Application and Appraisal of Law,
Science and Policy to Civil Process in
Ordinary Legal Adjudication
By Winston P. Nagan
University of Florida
Levin College of Law
Introduction
The jurisprudence of McDougal and Lasswell develops a theory for inquiry about law.
The theory does not deal directly with civil procedure in any comprehensive or sustained way.
This is partly due to the fact that the theory is a theory about law and as a primary focus, under
perspective of a disengaged observer. The literature and experience of civil procedure is
decidedly a literature with a prime focus on a theory of procedure. Its focus therefore, is a
practitioners focus that is internal to the phenomenon, rather than one that is external with a
focus on observation. It should be kept in mind that an overwhelming volume of legal practice
is shaped by procedural expectations. Cases are won or lost by the skilled utilization of the
strategies of procedure in litigation. Notwithstanding the perspective of an observer may
disclose important insights into the nature of judicial decision-making and advocacy that may
sometimes not be as obvious to the perspectives of the internal practitioner. I am suggesting in
this paper that the observer’s perspective clarifies the theoretical foundations of civil procedure
and provides us with a better tool for understanding its larger social consequences and policy
implications.
Civil procedure and constitutionalism
We do not necessarily conflate civil procedure and constitutionalism, but an observer’s
perspective will quickly disclose that it is an important part of the constitutive process of the
community. In practice, certain procedural expectations are well recognized as expectations of
constitutional importance, but this does not provide us with a clear picture in a comprehensive
sense of the role and function of the civil procedural system. If we accept the principle that the
constitutive process is a process of communication and collaboration about the allocation of
fundamental competences concerning the allocation basic governmental decision-making, it
would be readily apparent that civil procedure expectations are expectations about the
allocation of basic decision-making competences in the context of ordinary civil litigation.
These competences are therefore competences about the allocation in part of both authority and
control. The element of control in civil procedure partakes of the institutionalization of a
community process of effective power. And this allocation implicates what the jurisprudence of
the policy sciences designates as the applicative function of legal decision-,making.
The applicative function deals with the allocation of competences in ways both complex
and confusing to the observer and others untrained in the law. In the United States, the “rules”
of civil procedure allocate competence to parties who present and prosecute claims before the
courts. The rules allocate exclusive, sequential, and concurrent competence to diverse courts
within and without the state. In addition, they allocate competence between judge and jury,
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trial judge and appellate judge, and the complex burdens of pleading and proof. Civil
procedure is, therefore, more accurately described as civil process and is an aspect of the
constitutive process because the “rules” allocate decision-making competence about basic
power arrangements. Although the allocations take place at a low visibility level, these
allocations of authoritative decisional competence reflect complex assumptions about the
appropriate exercise of control and authority that are fundamental. They provoke deeper
concerns about congruence with the broader goals of constitutive process, and the extent to
which principles of content and procedure might be used to design a better guidance
mechanism for civil procedure and its dimensions of control, to better approximate the goals of
the constitutive process itself, and the larger goals of the system of public order.
Grounding Value Judgment in Instances of Particular Application
Fundamentally, the entire complex of rules and practices about civil procedure are
concerned with grounding the litigants contentions about how contested values may be
specifically concretized and determined through the form of allocation via judicial decisionmaking. In general, specialists in procedure see the goals of the procedural system as effecting
the values that they be quick, cheap and fair. In practice, however, litigation in general does not
need these aspirations. In any event, they tend to obscure other important values that the
policy-oriented sense of contextuality may illuminate better. In short, there are broader goals
and vital policies often buried in the system. The following on civil process values is a tentative
indication of this limitation:
The Civil Process Values via Phase Analysis
1. Participation in decision-making

Wide representation

Responsible participation

Access to the courts and the complexity of legal claims

Client representation and relative autonomy of representation
2. Perspectives (preference for common interests rather than special interests)

Demands (values of human dignity maximizing in context, power, wealth,
affection, respect, rectitude, skill, well-being, enlightenment, and aesthetics)
 Claims for value must be expressed in legal technicality, yet be consistent
with the values that underline them

Identification (inclusive)
 No person should be precluded from access to justice on the basis of a
discriminatory aspect of personal
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
Expectations (maximize realistic orientation to context)
3. Arenas (policy on establishment to create and maintain authority structures appropriate
to all aspects of constitutive process)

Policy on access (openness and compulsoriness)

