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McGillLeftReview VOLUME 1

SPRING 2017

Chiara Andreotti Julian Binder Jason Li Janna Bryson Benjamin Aloi Aidan Gilchrist-Blackwood


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In this inaugural issue of McGill Left Review, the editors and authors respond to the current era of neoliberal- and alt-right-dominated politics with their defiant call to actualize radical potentialities. The collective rejects the neoliberal order’s attempt to professionalize university students as human capital for its assemblages of speculation, debt, dispossession, extraction, and war-machines. Instead, we find an uncompromising stance against an already morally bankrupt status quo that is now being pushed farther to the right, a new normal inaugurated by the spectacle of chauvinism indifferent to the historical realities of settler colonialism, empire, structural racism, misogyny, heteronormativity, transphobia, and slow violence. The articles address some of the current battlegrounds in our radical world-making projects, which, as Jack Halberstam has reminded us, would rather dwell in failure if success is defined as complicity. Specifically, the authors attend to the following questions: what indigenous land defense against mega-mining projects reveals about the possibility of a post-extractivist future; how we can conceptualize feminist utopia through the figures of the cyborg and the feminist killjoy; how we should conceptualize post-Apartheid governance; how we can understand abortion beyond human rights discourses and biopolitics; how we should measure queer progress; and how we should evaluate Citizens United. When confronted with an utter lack of conscience and conviction among the ruling elites, when empiricism is countered by alternative facts, the editors of the new journal emphasize the need for theoretical practice that produces critiques, knowledge, and worlds that cannot be collapsed into reactionary claims on futurity. Many of our most important theories have emerged in times of crisis, so if the 1930s often serves as a point of comparison for our current age, we should be glad to find ourselves in the company of intellectuals, including C.L.R. James, Grace Lee Boggs, W.E.B.


Dubois, Antonio Gramsci, Walter Benjamin, and the Frankfurt School. As a historian of modern China, the place which informs my thoughts on capitalist crisis and intellectual problematics, I am, of course, reminded of another anti-imperialist thinker that participated in the worldwide critique of liberalism and fascism during that decade: Mao Zedong. In his famous 1937 essay “On Practice,” Mao revisited the Marxist unity of theory and practice, stating, “Knowledge begins with practice, and theoretical knowledge is acquired through practice and must then return to practice.” The editors and authors perhaps embark on this new collective oeuvre with the same spirit, dating back to the Marx’s Theses on Feuerbach, engaging the work of scholars, such as Chandra Mohanty, Bahati Kuumba, Donna Haraway, Sara Ahmed, and Arturo Escobar, as well as different political, legal, and cultural contexts to produce critical knowledge that can, in turn, be reapplied to change the world. Jeremy Tai Assistant Professor Department of History and Classical Studies McGill University


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The backslide into oppression of our current era has taken on many forms. The “Dark Enlightenment”, “Trumpism,” the “alt-right”—regardless of the taxonomy used to conceptualize the increased influence of the populist right, it is evident that we are experiencing an age of reaction. What makes this seem particularly thorny for those on the left is that it is not a reaction to an era of hegemonic leftism (as some on the right have portrayed it), but instead a reaction to modest social gains made by oppressed groups. Ostensibly opposed to neoliberal globalization, this reaction nevertheless augments the oppression created by the pre-existing neoliberal consensus—making the prospect of substantive gains for workers, women, people of color, religious minorities and the LGBTQ* community increasingly precarious. It is in this context that many commentators have constructed the image of a pathetic, beleaguered left that has failed to capture popular imagination. The left, pundits argue, must compromise on the most incisive components of their platform and develop a pragmatic program to fight against the likes of Trump. The compromise being extolled here is submission to centrist neoliberalism, a policy position that will obviously be ineffective in tackling the status quo and “Trumpism” alike. We maintain that contesting the space currently occupied by the neoliberal centre and the alt-right requires a theoretical approach. A unified, effective response to the right-leaning reaction of our time will take the form of praxis flowing from sound theory—anything less will be a subversion of the values of the left that give it meaning in comparison to the violence of neoliberalism and the hatred of the alt-right. The “left” is obviously an inherently nebulous term, something which our journal recognizes in sharing perspectives from disparate fields and degrees of radicalism. Nevertheless, cohesion will be integral to the drive for change.


