Amid the debate, no one noticed the argument not made. While many despairing citizens assumed their elected legislators were bought and paid for corporate instruments, no one said that the Supreme Court had been bought. No one called Chief Justice Roberts a tool or called Justice Scalia a business lackey. No one was accused of trading votes for campaign funds for the simple and obvious reason that Supreme Court justices do not have campaign treasuries available for filling. The justices in the majority may be wrongheaded, many thought, but they were not manipulated by corporate powers.
Or were they? Does absence of campaign funds automatically mean absence of corporate influence? Perhaps not. Young lawyers headed for the Supreme Court can work at corporate-funded think tanks on corporate-funded research, sit on corporate boards, attend junkets, give speeches, and network with people who believe in the superior wisdom of untrammeled markets and unregulated businesses.
This worldview of free market orthodoxy is adopted slowly, through intellectual osmosis. It’s not sinister, not dark, and not secret. It’s just a story of social networks. It’s something natural we all do.
Humans are social creatures and we live in webs. I know Jane, Jane knows Tom, and Tom needs a great intern for his company. Tom’s company is socially progressive. A certain type of person will fit well with Tom’s team. I’m progressive, too, so I suggest the right person, and they join the firm, both reflecting and absorbing the values of the group, like a human mirror. Thus, nascent political ideas are reinforced.
Lewis Powell knew this. Before President Nixon elevated him to the Supreme Court, Powell was a successful corporate lawyer. In 1971 Powell wrote a memo to the U.S. Chamber of Commerce warning that growing business regulation showed society was being inculcated with anti-corporate, anti-business ideas that had to be changed to save free enterprise.
To Powell’s mind, there was a problem of social networks. He wrote, “The most disquieting voices joining the chorus of criticism come from perfectly respectable elements of society: from the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences and from politicians.” Powell saw that when people crowded into pews and classrooms and turned on their televisions and otherwise participated in social events with asymmetrical dimensions of power and knowledge (the professor up there is smart, the preacher up there is learnedly moral) they were getting an anti-business message.
Powell’s solution rings down through the decades. He recommended an all-out corporate effort to reshape Americans’ views on the individual and freedom, targeting academia, the media, politics and the courts. Business took Powell’s advice. Larger volumes of corporate dollars began flowing to candidates, particularly conservative ones. From 1969 to 2009, a Republican was president 70 percent of the time. During those years, today’s Supreme Court was constructed bit by bit with young officers in the Reagan Revolution: Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito (two of this group, Scalia and Thomas, have spoken at Atlas Shrugged-like retreats run by energy billionaires turned libertarian financiers Charles and David Koch).
Although this history shows initial optimism about judicial independence was unwarranted, not all is lost for progressive reformers. Supreme Court justices, like all people, are products of their social webs, but are not machines. Their board memberships did not determine their principles. Indeed, justices are more independent than federal legislators. They have the ultimate campaign finance reform: no campaigns to finance.
Still, campaign finance reform may be paradoxically counterproductive since it lets certain government actors off the hook. Safely convinced that justices are Rhadamanthine sages, reformers neglect the question of how their values are formed. Other unelected apparatuses show far worse neglect. The Minerals Management Service, nominally charged with regulating outer continental shelf oil and gas extraction, was recently embarrassed by revelations that it allowed the petroleum industry to write its own regulations. Through repeated social interactions, regulators had begun calling the regulated companies “clients,” “customers” and “partners.” While reform efforts were directed at elected officials, industry-captured officials who never had to fund any campaign escaped scrutiny.
Ultimately, Citizens United exhibits its own paradox. The fact that the justices were not seen as corporate creatures — as legislators were — is the perfect case for why reform can restore faith in government. At the same time, by shifting attention from regulators and judges to legislators, the decision undermined the chances of ensuring these unelected offices are kept in the public trust.
With an acknowledgment of the power of social interactions in forming ideas and principles, reformers can begin building a new order, where a positive and pragmatic faith in government’s power for social good can become ascendant again. It’s time for citizens to unite. We have a social network to win.