Policy on bases of power (maximize authority component of effective control: the
Rule of Law)

Particular problems are reflected in the geographical restrictions of jurisdiction,
as well as the universalization of legal responsibility

Inclusive interests in this regard should trump exclusive narrow interexts
4. Policy on Strategies

Initiation of process (prompt, non-provocative, fair)

Exploration of potential facts and policies (procedures that are dependable,
contextual, selective, creative)

Communication (responsiveness to actual shared subjectivities of participants)

Implementation (stress on effectiveness and, where possible, coerciveness)

One of the myths of procedure is that it is adjectival, that it essentially exists for
some other major purpose/interest. However civil procedure, although clothed
with a mantle of authority, is deeply enmeshed in the system of effective power
and coercion. This carries important normative consequences.
5. Outcomes

Aggregate consequences

Rationality

Efficiency

Inclusivity

Comprehensiveness and integration as necessary to achieve goals of the public
order

The outcomes of civil procedure shift and shape a communities process of
effective power
6. Goals and Decision Functions

Intelligence (dependable, comprehensive, selective, timely, creative, open)

Promotion (rationality, integrativeness, comprehensiveness, effectiveness)

Prescription (effectiveness, rationality, inclusiveness)

Invoking (timeliness, dependability, rationality, non-provocativeness,
effectiveness)

Application (rationality, realism, uniformity, effectiveness, constructiveness)

Termination (timeliness, comprehensiveness and dependability, balance,
ameliorativeness)

Appraisal (dependability, contextuality, independence, continuity)
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This framework makes more explicit the complex values that permeate the entire
process of civil procedure. Since procedure is largely charged with a grounding of value
judgments in instances of particular application, an important conceptual breakthrough was
developed in the New Haven School of Jurisprudence. This innovation was meant to be a
guideline to any procedural system charged with making decisions about the responsible
allocation of values. The approach recommended was both a clarification and an integration of
principles of content and procedure. These principles provide additional guidance to the phase
analysis and goal values of the procedural system listed above.
Principles of Content and Procedure to Facilitate Grounding Value Judgment
PRINCIPLES OF CONTENT
1. Principles relating to prescription or law-making are:

Ascertaining prescription;