Luckily, the time is ripe. The days of the “end of history” were anathema to radical action—general contentedness makes it impossible to agitate for material change in the space of social interactions. This contentedness disguised the gradual encroachment of the Orwellian surveillance state and the rapid increase in inequality in the developed world, along with the continued exploitation of developing countries. Now that the neoliberal status quo is being challenged and cracks are appearing in its flawed model of expropriation and violence, we believe that the left can move to fill the power vacuum left behind. The racism and inequality inherent in Western society is finally being exposed for what it is - a fact simultaneously terrifying and motivating. Never before has it been so obvious that the status quo is unacceptable. On this note, we return to the importance of this newly-founded journal. By offering a clear alternative to the headwinds of right-wing populism and neoliberalism alike, the left can provide alternatives for those who see the need for radical change. No single person has the answer to the questions raised by the current crisis, which is precisely why this journal aims to encompass a broad array of leftist perspectives in seeking solutions. We hope to spark dialogue, share different points of view, and create an atmosphere of collaborative learning and cooperation. Never has our generation lived in a more pressing time. The recent shift of the Doomsday Clock shows that we may have to take action far earlier than we thought—or would have liked—but one cannot dictate the conditions that history bequeaths. We need to accept the responsibility that comes with being here, now, and work to ensure that the ultimate legacy of this “age of reaction” is a positive one: a precipitant that elucidates the urgent need for a radical transformation of our social relations. Sam Hull & Ryan Shah Editors-in-Chief


McGillLeftReview All material Š 2017 on behalf of the authors by the McGill Left Review Published with generous support of the Arts Undergraduate Society of McGill, Publications Fund

Editors-in-Chief Sam Hull Ryan Shah

Managing Editor Tristan Hughes

Web Editors Alex Gold-Apel Kia Kouyoumjian

Design Editor Bronte Morris-Poolman mcgill.leftreview@gmail.com mcgillleftreview.com @TheLeftReview mcgillleftreview

Copy Editors Janna Bryson Audrey Carleton Marina Cupido Jason Li Thomas MacDonald


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The Feminist Consciousness: Cyborgs and Killjoys by Chiara Andreotti

Pink Embers to Pink Ashes: Revolution as the End of the Homosexual Tradition in China by Julian Binder

Citizens United and Pseudo-Associational Corporate Speech: A Nuanced Approach to Understanding Campaign Finance Jurisprudence by Jason Li

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Ideology or Instrument? The Role of Abortion in the Development and Enforcement of China’s One-Child Policy

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The Anc, Public Service Delivery and the Future of Governmental Accountability in South Africa’s Increasingly Competitive Democracy

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by Janna Bryson

by Benjamin Aloi

Extractivist Ecologies and Relational Ontologies: Indigenous Land Defence, Mining Conflicts in Latin America, and the Potential for Global Socioecological Change by Aidan Gilchrist-Blackwood


The Feminist Consciousness: Cyborgs and Killjoys by Chiara Andreotti

About the Author

Chiara Andreotti transferred to McGill in 2013 after having studied for two years in a small liberal arts college in the US. Born in Paris from a French mother and an Italian father, she moved to the US when she was 15. She is currently pursuing a joint honors degree in Political Science and History as well as a minor in Philosophy at McGill. Her interests range from cultural studies and the concepts of identity and historical consciousness to aesthetics and the politics of the City in twentieth century Europe.

