July 3, 2014
On Monday the Supreme Court struck down a key part of the Affordable Care Act, ruling that privately-owned corporations don’t have to offer their employees contraceptive coverage that conflicts with the corporate owners’ religious beliefs.
The owners of Hobby Lobby, the plaintiffs in the case, were always free to practice their religion. The Court bestowed religious freedom on their corporation as well—a leap of logic as absurd as giving corporations freedom of speech. Corporations aren’t people.
The deeper problem is the Court’s obliviousness to the growing imbalance of economic power between corporations and real people. By giving companies the right not to offer employees contraceptive services otherwise mandated by law, the Court ignored the rights of employees to receive those services.
(Justice Alito’s suggestion that those services could be provided directly by the federal government is as politically likely as is a single-payer federal health-insurance plan—which presumably would be necessary to supply such contraceptives or any other Obamacare service corporations refuse to offer on religious grounds.)
The same imbalance of power rendered the Court’s decision in “Citizens United,” granting corporations freedom of speech, so perverse. In reality, corporate free speech drowns out the free speech of ordinary people who can’t flood the halls of Congress with campaign contributions.
Freedom is the one value conservatives place above all others, yet time and again their ideal of freedom ignores the growing imbalance of power in our society that’s eroding the freedoms of most people.
This isn’t new. In the early 1930s, the Court trumped New Deal legislation with “freedom of contract”—the presumed right of people to make whatever deals they want unencumbered by federal regulations. Eventually (perhaps influenced by FDR’s threat to expand the Court and pack it with his own appointees) the Court relented.
But the conservative mind has never incorporated economic power into its understanding of freedom. Conservatives still champion “free enterprise” and equate the so-called “free market” with liberty. To them, government “intrusions” on the market threaten freedom.
Yet the “free market” doesn’t exist in nature. There, only the fittest and strongest survive. The “free market” is the product of laws and rules continuously emanating from legislatures, executive departments, and courts. Government doesn’t “intrude” on the free market. It defines and organizes (and often reorganizes) it.
Here’s where the reality of power comes in. It’s one thing if these laws and rules are shaped democratically, reflecting the values and preferences of most people.
But anyone with half a brain can see the growing concentration of income and wealth at the top of America has concentrated political power there as well—generating laws and rules that tilt the playing field ever further in the direction of corporations and the wealthy.
Antitrust laws designed to constrain monopolies have been eviscerated. Competition among Internet service providers, for example, is rapidly disappearing—resulting in higher prices than in any other rich country. Companies are being allowed to prolong patents and trademarks, keeping drug prices higher here than in Canada or Europe.
Tax laws favor capital over labor, giving capital gains a lower rate than ordinary income. The rich get humongous mortgage interest deductions while renters get no deduction at all.
The value of real property (the major asset of the middle class) is taxed annually, but not the value of stocks and bonds (where the rich park most of their wealth).
Bankruptcy laws allow companies to smoothly reorganize, but not college graduates burdened by student loans.
The minimum wage is steadily losing value, while CEO pay is in the stratosphere. Under U.S. law, shareholders have only an “advisory” role in determining what CEOs rake in.
Public goods paid for with tax revenues (public schools, affordable public universities, parks, roads, bridges) are deteriorating, while private goods paid for individually (private schools and colleges, health clubs, security guards, gated community amenities) are burgeoning.
I could go on, but you get the point. The so-called “free market” is not expanding options and opportunities for most people. It’s extending them for the few who are wealthy enough to influence how the market is organized.
Most of us remain “free” in the limited sense of not being coerced into purchasing, say, the medications or Internet services that are unnecessarily expensive, or contraceptives they can no longer get under their employer’s insurance plan. We can just go without.
We’re likewise free not to be burdened with years of student debt payments; no one is required to attend college. And we’re free not to rent a place in a neighborhood with lousy schools and pot-holed roads; if we can’t afford better, we’re free to work harder so we can.
But this is a very parched view of freedom.
Conservatives who claim to be on the side of freedom while ignoring the growing imbalance of economic and political power in America are not in fact on the side of freedom. They are on the side of those with the power.