Supplementing prescription; and

Interpreting expectations.
2. Principles relating to the process of claim, viewing “legal” problems thtough lens of
observer, relating problems to context.
3. Principles relating to entire decision process invent principles that enable all decision
functions to be tested for salience in shaping results or outcomes.
PRINCIPLES OF PROCEDURE
1. The Contextual Principle
2. Principle of Economy
3. Principle of Provisional Focus
4. The Principle of Clarified Focus
5. Principle of Observing Past Experience
6. Principle of Orientation to Conditions of Decision
7. Principle of Prediction of Probabilities
8. Principle of Appraisal and Invention of Options
A clarification of these major points is reflected in McDougal’s suggestion:
Experience suggests that this is necessary contextual examination of every particular
problem, though perhaps occasionally achievable by flashes of insight, may be best
facilitated and assured by the systematic employment of a comprehensive set of
principles of inquiry, both of content and procedure: principles of content for
spotlighting the relevant features of the particular interaction and its community
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context; principles of procedure for the rational and economic identification exploration,
and appraisal of possible solutions.1
McDougal also recognized that procedure implicates a substantial component of the
application function of decision-making and, therefore, policy scientists needed to provide more
explicit clarification of the role of the application decision function in this context. He
summarized these views as follows:
The responsible performance of the application function in such instances may require a
whole sequence of activities or choices, including the exploration of the potential facts
and their larger context; the exploration of the potential policies apparently relevant to
the provisional focus upon the facts; the characterization of the facts and determination
of their varying degrees of relevance; the selection from among the potential policies of
those to be applied and the detailed relations of these policies to the facts regarded as
relevant; and finally, the formulation and projection of the decision, with indication of
measures appropriate to securing conformity. For an applier genuinely dedicated to the
clarification and implementation of the common interest, the necessities of an informed
and rational, yet still personal, choice must stalk every act in this sequence.2
Trends in the Practice of Procedure and its Shortcomings
THE PLEADINGS
The history of civil procedure pleadings is instructive. The pleadings are historically
grounded in the issuance of a writ by the King that a legal action may proceed within the
parameters of the writ. This became known, in the practice of law, as a form of action. Over
time, elites were resistant to the King creating more writs and the law was confined to the forms
of action. If your pleading did not fit into a particular pigeon-hole or form of action, you were
out of luck. In a limited way, lawyers and judges tried to explain on the forms of action, by
analogy and other techniques of legal reasoning, however by the limiting role of the forms of
action many civil claims and claimants were excluded. In the early 19th century, New York
changed the system of pleadings, and instead of pleading a form of action, the pleader was
required to plead a cause of action. This was itself ambiguous and many courts thought that
cause of action was no different than form of action. Practice was erratic and in the 1930’s the
Supreme Court authorized the creation of the Federal Rules of Civil Procedure. The rules
required a short, plain statement of a claim, indicating that the pleader was entitled to relief. In
effect, the term claim was not tied, as a matter of necessity, to any pre-existing action recognized
1
MYRES S. MCDOUGAL, et al., HUMAN RIGHTS AND WORLD PUBLIC ORDER: THE BASIC POLICIES OF AN INTERNATIONAL LAW OF
HUMAN DIGNITY 415 (Yale Univ. Press 1980).
2
Id. at 416.
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at law. The pleadings system opened up access to justice to claims that could be factually
maintained, and for which a court of law was equipped to provide effective relief. Such a
system dependent on motion practice to test whether the claim could, in effect, be acted on at
law. Today, conservative judges have tried to restrict the scope of a claim, and if it appeared to
them to be too novel, the lawyer could personally be punished with substantial financial
penalties. This seems to represent a system unguided by normative goals and values.
JURISDICTION
The jurisdictional law in civil litigation begins with a 19th century case Pennoyer v. Neff3.
In this case, the question was whether the reach, jurisdictionally, of a state court could have
extraterritorial effect. The court, guided by the importance of geographic coercion in
jurisdictional cases held that a state court’s jurisdiction extending extraterritorially, violated the
due process clause. For the next century the court expended enormous intellectual energy
trying to avoid the consequences of this rigid rule. In effect, the rule seemed to sacrifice the
notion of authority at the altar of coercion. Over time, the court began to realize that
jurisdiction was largely a symbolic exercise, and ought to be constrained by principles of
fairness and substantial justice. The defendant’s connection with the jurisdiction required only
a minimum physical contacts. What was crucial was whether the assertion of jurisdiction was
consistent with fair play and substantial justice. There was an enormous expenditure of
intellectual effort, time, and judicial resources over multitudes of years, a process that continues
today. The question of due process to defendants is more complex in the context of debt