Abstract

This paper is an examination of two important texts in feminist theory: Sara Ahmed’s The Promise of Happiness and Donna Haraway’s “A Cyborg Manifesto: Science, Technology, and Socialist-Feminism in the Late Twentieth Century” in Simians, Cyborgs, and Women. In this paper, I explore how their respective theoretical approaches, Affect theory and New Materialism, intersect on the paradoxes of constructing a feminist consciousness. I suggest that Haraway and Ahmed converge on a fundamental point: both highlight the destructive consequences of crafting a woman’s identity and the inherent unhappiness that goes with it. Ahmed’s “feminist killjoy” and Haraway’s ‘cyborg” are responses to their respective criticisms of happiness and the requirement of the wholeness of identity. I seek, in this paper, to highlight their compatibility and argue that bringing them together is a constructive step in elaborating a pathway to the survival of feminist utopia.

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This paper is an exploration of the paradoxes raised by one of the most crucial questions feminism faces today: the necessity for, and the impossibility of, a feminist consciousness. I approach this through the lens of two feminist philosophers who have tackled and criticized this issue from two different sides: Donna Haraway, in her critique of identity politics in the Cyborg Manifesto and Sara Ahmed’s questioning of the imperative contained in the title of her book, The Promise of Happiness. Haraway and Ahmed operate in two distinct spheres, the former belonging to the movement of New Materialism, the latter working within the specific standpoint of Affect Theory. My aim in this paper is to show how Haraway and Ahmed converge in their exploration of the paradoxes of feminist consciousness— emphasizing, in different ways, the destructive consequences of crafting a woman’s identity and the inherent unhappiness that goes with it. I also examine how their respective critiques of happiness and the requirement of the wholeness that goes with the search for identity can be brought together in a productive and enlightening way to offer solutions and a pathway to the survival and renewal of a feminist utopia. Both Ahmed and Haraway explicitly address the concept of the feminist consciousness. I will begin by defining this concept, grounding my explanation on Haraway’s discussion of “fractured identities” and the limits of identification in the Marxist feminist project.1 I will then apply to this framework Ahmed’s own discussion of the threatened position of feminist consciousness as vector of unhappiness in a world structured around opposite principles, which she terms the “economy of happiness.”2 Both Ahmed and Haraway use complex productive stock figures to make their arguments. Ahmed pits the “feminist killjoy” against the “happy housewife” and Haraway demonstrates the superiority of the “cyborg” over the “goddess.” I would like to conclude my paper by examining how Ahmed’s “feminist killjoy” might be conceptualized 1. Donna Haraway, “A Cyborg Manifesto: Science, Technology, and Socialist Feminism in the Late Twentieth Century,” in Simians, Cyborg, and Women, (New York: Routledge, 1991), 155. 2. Sara Ahmed, The Promise of Happiness (Durham and London: Duke University Press, 2010), 62.

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as a cyborg. By drawing such a parallelism between Ahmed and Haraway’s controversial images, I show that despite their distinct approaches and seemingly opposing arguments, Ahmed’s conclusion is compatible, or at least not incompatible, with Haraway’s cyborg utopia inasmuch as the function of unhappiness in the feminist project contributes to—if it does not actually resemble—Haraway’s rejection of the “unifying totalizing whole,” as well as her embrace of monstrous “regeneration” over “rebirth without flaws.”3 The concept of a feminist consciousness was developed as a political and ideological tool to highlight the dynamics of power and dominance on the oppressed in order to bring about change. The question of a feminist consciousness is also inherently linked to issues of identity and collective sensibility, and the development of a utopian feminist project. The Western paradigm of revolution and the struggle against oppression is deeply anchored in Marxist and socialist epistemologies that emphasize confrontation and group consciousness⎯for Marx, class consciousness⎯against the dynamics of oppression, such as the division of labor. Transposing this model to feminist theory raises a number of issues, however. If the formation of a group under a common identity or experience is necessary to the transformative or revolutionary process, the construction of a “we” as women appears to be a more delicate and treacherous process than the construction of a ‘we’ as proletariat. In the Cyborg Manifesto, Haraway unpacks the complexities and dangers of proclaiming such an “essential unity.”4 She argues convincingly that identities are blurry, imperfect, paradoxical, and contingent. Defining an identity based on sex or gender runs the risk of perpetuating complex and deeply embedded structures of dominance. As Haraway astutely notes, one of the main problems created by a Marxist paradigm that emphasizes “the daily responsibility of real women to build unities,” is that “there is nothing about being ‘female’ that naturally binds women. There is not even such a state as ‘being’ female, itself a highly complex category constructed in contested sexual scientific discourses and other social practices.”5 3. Haraway, 160, 181, 177. 4. Ibid., 155. 5. Ibid., 58.

