feet or in a worst cases scenario, their wheelchair or nursing home bed. But now corporations are allowed to enter the same exact arena, represented by SUVs, Hummers, armored cars, semi-tractors, and/or Sherman tanks. Yes, all now have equal access to the same contest.

How did we reach this point?

Here are a few laws and Supreme Court decisions that resulted in our present state of affairs:

The Tillman Act of 1907 represented an encouraging direction, taking the form of legislation prohibiting monetary contributions to political campaigns by corporations.  

In 1976 the U. S. Supreme Court in Buckley v. Valeo established limits on campaign contributions, but ruled that spending money to influence elections is a form of constitutionally protected free speech. The decision also allowed candidates to donate unlimited amounts of personal fund to finance their own campaigns.  

In 1978 the U. S. Supreme Court, in First National Bank of Boston v. Bellotti, ruled that corporations had a First Amendment right to make contributions to non-candidate elections, such as ballot initiatives and referendums.  

A temporary reprieve of sorts took place in 1990, when the U. S. Supreme Court, in Austin v. Michigan Chamber of Commerce, upheld the Michigan law prohibiting corporations from using money from their corporate treasuries to support or oppose candidates in elections, noting that “corporate wealth can unfairly influence elections.”  The court decision noted that Michigan law still allowed corporations to make contributions from segregated funds.  So in practice this may have amounted to barricading the front door while leaving the back door wide open.

In 2002, the Bipartisan Campaign Reform Act of 2002 (commonly and erroneously referred to as McCain-Feingold) banned issue advocacy ads within 30 days of a primary election or caucus and within 60 days of a general election. It was immediately opposed by Kentucky Republican Mitch McConnell.

In 2003, the U. S. Supreme Court in the case of McConnell v. Federal Election Commission essentially upheld the constitutionality of most of the 2002 McCain-Feingold legislation (or more accurately, the Shays-Meehan, which was the name of the act that eventually passed the Senate).  

In 2007, the U. S. Supreme Court in the case of Federal Election Commission v. Wisconsin Right to Life, Inc., overturned the earlier 2003 decision in McConnell v. Federal Election Commission, now holding that issue ads could not be banned during the months preceding a primary or general election.  

In 2010, the U. S. Supreme Court in the case of Citizens United v. Federal Election Commission held that corporate funding of independent political broadcasts in candidate elections cannot be limited under the First Amendment. Many of the limitations imposed by earlier legislation and upheld by earlier U. S. Supreme Court decisions were reversed, most specifically the Austin v. Michigan Chamber of Commerce decision (1990) and partially overruled the McConnell v. Federal Election Commission decision (2003).

Since money is considered a form of free speech, and money can be used to buy influence and purchase advertising to influence elections, do those with the most money enjoy the most free speech?  To borrow from Orwell’s “Animal Farm”, perhaps the motto today has become — “All people are equal, but some people are more equal than others.”

We may recall that prior to the Civil War, as the result of a compromise, slave owners were allowed an additional 3/5 vote for each slave they owned.  Theoretically, someone who owned 100 slaves would be able to cast 61 votes (3/5 of 100 plus their own vote). It this what we’ve become?  Actually, this severely understates the disparity of power that exists today.

Maybe we will someday be allowed one vote for every million dollars of net worth, rounded down to the next lower million. We can all look forward to the day when our net worth reaches $1 million, when we will be able to cast one vote. Bill Gates, by contrast could cast between 40,000 and 50,000 votes. But then maybe in this post-Citizens United era we’ve already reached that point. If you can spend enough money to convince thousands of people to vote in the same manner as you, then the same purpose has been accomplished.

Returning to Lincoln’s quote at the beginning of this essay, we are probably all either sheep or wolves. Conceiving of people and corporations as two distinct entities, one would most resemble the sheep while the other would assume the role of the wolf.  Tomorrow we might do well to ask ourselves, as well as those who join in celebration with us, to consider which group they are a part of and if their lot is becoming more or less equal.

Remarkably, and regrettably, tens of millions of sheep in this nation enthusiastically cheer for their larger and more powerful companion, happily oblivious to the day when they will be devoured by that same wolf.