collection, which in general seems to amount to a system of grab law: he who grabs last, grabs
least. These laws historically include the writ of attachment, the writ of garnishment, the writ of
replevin, cognovits notes, and self help and self-serve provisions of sections 9503 and 9504 of
the Universal Commercial Code.
Some of these statutes and writs have been held to be unconstitutional, such as the law
permitting the garnishment of wages and some attachment statutes, such as replevin, have also
been struck dow. Others remain. The court accepted as valid a contractual provision
permitting a confession of judgment. A confession of judgment creates a fiction of judicial
supervision and control. Since the judgment is confessed, there is nothing left to argue before
the court. Since the merits have been decided by contract, there is nothing that requires
meaningful notice and the opportunity to be heard. To the court’s credit, it has been reluctant
to apply this law to people earning $10,000 or less. In the context of the Uniform Commercial
Code, the relevant sections provide that the creditor can attach the secured good by a process of
self help without a breach of the peace and permits for the sale of a secured good in “a
3
95 U.S. 714 (1878).
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commercially reasonable manner.” These standard form contracts completely abrogate any
idea of fair play and substantial justice. Creditor interests argue that self help is quick and
cheap, and reduces the cost of consumer credit. What this underlines, is on the one hand a vast
measure of intellectual and judicial capital on the reach of state court jurisdiction and a
minuscule concern for the due process rights of the creditor/consumer. In short, the exclusion
of law is a cost of cheap credit.
CLASS JUSTICE
The modern economic system requently represents the problem that large scale
corporate operations are willing to breach the law in cases that are relatively small to the
individual, but are of enormous importance to a class of individuals. How far can civil
procedure provide the remedy of class justice on a class scale? It was thought that rule 23(b)(3)
of the Federal Rules of Civil Procedure in the case Eisen v. Carlisle & Jacquelin4. In this case the
court was confronted with a colossal class action. A major New York Brokerage firm had
overcharged the transaction cost of odd lots sold on the New York Stock Exchange. The court
did not address the supplemental remedy developed by the lower court to give practical effect
to the rule. It focused on a secondary issue. The question it examined was whether all the
plaintiffs had been adequately notified, as is normally the case in litigation involving
individuals. Since the plaintiffs lawyers had not given all the potential plaintiffs threshold
notice, the court dismissed the case. The principle it was relying on was the quintessence of 19th
century jurisprudence and far removed from the context of the macrocosmic scope implicating
millions of possible plaintiffs who suffer wrong-doing at the hands of the leaders of capital and
industry. I asked Justice Rehnquist about this case after he had given a speech on the need for
less litigation and faster court procedures, precisely the objectives of 23(b)(3), his response to me
was, “you are referring to the Eisen case and you disagree with it? Well, a majority of the court
agrees with me.”
THE FINANCE OF ELECTORAL POLITICS
The recent jurisprudence of the Supreme Court of the United States has demonstrated
the complete inadequacy of the theory, the method, and the fundamental values implicated in
the procedure it has used on the important public policy question of the legislative control and
regulation of money in politics. The fundamental problem the court is confronted with is that it
has no procedure to give appropriate weight to the context out of which the money in politics
problem arises. Since it has no procedure to understand the context of the problem, it appears
to be completely blind to the social consequences and to political implications of the decisions it
has rendered and their impact on the public order.
4
417 U.S. 156 (1974).
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The central problem posed for the unlimited introduction of money into the political process is
its impace upon democratic elections. The legislative effort of limiting the flow of such funds is
for ensuring the integrity of the electoral process. The problem in an open society with a
significant private sector for the production of wealth and capital, is that the wealthy segment
which monopolizes and controls the wealth-generating process may use its wealth and capital
assets to support particular candidates in the political competition for electoral success. This led
the United States Congress, in a bipartisan initiative5, to begin the process of limiting campaign
contributions so that the political process is not swamped by the wealthy contributions of a few
members of the electorate, a process that may therefore diminish the competitive capacity and
weight of the average citizen voter in the political campaign arena. In the U.S. system, there are
limits to what an individual may contribute to a particular candidate.6 That same individual,
however, can also channel unlimited funds through a Super PAC that supports that same
candidate or party.7
In a recently decided case, 8 the Republican National Committee and a citizen of
Alabama, Shaun McCutcheon challenged a law that limited an individual’s aggregate campaign
contributions to $48,000. 9 McCutcheon was simply claiming that he could provide a donation of
$2,600 [the base limit] to as many candidates for election as he chose. In short, his money
provided him with a form of political influence and communication that could not be matched
