A Conversation With John Ehrett (Part 1 of 2)

During a panel discussion about the strained and deteriorating relationship between conservatism and corporations at the National Conservatism conference last July in Washington, D.C., Capitol Hill staff attorney and writer John Ehrett spoke about “The Myth of Citizens United.”

“It’s a familiar myth, one we’ve all heard—the myth of the business corporation as autonomous, natural, organic—something set over against the oppressive power of the state,” according to Ehrett, in an essay adapted from his remarks published by The James Wilson Institute’s Anchoring Truths.

It’s the myth of the private sector versus the public sector. It’s the myth that the modern market economy is more basic, more primordial, than governance itself. On this view, government is the bad guy, a bull in a china shop. And it’s this myth that lies at the root of contemporary conservatism’s disordered relationship to corporate power.

(Emphases in original; endnote omitted.)

Given our interest in the relationship between private philanthropy and the state, Ehrett’s thinking and the ramifications of it in that context caught our attention. He was kind enough to join me for a recorded conversation earlier this month. The less than 11-minute video below is the first part of our discussion; the second is here. The views he expresses are his alone.

In the first part, we talk about the myth, its historically anachronistic basis, and its ramifications in the context of philanthropy and the nonprofit sector.

Separate spheres, or not

In its 2010 Citizens United v. Federal Election Commission decision, the U.S. Supreme Court basically “held that certain types of campaign contributions were protected by the First Amendment as essentially forms of expressive conduct,” as Ehrett accurately describes it. In his concurring opinion, Justice Antonin Scalia “really fleshed out the logic of this position.”

According to the concurrence, Ehrett says, we should

look at all of the kinds of things that civil society does. You have churches, you’ve got corporations, you have social-welfare organizations, you’ve got the Lions Club and the Rotary Club. You’ve got all these organizations to get together and make contributions and engage in commerce for various reasons. This is this kind of self-contained private sphere set over against the government. So if you regulate what these private companies and these private corporations, these entities, can do with their money and express themselves through their money, then you’re essentially infringing on their prerogatives to do this. …

However, he tells me,

this idea of two separate spheres, the private and the public, with the government being this big villainous presence over here that regulates everything and that imposes rules on what can and can’t be used in elections for various purposes, this is simply not historically how people have thought about corporations traditionally, ever.

In fact, “when Justice Scalia talks about this organic civil society of businesses and churches and people just doing stuff over here, with the government kind of being an overwhelming force from the outside, that’s simply anachronistic,” Ehrett says. “That’s never how corporations related to government or to society as a whole,” and “deconstructing that myth is an important part of what it means to take our tradition seriously as constitutional originalists, but also as conservatives who want an integrated account of how we live together for the common good.”

Natural or positive law

Specific legal categories, including those various ones of corporations and businesses along with those of what we now know as the nonprofit sector—Internal Revenue Code §§ 501(c)(3) and (4), private foundations, and all the other, related statutory provisions and implementing regulations—“enter into our law within historical time,” he notes. They “didn’t just drop from Heaven one day. This was created in our law for very particular reasons, which means it could be taken away.

“All of this is downstream of decisions that were made by political leaders within the democratic process within given time,” Ehrett continues. “There’s nothing intrinsically magical about the way our law has developed. This is not natural-law stuff. This is positive law and we can change positive law.

From the conservative point of view, moreover, “there’s ample reason to be concerned about the fact that a lot of progressive organizations have been incredibly well-funded for a long time,” he later observes. “To a certain extent, there’s that kind of détente issue, where we don’t want to tamper with something that is allowing our limited cash flows on the conservative-movement side to continue to flow, to potentially counterbalance” all of that which the larger liberal philanthropies are funding.

As conservatives, “We have baptized kind of an account of what philanthropy can and must be that leaves these bigger or structural questions unexamined.”

In the conversation’s second part, we discuss natural and constitutional rights in general; those conditions that can or could legally attach to governmental benefits, including tax-exemption, in particular; and first principles and the common good.

This article first appeared in the Giving Review on October 21, 2024.