The Situationist

The Separation of Business and State – Abstract

Posted by The Situationist Staff on April 17, 2008

by TW CollinsTimothy Kuhner recently posted his paprr, “The Separation of Business and State” (forthcoming in California Law Review). The abstract is as follows.

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National scandals involving corporate fraud, political corruption, lobbyists, and campaign finance have called attention to worrisome dynamics: the decreasing power of natural persons relative to legal persons in the political process; and the erosion of civic or democratic values in favor of corporate values. Both dynamics relate to the vexing problem of money in politics. American political thought and constitutional structure offer much-needed guidance in the form of analogies and separationist logic.

This Essay recasts the phenomenon of money in politics as a separation problem that is, a problem of the private sphere of business overreaching into the public sphere of governance; in short, excessive entanglement. Once the problem is seen in this light, it is natural to search for insights in the two most significant separations in U.S. law: the separation of powers and the separation of church and state. An analysis of these earlier separations reveals that the forces at work today arise from the same perennial forces contemplated by the Founders: unreformed human nature, dominated by unenlightened self-interest and ideological passion, and factions which emerge as a collective manifestation of interest and passion. Relevant political philosophy from the first two separations helps define the contours of a third, that between business and state. Taken as analogies, the earlier separations help explain what is happening to politics and suggest a solution.

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