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On the most recent episode of Amicus, Dahlia Lithwick spoke with Stetson University law professor Ciara Torres-Spelliscy about Georgia’s voter suppression law, companies like Coca-Cola and Delta finally speaking out, and the massive influence corporations wield over politics today. A portion of their conversation, which has been edited and condensed for clarity, has been transcribed below.
Dahlia Lithwick: I think we could start with Georgia. You just wrote a pretty deep-dive historical piece examining the long, long, long history of voter suppression in Georgia, Jim Crow race-based vote suppression. It goes way back to the end of the Civil War before the 15th Amendment was even adopted. Can you just give us the low lights of what you were unearthing in that historical dive?
Ciara Torres-Spelliscy: One of the really strange artifacts I’ve found is what had happened in Georgia right after the Civil War. Georgia, even before the 15th Amendment was adopted, had Black elected officials in the state. So, they are elected in 1868, and almost immediately, the white members of the Legislature turn against these 33 elected Black men and kick them out of the Legislature. And one of the ways that they were able to kick them out was they said that they could not vote on their own expulsion. It took federal intervention to get those elected Black officials back in their seats.
I think that context is important here because I think it’s easy to think that the voter advocates today are overreacting or they’re being ridiculous. What does it matter whether it’s this many hours you can vote or that many hours you can vote? What a lot of people who know this history will say is we have seen people completely disenfranchised for decades in this very state. And so when we see you creeping up to that line and starting this process, we don’t want to relive that again. That is the spirit in which protesters have addressed these changes to George’s voting laws.
Let’s talk about how cynical you are about corporations, because I’m trying to ferret it out from what you’ve been writing. And I feel as though you and I are a little bit living on that same seam of being in some sense so happy that someone is drawing attention to what’s going on in this huge omnibus bill in Georgia, but also pretty darn cynical about Coca-Cola’s motives and Delta’s motives here. They turned on a dime, Delta and Coca-Cola. They initially didn’t seem to have much of a problem with these laws, and then 72 current and former Black executives from a whole bunch of corporations condemned the Georgia law, and boom, we’re hearing Coca-Cola and we’re hearing Delta saying, “This is appalling.”
When you think about corporate influence in politics, it’s very heterogeneous. You have everything from a mom-and-pop store to a multinational corporation, which is omnipresent and then somehow you can’t get them legally anywhere, which is one of the things that I’m keeping an eye on at the Supreme Court right now. There’s this case pending before the Supreme Court, which is called Nestlé v. Doe. In this case, Nestlé is arguing that they can’t be reached for human rights violations abroad precisely because they are a corporation. And I think they are about to win this argument at the Supreme Court, which is sort of horrifying. So you have that strain of law, which is excusing corporations from the responsibility that a normal human being would have if they had conducted themselves in the same way.
And then you also have the Citizens United line of the jurisprudence, which allows corporations this ability to spend an unlimited amount of money in our politics. In about half of the states, corporations can give directly to candidates for office. In Georgia, that is one of the states that allows corporations to give directly to candidates for state office, including their Legislature. At the federal level, what you get are corporate PACs, which are made up of individuals who are related to the corporation. Typically they are the officers and directors and employees of a particular corporation and those human individuals give money to the corporate PAC and then the corporate PAC spends in a federal election.
And then the third way that corporate money can get into our elections is, post–Citizens United, there was another case called SpeechNow, which was actually a circuit court decision. That is what created a super PAC. So with a super PAC, we have a PAC that is spending in federal elections, and under that ruling, they are allowed to gather in money from unlimited sources, including from your local billionaire, your local labor union, your local multinational corporation. And then they can spend an unlimited amount of money so long as they do it independently of candidates and political parties.
Corporations are heterogeneous in how they use these avenues. Some use just spending through a super PAC; others will do all three. It’s worth noting that the reason that Coca-Cola and Delta and other Georgia companies were targeted by voting rights activists wasn’t just that they were Georgia companies, which indeed they are. But the reason that they were targeted by voting rights activists was that these particular companies had helped fund the sitting governor of Georgia and had helped fund the very authors of this regressive voting rights legislation, which is now law. So they were focusing on these corporations because these corporations had a role in facilitating the election of these particular politicians.
