The Founding Fathers Didn't Plan for This

However, as America celebrates its 250th birthday, I can’t help but wonder what the Founding Fathers would think if they were alive today. Would they be proud of what America has become, or would they gasp in horror? While many might be quick to agree it's the latter, I don’t believe the answer is quite so simple.

No doubt, our Founding Fathers would be disappointed by many things. But I (perhaps optimistically) believe that they, like me, would marvel at the fact that the Constitution’s durable legal framework still guides us two-and-a-half centuries later.

The forces shaping policy may no longer be kings. Instead, private entities with seemingly infinite resources, influence the policymakers and agencies entrusted with our protection. Many (myself included) believe this dynamic is evident in the regulatory capture within agencies such as the EPA and FDA.

As an attorney, I consider the United States Constitution to be one of history’s greatest legal documents. Not only does it continue to answer difficult legal questions, but it contains mechanisms for its own evolution. Few governing documents have done more to restrain a government’s abuse of power.

Our Founding Fathers sought to uphold unalienable human rights by preventing the government from infringing on them. This means that like individuals, corporations are entitled to certain constitutional protections against governmental action. For instance, many believe the First Amendment’s guarantee of free speech offers blanket protection. In reality, the First Amendment generally prohibits governmental abridgment of protected speech; it does not ordinarily prevent private employers, businesses, or individuals from deciding what speech they will permit on their own property or platforms.

Ironically, these constitutional limits on governmental power have also enabled large corporations to accumulate extraordinary power and, in turn, exert enormous influence over lawmakers with virtual impunity. When a corporation’s overriding objective is to maximize shareholder returns, it has every incentive to leverage the political process. While these practices are generally lawful, they create a troubling symbiosis between prominent private interests and the public officials charged with regulating them.

Highlighting this arrangement is the Supreme Court’s recent decision in Monsanto v. Durnell. Although the decision appears legally correct, it serves as a haunting reminder that so many of our federal regulatory agencies—in this case, the EPA—remain captured, resulting in devastating harms to the American people.

The only difference is that, at one point in time, our government actually did something to limit them:

• In the late 19th and early 20th centuries, the rapid growth of massive industrial corporations led to increasing public concern that corporate money was corrupting the democratic process by purchasing political influence. In 1907, President Roosevelt signed into law the Tillman Act, which made it unlawful for any corporation or national bank to make a “money contribution in connection with any election to any political office.”

• Congress expanded these restrictions in 1947, when it banned labor unions from using their general treasury funds to influence federal elections. For decades, the Supreme Court viewed these restrictions as constitutionally sanctioned measures necessary to protect democratic integrity from aggregated wealth.

• In 1971, the Federal Election Campaign Act (FECA) established strict caps on campaign contributions and overall campaign spending.

We seemed to be going in the right direction until 1976, when in Buckley v. Valeo, the Supreme Court struck down limits on overall campaign expenditures, independent expenditures by groups, and spending from a candidate’s own personal wealth. The Court determined that restricting these expenditures is a violation of First Amendment free speech rights, noting that limiting how much an individual or group can spend on political campaigns places a direct restraint on political speech.

The balance dramatically shifted when, in 2008, Citizens United sought to air and advertise a film critical of then-presidential candidate Hillary Clinton right before the 2008 primaries. The Federal Election Commission (FEC) blocked it, citing the Bipartisan Campaign Reform Act (BCRA), which prohibited corporations and unions from funding “electioneering communications” right before an election. The case was ultimately brought before the Supreme Court in 2010.

In a landmark decision that effectively invalidated decades of restrictions on independent political expenditures by corporations and unions, the Supreme Court held that the government cannot restrict independent political spending on the basis of the speaker’s corporate identity as a for-profit or non-profit corporation. Because corporations are composed of individuals, the Supreme Court found that for-profit and non-profit corporations have the same right to engage in political speech as natural persons.

Citizens United did not legalize bribery or eliminate longstanding restrictions on direct contributions to candidates. It did significantly expand the constitutional protection afforded to corporate political advocacy.

Four years later, in McCutcheon v. FEC, the Court eliminated aggregate limits, meaning that individuals may contribute up to the base limits to an unlimited number of candidates and political committees, rather than being subject to an overall cap on total contributions per election cycle.

These decisions unequivocally marked a serious blow to the American people by forever cementing the devil’s handshake between corporate interests and our government.

The Court’s role is to interpret federal laws, not to engage in judicial activism when there is a morally enticing justification for it.

The Framers brilliantly protected us from concentrated governmental power. What they could not have foreseen was that private concentrations of economic power might one day rival the government itself. In many respects, these corporate interests have become unseen hands shaping public policy from behind the curtain.

I find it deeply frustrating that, for over a century, America recognized the dangers of corporate entanglement and implemented measures to prevent it, only for the Supreme Court to subsequently invalidate many of these safeguards.

Still, I refuse to shrug my shoulders and accept that corporate control of our government is now our inevitable reality.

When I was in college, I studied John Milton’s Paradise Lost. The epic poem opens with Lucifer’s fall and goes on to retell the biblical story of Adam and Eve. Once the brightest angel, Lucifer leads a rebellion against God and is consequently cast out of Heaven. Among the poem’s enduring themes is the idea that our understanding of good is defined by its contrast with evil.

In contemplating the corporate capture of our country, I found myself recollecting something one of my professors said: “We only understand what good is because evil exists.” Perhaps the nefarious forces working to harm us for profit act as a reminder that good exists in this world—all of the passionate and caring people tirelessly fighting to expose corruption at its deepest level, who serve as living proof of the thriving spirit of America.

I don’t expect to overthrow the seemingly omnipotent machine. I do know that our Founding Fathers drafted a legal document that grants us the right to use our voices to fight tyranny. We should never underestimate the collective power of millions of indignant Americans using those voices together.

Throughout history, malevolent forces have always attempted to usurp control for power or money. The truth typically comes out, though: Pharmaceutical manufacturers were ultimately held accountable for marketing the highly addictive OxyContin as non-addictive; much to the dismay of the tobacco industry, cigarettes were eventually linked to cancer; thimerosal was removed from childhood vaccines; and Anthony Fauci was…oh, wait.

I suspect our Founding Fathers would be disappointed by the influence that powerful interests now wield over our institutions. They would also recognize something familiar. Their generation confronted a form of tyranny they believed threatened liberty. Ours confronts a different one. The responsibility remains the same.

Milton reminds us that good and evil have always coexisted. Corruption is not proof that the American experiment has failed. Rather, it is proof that the work of preserving liberty is never finished.

Happy Birthday, America.