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Women’s “identity” and gender consciousness, if even it exists, is a sticky substance, permeating many levels of being, habits, and thoughts; it is hard to detach it from the self; its beginning and end may appear unclear and circumstantial; and much of it can remain buried in the unconscious. Furthermore, as Haraway notes, the consciousness of gender and identity “is an achievement forced on us by terrible historical experience.”6 The very thing that defines “us” as women and warrants affiliation to the feminist movement is what feminism strives to reject by separating sex and gender and by negating a natural foundation for the inequality of women. What constitutes women’s identity and experience, what makes up the feminist consciousness is “men’s constitution and appropriation of women sexually.”7 As alienated non-subjects, women only exist as the “products of men’s desire.” 8 In this sense, the identity of women is precisely what a feminist consciousness should repudiate as harmful and illusory. As Haraway puts it ironically, the “feminist practice is the construction of this form of consciousness; that is, the self-knowledge of a self-who-is-not.”9 The search for essential totalizing identities is linked to what Haraway claims is a resilient Western aspiration for a “unified or totalizable whole,” the rejection of “partial explanation,” which is reflected in the legitimate feminist anxiety with creating allencompassing boundaries that leave no one out.10 The feminist dream around which consciousness is constructed, Haraway argues, is a “dream for a perfectly true language, of perfectly faithful naming of experience” that is ultimately “totalizing and imperialist.”11 Indeed, given that the concept of woman is “elusive,” the very search for a common, genuine, and whole identity is probably doomed. Current categories of gender, according to Haraway, can only be partial since their aspiration to individual oneness or wholeness necessarily generates dualisms where the one necessarily creates 6. Ibid. 7. Ibid., 159. 8. Ibid. 9. Ibid., 159. 10. Ibid., 160. 11. Ibid., 173.

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an opposed or marginal other. Inherent within the very formation of identity, according to Haraway, is the reification of an imperial experience in which a positive center is constructed with respect to which any deviation recreates the dynamics of oppression. Hence the various definitions to which individual units strive to conform under penalty of exclusion, and what Haraway calls the “taxonomies of feminism [that] produce epistemologies to police deviation from official women’s experience,” recreating the “matrix of women’s dominations of each other”—as when women of color, for example, or working class women are pushed to the margins as a deviant form of a white and privileged definition of feminism.12 The construction of a feminist consciousness within the framework of identity politics and based on the necessity of a totalizing identity is a thus a questionable proposition that may ultimately do more harm than good. In a different but not entirely unrelated way, Ahmed also addresses the dilemma of feminist consciousness. Unlike Haraway, for whom the problem of feminist consciousness lies in its foundation in identity politics, Ahmed regards the feminist project as threatened mainly by a society based on an “economy of happiness,” where happiness is understood as both a means and an end, and as an injunction to follow the “right” social norms. Ahmed explains how our contemporary society is governed by a “new science of happiness” that makes happiness an indicator of growth and advancement, with the economic and political goal of a maximization of individual happiness.13Ahmed points out how this utilitarian model is premised on the certainty that feelings are “transparent, as well as the foundation for moral life. If something is good, we feel good. If something is bad, we feel bad.”14 The distinction between good and bad feelings is thus “secure,” and so is its correspondence to good and bad moral principles. Happiness—in this view—provides unambiguous social ideals. The demand for happiness is a demand to follow those social ideals, and “what explains the crisis of happiness 12. Ibid., 156. 13. Ahmed, The Promise of Happiness, 5. 14. Ibid., 6.