And because you have direct spending from entities like Coca-Cola, that then opens them up to the criticism and the threat of boycotts when the individuals that they have supported financially in politics then do some horrific thing. So, whether it’s a bathroom bill or a voting rights restriction, that corporation is sort of permanently on the hook for the behavior of the people that they have supported financially.
Coca-Cola gave to Brian Kemp’s gubernatorial campaign, and they contributed to the Republican state Rep. Barry Fleming who authored the legislation, but Coke gave money to both sides in Georgia—in about equal amounts—so did Delta. And so there’s a way that they immunize themselves, right? They’re not actually giving money to Brian Kemp; it’s a wash. They’re giving to both sides. And I think your point is that you can give to both sides, but if one side does something truly horrifying, you have to be on the hook for that.
If we were playing roulette, it’s as if corporate spenders are betting on red and black at the same time, but in our political system, they’re betting on red and blue at the same time. And for me, that is worse. I’m not a fan of the role that corporations have in funding our politics. Now, I realize most of our political campaigns are privately financed, which means you have to get the money from somewhere. And this is one of the reasons why I support public financing. I think there should be an alternative to having our representatives in Congress dial for dollars 30 hours a week. That is the recommendation that both the DNC and the RNC tell our freshmen members of Congress: If you want to keep your seat, you have to get on the phone and beg for money 30 hours a week. It’s taken on a life of its own.
There was this great dissent in Buckley v. Valeo, the original case from the 1970s where the Supreme Court creates our current campaign finance law. Justice Byron White talks about the impact that the Supreme Court is going to have on federal campaigns going forward, and he said, “You are putting our candidates on a fundraising treadmill,” which is the perfect metaphor. It’s never-ending. You never win the race. It’s just continuous. And this is particularly true of the members of Congress who are in the House because they’re up for reelection every two years, and the average winning expenditure by a candidate is $2 million. So they are perpetually talking to the donor class and literally begging for money so that they can run their next campaign. I have to believe that there is a better way of doing this
Even when corporations get to look virtuous as they are now poised to do in Georgia, after a little while things shake down and revert to normal anyway. The example you write about is all the companies that were horrified after the Capitol riot on Jan. 6 and all the corporations that were like, “Oh no. We can’t fund anybody who is deliberately trying to nullify the election.” And the Chamber of Commerce is already saying, “OK, come on back. The dust has cleared.” They’re all going to pony up again. Even if you have a corporation that is trying to do something that looks as though it’s moral and ethical, at some point they need to pay to play and they’re back in the game, right?
One of the things that I’ve found dismaying in the ensuing few months here is that people seem to already be forgetting that deadly attack on the U.S. Capitol on the day that the Electoral College votes were to be certified. I feel like we haven’t grappled with that. And so I hope that we get a 9/11 style truth commission that looks into this and really examines it so that we don’t repeat this mistake. The other thing that I’m very worried about is this assumption that the rioters themselves will all face criminal consequences. I am worried that when we have these rioters in front of juries, you never know what a jury will do, especially if the excuse is, “I thought my president was telling me to do this.”
We really don’t know how this story is going to end. We don’t know if the people who did the rioting will get any legal consequences and how the public will perceive this in the long term. If we go back a couple of years, a lot of us had high hopes for what things like the Mueller report would mean to the public and to accountability and all of that. And it was a huge disappointment. There were very few consequences for things around the 2016 election.
So when you say, “How cynical are you about corporations?” Incredibly cynical. I’m at this point cynical about our entire enterprise here, because we’ve had these various tests of our legal system and our expectations and norms in our democracy and over the past four years, most of those, in my estimation, have been just utter failures. Like, you could have a sitting president take unconstitutional emoluments for all four years, and it goes from a case that a court in New York says isn’t ripe to at the end of the Trump presidency, the Supreme Court saying that it’s moot. That is crazy. There’s no accountability anywhere!