by poorer sections of the community. The fundamental principal here is that the freedom of
speech and communication in the American Bill of Rights restricts campaign contribution
limits. Since we have a similar provision in our Bill of Rights and similar limitations on
campaign expenditures we are facing roughly the same question: whether Article XVI of our
Constitution should be given a similar interpretation as the First Amendment has been given in
the American Constitution. We may compare this to the South African Constitution’s Bill of
Rights, which is subject to Article XXXVI, stipulating10:
(1)
The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open
5
An Act to Amend the Federal Election Campaign Act of 1971 to Provide Bipartisan Campaign Reform, Public Law
107-155, U.S. Statutes at Large 116 (2002): 81-116, also known as the Bipartisan Campaign Reform Act or the
McCain-Feingold Act.
6
For a complete list of all current campaign contribution limits, see the Federal Election Commission’s website:
“Contribution Limits 2013-2014,” accessed July 21, 2014, http://www.fec.gov/pages/brochures/contriblimits.shtml
7
The notion of a Super PAC emerged after United States Court of Appeals for the District of Colombia Circuit
decided Speechnow.org, et al. v Federal Election Commission, U.S. 2 (2010). The Court ruled to invalidate the
$5,000 base limit previously imposed on individual contributions to independent political committees.
8
McCutcheon et al., v Federal Election Commission, 572 U.S. 1 (2013).
9
The law in question was a section of the Bipartisan Campaign Reform Act.
10
S.A. Constitution, art. 36, sec. 1 and 2.
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and democratic society based on human dignity, equality and freedom, taking into
account all relevant factors, including(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2)
Except as provided in subsection (1) or in any other provision of the Constitution,
no law may limit any right entrenched in the Bill of Rights.
I want to draw focus to two decided cases from the United States Supreme Court. The
first of these appeals focuses on the role of corporations engaging in the expenditure of
corporate funds in the electoral activity currently in the state.11 The second appeal deals with the
mechanisms by which legislation placing limits on aggregate political expenditures is
constitutionally challenged. The United States Supreme Court, in handling these issues of
corporate identity, expenditures, and aggregate limitations, has ruled that matters fall squarely
within the reach of the First Amendment to the United States Constitution.1213 In approaching
the process of adjudication here the Supreme Court of the United States has developed extraconstitutional tests [words not found in the Constitution] to guide its interpretation of the
proper constitutional reach of the First Amendment. Since the First Amendment represents a
fundamental constitutional right, the Court provides a level of strict scrutiny over the
legislation that seeks to control and regulate it. This places a burden on the legislative drafter to
show that any legislation impacting upon the freedom of speech represents a compelling state
interest. If the court finds that this interest is indeed compelling, the legislation is valid. If it
finds that the reason for the legislation does not represent a compelling governmental interest it
will be struck down.
The United States Supreme Court’s decision in Citizens United v. FEC overturned the
provision of the 2002 Bipartisan Campaign Reform Act prohibiting corporations from engaging
in “electioneering communication,”14 including the funding of political advertisements to be
aired in the 30 days before a federal election. The Court ruled that to restrict the political
spending of corporations based on their identity as juridical persons was in violation of their
11
On the theories of the nature of corporate personality see George Whitecross Paton, “Types of Incorporation: §
90 Theories of the Nature of Corporate Personality”, in A Textbook of Jurisprudence (London: Oxford University
Press, 1967) 365-376, discussing fiction theory, concession theory, bracket theory, and purpose theory.
12
McCutcheon v FEC, 3.
13
Citizens United v Federal Election Commission, 588 U.S. 1 (2010), 3.
14
Bipartisan Campaign Reform Act, § 203.
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First Amendment rights.15 In short, the Federal Government could not establish a compelling
governmental interest prohibiting corporations from dispersing funds in federal elections. It
would be useful to provide some further contextual background to the effects of this case on the
American electoral process. The net effect of this precedent was that nearly $1 billion in new
spending money emerged in the Federal elections.16 Super PACs became a routine part of the
vocabulary of National elections.17 Additionally, non-profit corporations could contribute to
campaigns through Super PACs without disclosing the source of the funds they were
contributing.18 For example, the American Crossroads PAC and Crossroads Grassroots Policy
Strategies Non-Profit’s created by political operative Carl Rove raised $123 million of which
62% was undisclosed.19 20 The Court’s ruling also influenced non-federal elections. “Laws
restricting spending by outside interest groups in elections were invalidated in 24 states,
extending the impact of the high court decision to races for governor, state supreme court and
beyond.”21
Contextualizing the problem by the identification of contributors and the amounts they
contribute would certainly be a useful way of determining the specific issue in the context of the
broader process of political contributions. The context connecting the evidence to super PACs
and their donors appears in the following table:22
