During the widely-watched Supreme Court re-argument Wednesday morning of Citizens United v. Federal Election Coalition – a case that challenges the constitutionality of over a century of campaign finance laws restricting corporate spending during elections – the Justices’ assorted opinions toward corporations were on full display.  While some Justices, notably Ruth Bader Ginsburg and Stephen Breyer, expressed concern at the enormous influence of “mega-corporations” in politics, others on the bench seemed far more sympathetic to corporations’ motives.

This later position was particularly evident when, during an exchange with Solicitor General Elena Kagan (who argued on behalf of the FEC) over whether corporations should be permitted to influence policymaking, Justice Anthony Kennedy made the following comment:

Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election.  (52:7)

Later during the argument, Justice Kennedy questioned whether it is appropriate to restrict…

…the phenomenon of television ads, where we get information about scientific discovery and environment and transportation issues from corporations, who after all have patents because they know something. (73:5)

(Transcript here.)

Justice Kennedy’s comments warrant some analysis, especially given the implication they have for the climate debate.  (Most experts came away from Wednesday’s argument expecting Justice Kennedy to join his conservative colleagues in striking down campaign finance restrictions.)  Kennedy seems to be suggesting that corporations have a right (a constitutional right, no less) to share their abundant knowledge about the environment and scientific discovery during elections.  This assertion, however, appears to be based on two premises that, as anyone working to pass meaningful climate change legislation could tell you, are horribly flawed.  These are:

1. Corporations’ “goal” in spending money during elections is to share their knowledge
2. Corporations have no other way of sharing this knowledge, other than through spending money to influence elections

The first premise seems naïve.  As General Kagan herself noted during argument (countering an assertion by Chief Justice Roberts that corporations have “diverse interests” in elections), corporations have “a fiduciary obligation to their shareholders to increase value. That’s their single purpose, their goal.”  In other words, the reason a corporation tries to influence elections is to increase its profit not to educate the masses with its knowledge of scientific discoveries, as Justice Kennedy seems to suggest.

The second premise, moreover, is even more suspect. Taking Justice Kennedy’s example of environmental knowledge, for example, does anyone really believe that energy companies, such as Exxon Mobil, face any difficulty sharing their “knowledge” and opinions regarding environmental policy? Here are just a few of the many, many ways corporations like Exxon currently communicate their knowledge to us:

• Prolific, expensive, carefully-targeted advertising. This, of course, happens on a scale much greater than individuals, small non-profits, or campaigns can hope to match.  ExxonMobil, for instance, for years ran a quarter-page “Op-Ad” on the editorial pages of the The New York Times and has recently been putting an ad on the front page of the Times about auto emissions.
• Influencing judges. ExxonMobil, has funded fancy junkets to “educate” federal judges about climate change.  Interestingly, Justice Kennedy himself agreed in an opinion (Caperton v. Massey Coal) handed down last Term that the expenditures by the CEO of an energy company  to influence a West Virginia state judicial election resulted in a serious conflict of interest when that same company came before the elected judge as a litigant, thereby conceding that corporate campaign expenditures can create, or appear to create, an undue influence on the behavior of elected officials.
• Influencing “science.” Corporations, especially energy companies like Exxon, fund and influence climate “research” and “experts” so as to substantiate climate change denial.  Turning again to the Supreme Court’s own record on this, in Exxon v. Baker – the 2008 case dramatically reducing the amount of punitive damages the victims of the Exxon Valdez oil spill were entitled to – Justice Souter (finding in Exxon’s favor, no less) noted in a footnote that while the Court was aware of a “body of literature” supporting Exxon’s claims regarding the efficacy of punitive damages, “because this research is funded by in part by Exxon, we decline to rely on it.” (pp.27-28)

As I’m sure readers know, the list goes on.

In short, everyone knows that corporations already have a huge, and some would say detrimental, impact on environmental policy, due largely to the above activities and others.  Spending money to influence the outcome of elections is in fact the sole area where Congress and the courts have repeatedly determined it necessary to keep corporate influence out, and this is a restriction that ought to be kept in place.

Let’s hope in his deliberation of Citizens United, Justice Kennedy realizes that while corporations may “know something” about the environment, that is hardly justification for allowing them to spend unlimited amounts of money from their general treasuries to influence the outcome of elections. If he doesn’t realize this, I fear we could soon face the prospect of our next president being unduly beholden to ExxonMobil.