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is not the failure of these ideals but our failure to follow them,” including our failure to follow the “right path” that is itself also a function of happiness.15 The latter, in fact, is nothing other than the pursuit of a certain identity, a normative structure measuring the “quality of a person.”16 The ability to follow this path and achieve happiness is premised upon the possession of specific traits such as optimism or altruism. Ultimately however, happy people, Ahmed argues, have the distinctive profile of privilege—privilege deriving, if nothing else, from their ability to fulfill social norms and ideals. The situation is patently circular because happiness is defined as a means as well as an end. Happiness correlates with moral good and dictates social norms and ideals and the fulfilling of such norms simultaneously creates happiness. Not surprisingly and perhaps inevitably, this self-fulfilling quality of happiness alienates those who cannot fulfill the norms, who absurdly blame their unhappiness not on the norms to which they aspire, but on personal failure. As Ahmed shows, happiness is closely associated with profiles of individual persons and the imperialist formation of ideal identities and pathways from these identities to happiness. Ahmed uses the image of “‘happiness scripts’ providing a set of instructions” to specific identities—in our case, women—for what they “must do in order to be happy, whereby happiness is what follows being natural or good.”17 It follows that unhappiness constitutes deviance from these scripts and is put down as an individual failure of character. It is also criticized, Ahmed adds significantly, as “making trouble” and impeding the happiness of others, which in a way depends on the latter’s consensus for its own legitimacy.18 In “Consciousness and Unhappiness,” Ahmed argues forcefully that feminist consciousness is in fact a form of unhappiness that threatens the hegemony of happiness as a norm and an end.19 This consciousness, for Ahmed, is threatened by what she calls “the science 15. Ibid., 7, 9. 16. Ibid. 17. Ibid., 59. 18. Ibid. 19. Ibid., 53.

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of happiness.” Delegitimized by this idea of the always good and “right,” feminism as individual unhappiness is increasingly forced into a form of “investment in ‘being desperate.’”20 Feminists become troublemakers first because they refuse or are unable to manifest happiness “in proximity to the right things” and thus question the rightness of the things and with them the necessary correlation between happiness and the moral good.21 Ahmed illustrates this situation through the figure of the “feminist killjoy” as opposed to the “happy housewife.” She stipulates that the happy housewife is happy because of the pleasure she gets in conforming to established social norms. What Ahmed argues, however, by endorsing the feminist killjoy over the happy housewife, and thus unhappiness over happiness, is that unhappiness has a potent subversive and decentralizing power. The feminist consciousness’s association to unhappiness, Ahmed explains, is a problem insofar as happiness is understood as inherently good. The feminist killjoy, in her quest to raise political consciousness, however, emphasizes the potential of unhappiness and suffering to expand the narrow horizon of the good outside of and beyond the limited horizon of conventional happiness. The feminist killjoy operates in a marginal space from which greater possibilities can emerge. This is where Ahmed and Haraway can come together and where the feminist killjoy begins to look like a cyborg. After all, as Tolstoy said, there is only one way to be happy, but there are millions of ways to be unhappy. Haraway creates the cyborg as a utopian feminist solution to the problem she raises about the impossibility of a feminist consciousness based on identity politics and the will to create a perfect whole. Haraway’s feminist consciousness is embodied in the cyborg as a post-identity creature that rejoices in the blurring of boundaries and the assemblage of incompatible things. The cyborg is our savior from the self-destructive “apocalyptic” feminist consciousness of totalizing unifying identities, because it does not seek wholeness and perfection but provides us with an alternative way to conceptualize our bodies in the material world outside of 20. Ibid., 52. 21. Ibid., 59.