Rank
Name
Total Given
Ideology
1
Sheldon Adelson & family
$93.3
Republican
million
2
Harold Simmons & wife, companies
$30.9
Republican
million
3
Bob Perry
$23.5
Republican
million
4
Fred Eychaner
$14.1
15
Democratic
Citizens United v FEC, 50. See footnote 19 for further discussion.
Reity O’Brien and Andrea Fuller, “Court opened door to $933 million in new election spending” in Consider the
Source, Part VI: Impact: What was the effect of all that money? (Center for Public Integrity, 2013): 166. PDF e-book.
17
See footnote 15.
18
Michael Beckel, “Nonprofits outspent super PACs in 2010, trend may continue” ibid., Part III: Nonprofits, the
stealth super PACs, 56.
19
These startling numbers certainly call into doubt Chief Judge Sentelle’s statement that “contributions to groups
that make only independent expenditures cannot corrupt or create the appearance of corruption.” Speechnow.org
v FEC, 14.
20
Michael Beckel, “Crossroads political machine funded mostly by secret donors” in Consider the Source, Part II:
Super PACs crash the parties, 13.
21
“Introduction” ibid., Part I: Big bucks flood 2012 election, 5.
22
ibid., 6-7.
16
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million
5
Joe Ricketts
$13.1
Republican
million
6
William S. Rose (Specialty Group)
$12.1
Republican
million
7
United Auto Workers
$11.8
Democratic
million
8 To
National Education Association
$10.8
Democratic
million
9
Michael Bloomberg
$10 million
Independent
10
Republican Governors Association
$9.8 million
Republican
11
James H. Simons
$9.6 million
Democratic
12
AFSCME
$8.2 million
Democratic
13
AFL-CIO
$7.4 million
Democratic
14
Robert B. Rowling
$6.1 million
Republican
15
American Federation of Teachers
$5.8 million
Democratic
16
Robert Mercer
$5.5 million
Republican
17
Steve and Amber Mostyn
$5.2 million
Democratic
18
George Soros* & family
$5.1 million
Democratic
19
William Koch
$4.8 million
Republican
20
Peter Thiel
$4.7 million
Republican
21
SEIU
$4.4 million
Democratic
21
Joe Craft
$4.4 million
Republican
23
John Childs
$4.2 million
Republican
23
Plumbers and Pipefitters Union
$4.2 million
Democratic
25
Jerry Perenchio
$4.1 million
Republican
When we look at these numbers, which are payments to influence the elections, it is
worthwhile to consider these financial facts in the context of the aggregate funds spent directly
to influence policymakers in Washington. This is of course to consider the financial foundations
of Washington’s lobby industry. Another critical element of the context is indicated in current
reports that the official total of funds expended on lobbying activity in Washington is $3.2
billion, however, investigative reporting indicates that the real figure is vastly in excess of this
and is estimated to be closer to $9 billion.23 The major lobbyists include Public Relations Firms,
23
Lee Fang, “The Shadow Lobbying Complex: On paper, influence peddling has declined. In reality, it has gone
underground,” The Nation, March 10/17, 2014, 13.
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Law Firms, In-House and Corporate Public Relations Departments, Trade Associations and
Policy Advocates representing interests such as the natural gas, petroleum, clean coal, food
marketing, aerospace, film, biotechnology, and healthcare industries, the financial sector, and
specific corporations and corporate interests, for example TransCanada’s Keystone XL Pipeline,
Apple, Science Applications International Corporation (SAIC), and Monsanto.24 The fact that
there is a $9 billion slush fund to fuel and disperse these funds in the Washington arena of
political action signals that as a Constitutional matter it is inappropriate to confuse the idea of
the unlimited diffusion of cash into the political process with politics as usual. I would submit
that it is critical that as a matter of constitutional adjudication a Court of Law bring a sense of
serious contextual realism to its process of authoritative and controlling decision-making. More
importantly, from a juridical point of view these vast infusions of private-sector wealth into the
political process suggest a reallocation of fundamental power in the body politic from
democracy to the financial elite.25
By broadening the contextual focus of the Court’s concern for the role that wealth plays
in the electoral and legislative process in the United States, the Supreme Court of the United
States has a focus on the interrelationship of wealth and power that is vastly astigmatic. A
central concern of the American legislature has been to protect the democratic foundations of
the American Republic from being swallowed up by the overwhelming infusion of money
meant to influence the political process and possibly dominate it.26 The interest of the American
Congress therefore has been to protect the democracy of the Republic. The Supreme Court’s
inversion of the compelling governmental interest in the protection of democracy from the
overreaching influence of a plutocratic impulse is a conclusion that is not necessarily warranted
by the text and the values behind the American Constitution.
The U.S. Supreme Court takes the view that money and speech are the same thing.27 This
is tortured logic. If such a position were taken as a Constitutional truism then those with fat
24
ibid., 12-13.
See infra footnote 38.
26
This concern has been the driving force behind a number of congressional acts in the last century. The Tillman
Act of 1907 (34 Stat. 864, now 18 U.S.C. § 610), the 1910 Federal Corrupt Practices Act (2 U.S.C. § 241), the Hatch
Act of 1939 (5 U.S.C. §§ 7324-7327), the Labor Management Relations Act of 1947 (Pub.L. 80-101, 61 Stat. 136),
the Federal Election Campaign Act of 1971 (Pub.L. 92-225, 86 Stat. 3), and the 1975 creation of the Federal Election
Commission, and the recent Bipartisan Campaign Reform Act were all enacted for the purpose of regulating the
influence of money on the federal government.
27
This precedent was set in 1976, when the Supreme Court ruled that “a restriction on the amount of money a
person or group can spend on political communication during a campaign necessarily reduces the quantity of
expression by restricting the number of issues discussed, the depth of their exploration, and the size of the
audience reached. This is because virtually every means of communicating ideas in today’s mass society requires
the expenditure of money.” Buckley v Valeo, 424 U.S. 1 (1976), 19.
25
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bank wallets can ensure themselves an even fatter level of participation and influence in
politics. Moreover, if this is entrenched the United States could well be on its way of evolving
from democracy to plutocracy.28 The approach of the Supreme Court of the United States is to
ascribe to this plutocratic trend a single narrow possibility of limitation. This legislation must be
tailored directly and specifically to the condition of political bribery.29 This assumes that the
giver is naïve about influence and can only expect something if he or she specifically requests a
special political favor or vote, in return for the money. No moneyed citizen, if he had the brains
to make that money, would make such an explicit request, one which would be criminal and
land him in jail. This is therefore a vastly unrealistic standard by which to measure the unstated
but undoubtedly clear expectations involved in the giving and receiving of vast sums of money.
It is notoriously obvious there will be some form of connectivity between the general
and specific interests of the donor and the dependency of the recipient or his agents and
affiliates. In politics, there is nothing for nothing. In short, as indicated earlier, the infusion of
extraordinary amounts of cash into the political process results in the disproportionate
influence of those that command the wealth. Consequently, we have an allocation of power
disproportionately skewed in favor of the wealthy elite at the expense of the people.
28
Recent evidence suggests that this process has already begun. In their soon to be published “Testing Theories of
American Politics,” researchers from Princeton and Northwestern analyze the statistical influence of various
groups (the average voter, economic elites, and corporate and mass-based interest groups) in American politics
and compared their findings to prevailing political theories (majoritarian electoral democracy, economic elite
domination, majoritarian pluralism and biased pluralism). Their conclusion, found on pages 28 and 29 of the final
pre-production draft, is perhaps less startling than it should be:
The estimated impact of average citizens’ preferences drops precipitously, to a non-significant,
near-zero level. Clearly the median citizen or “median voter” at the heart of theories of
Majoritarian Electoral Democracy does not do well when put up against economic elites and
organized interest groups. The chief predictions of pure theories of Majoritarian Electoral
Democracy can be decisively rejected. Not only do ordinary citizens not have uniquely
substantial power over policy decisions; they have little or no independent influence on policy
at all. By contrast, economic elites are estimated to have a quite substantial, highly significant,
independent impact on policy…Similarly, organized interest groups… are found to have
substantial independent influence on policy….These results suggest that reality is best captured
by mixed theories in which both individual economic elites and organized interest groups
(including corporations, largely owned and controlled by wealthy elites) play a substantial part
in affecting public policy, but the general public has little or no independent influence.
Martin Gilens and Benjamin I. Page, “Testing Theories of American Politics: Elites, Interest Groups, and Average
Citizens,” upcoming article in Perspectives on Politics (2014).
29
This view is summed up well by the statement made in the Opinion of the Court that “the fact that speakers may
have influence over or access to elected officials does not mean that these officials are corrupt.” Citizens United v
FEC, 43.
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In the McCutcheon case the Roberts Court’s apology for unlimited spending
contributions is that limits on spending “unnecessar[ily] abridg[e]” First Amendment rights.30
In short, the wealthy have a license to spend as much as they want in order to communicate
their political ideas, and interests. The First Amendment’s protection here serves to encourage
broader political participation. Any legislation that seeks to limit this cannot be seen to advance
a legitimate governmental objective. The only case in which there would be a legitimate
governmental objective would be to control corruption. But spending large amounts of money
does not necessarily imply corruption. The corruption the U.S. Court has in mind is quid pro quo
bribery. This is so narrow a definition as to be humorous when we consider that buying and
selling politicians for influence and access at least has the “appearance of corruption.”31 I see the
prohibition represented by aggregate limits to be a reasonable tool to prevent bribery and/or
corruption of the political process and to be a restriction on the gravitation of our democracy to
a plutocracy. What is missing from this analysis is that the United States is a democracy and
protecting the integrity of the democratic process from being purchased by the few at the
expense of the many is not only a misunderstanding of American democracy but clearly this
reasoning is completely inappropriate with regards to our conception of fundamental rights in
the political process.
Corporations as Political Persons
With regard to corporations being treated as flesh and blood citizens there is much here
that is problematic. A corporation is an artificial person. It is a juristic person. It has rights and it
has obligations in terms of its charter of incorporation. Human beings are not given rights by
some mythical charter of incorporation. Clearly, there’s a vast difference between the civil and
political rights of a flesh and blood person and the rights constructed for the limited purposes of
the juristic life of a corporation. We must consider the nature of these participants. What the
Court is not taking into account is the widespread discontent with corporate abuse; many
theorists in the United States consider that corporate reform is overdue32. Before we give
corporations the complete rights of flesh and blood citizens we had better take corporate reform
seriously. Summarizing five publicized notorious principles that are proposed for corporate
reform:33
30
McCutcheon v FEC, 30, quoting Buckley v Valeo, 25.
The Supreme Court’s opinion on the appearance of corruption is, inexplicably to many, the exact opposite: that
“independent expenditures, including those made by corporations, do not give rise to corruption or the
appearance of corruption.” McCutcheon v FEC, 5.; italics author’s own.
32
For more information see Winston P. Nagan and Marcio Santos “Globalism from an African Perspective: The
Training of Lawyers for a New and Challenging Reality” Transnational Law & Contemporary Problems 17 (2008),
445-446.
33
ibid., 446.
31
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1. Limit the power of top executives and financial decision-makers who may have the
power to use the corporation for inappropriate ends and for personal gain;
2. Allow institutional investors, such as pension fund managers, to nominate independent
directors to the boards of the corporations in which they are major investors;
3. Implement an aggressive program to make employees on all levels stakeholders in the
corporation itself, thus giving them an interest in the success of the corporation;
corporations may achieve this by awarding stock options to employees as bonuses or
rewards for excellent company performance;
4. Give blue and white collar employees a direct voice in corporate decision-making to
represent the perspectives of professional and nonprofessional employees in the
business to improve the objectivity and quality of corporate decision-making;
5. Reduce salary packages and stock options for top-level executives to avoid artificial
inflation of the company's share price; stock options may remain part of an executive
incentive package, but the corporation should limit their magnitude to protect and
enhance corporate interest.
When we examine the juristic identity of corporate entities, we should be cautious about
extending to them all the benefits of the Bill of Rights, which may be inappropriate to the
juristic purposes for which they were created. Moreover, the scope of corporate privilege and
license is itself, at least in the United States, a contested matter. It would have been more
appropriate for the American Court to have reviewed the concerns of responsible theorists
about the need for corporate reform before giving them a blank check to preempt the political
process. The Supreme Court appears unaware of these concerns and is prepared to underwrite
the complete freedom to flood the political arena with corporate funds to advance corporate
interests. At the very least, it is important for us to consider the criticisms that have been made
about the possible abuse of corporate personality and capacity. This is another reason that the
Court’s procedure needs to give serious consideration to the context and location of the role of
corporations in American political life.
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In 1907, The Wall Street Journal captured the essence of the Theodore Roosevelt era. “He
was fighting gross and corrupt extravagance, the misuse of swollen fortunes, the indifference to
law, the growth of graft, the abuses of corporate power.”34 Roosevelt’s concern for the capacity
of the wealthy to abuse their power for unsavory political ends is captured in this excerpt from
one of his letters:35
The policies for which I stand have come to stay. Not only will I not change them, but in
their essence they will not be changed by any man that comes after me, unless the
reactionaries should have their way… I am amused by the shortsighted folly of the very
wealthy men and … how large a proportion of them stand for what is fundamentally
corrupt and dishonest. Every year that I have lived has made me a firmer believer in the
plain people- in the men who gave Abraham Lincoln his strength- and has made me feel
the distrust of the over educated dilettante type and, above all of… the plutocratic type.
These recent Supreme Court decisions have major consequences for the survival of
American democratic political culture. They work on a theory and method of adjudication that
is self-consciously blind to the contextual location of the problems which it has to provide a
specific decisional response. If some of the guidelines developed in the jurisprudence of the
policy sciences had been only partially applied, they would have presented significant step
toward enlightened judicial decision-making implicating the fundamental values of democratic
culture and human dignity. It would be useful to refer back to the principles of content and
procedure, and the values implicit in both the application decision function , as well as the more
general values guiding the procedural system as facilitating an improved legal landscape for
the future.
34
35
Aida D. Donald, Lion in the White House: A Life of Theodore Roosevelt (New York: Basic Books, 2007), 221.
ibid.
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