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alienating identities.22 The cyborg is a “monster” in a literal sense because it is made of partial elements. It delivers us from the quest for organic wholeness and innocence, the fear of the monster, and the never-ending struggle against the other.23 It teaches us to revel in contradictions and partialities and accept the other as part of the self and the monster as self. Ahmed’s feminist killjoy could be recast as a type of cyborg. If, for Haraway, our enemy is the desire for oneness and organic whole and our fear of partiality, for Ahmed, it is our faithfulness to happiness and the “desire to move beyond suffering in reconciliation, the very will to ‘be over it’ by asking others to ‘get over it.’”24 Happiness and wholeness here parallel each other in their apocalyptic character and effect on the feminist consciousness as finite or impossible stopping points. Happiness absolves the imbalances of the status quo while wholeness prevents us from creating an inclusive and common utopia. The feminist killjoy and the cyborg create possibilities and progress out of a suboptimal situation where no final solution seems to exist or be conceivable. Haraway defines the cyborg as a “condensed image of both imagination and material reality, the two joined centres structuring any possibility of historical transformation.”25 The cyborg, unlike an individual trapped in a universe of identities, can advance from suboptimal situations unhampered by a paralyzing will to go back to an organic whole of innocence and exist outside of its own fallen state. The cyborg is “the illegitimate offspring of militarism and patriarchal capitalism” but it has the power to be “exceedingly unfaithful to [its] origins.” It can fight against oppression and the new right by creating utopias out of noninnocent and depressing situations just as the feminist killjoy.26 Haraway calls this phenomenon, “regeneration,” as opposed to “rebirth without flaws.” Regeneration is also possible for the feminist killjoy who, outside existing norms of identity, can visualize the 22. Haraway, 151. 23. Ibid., 150. 24. Ahmed, 216. 25. Ibid. 26. Haraway, 151.

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world with its contradictions and paradoxes and open up, with curiosity and unleashed imagination, new positive possibilities out of malfunctioning situations. Ahmed’s rejection of the “science of happiness” thus complements Haraway’s opposition to identity. The two most fundamental problems with the feminist consciousness are its dependence on identity politics and its association with unhappiness. The impossible task of creating a feminist consciousness through an appeal to a common experience and a common identity impedes the feminist utopia. If Haraway articulates the ironic self-destructive essence of a feminist utopia seeking to create a totalizing identity able to encompass all and leave no one out, Ahmed, for her part, denounces the similarly destructive power of what she calls “the science of happiness.” For Ahmed, feminist consciousness is inherently linked to the unhappiness and bad feeling caused by non-conformity to established ideals, norms, and identities. The latter reduces feminist consciousness to a personal failure of the individual to commit to happiness. Both the cyborg and the feminist killjoy are solutions to these dilemmas of the feminist consciousness. While Haraway and Ahmed are, as I have argued, products of the distinct theoretical traditions of New Materialism and Affect Theory, they are ultimately connected in their commitment to a feminist utopia. As a solution to evade our apocalyptic desire for organic wholes and paralyzing fear of partiality and “monsters,” Haraway creates the cyborg, a post-gender, post-identity creature that operates and revels in the margins, at the junctures of incompatible truths, finally delivered from the quest for innocence, unity and perfection, and able to imagine non-ideal utopias out of the intolerable materiality of the existing world. Ahmed’s feminist killjoy is able to subvert the similarly paralyzing situation created by the science of happiness by standing outside of the closed and narrow world of happy identities, delivered from the desire to move beyond suffering, able to conceive the paradoxes of reality, imagine new possibilities outside the happiness paradigm, and join the cyborg in its strange quest for regeneration.

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Bibliography Ahmed, Sara. The Promise of Happiness. Durham and London: Duke University Press, 2010. Haraway, Donna. “A Cyborg Manifesto: Science, Technology, and Socialist-Feminism in the Late Twentieth Century.” In Simians, Cyborgs, and Women, by Donna Haraway, 149–81. NewYork: Routledge, 1991.

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Pink Embers to Pink Ashes: Revolution as the End of the Homosexual Tradition in China by Julian Binder About the Author

Julian Binder is a North American Studies Major, and East Asian Studies minor in his third year at McGill. He is also serving as the incoming NASSA co-president. Currently on exchange in Hong Kong exploring the region that fascinates and inspires him, Julian has a keen interest in those on the margins of societies and academic focus - especially LGBTQ folk. Apart from investigating homosexuality in China, Julian is a research assistant who has examined the peculiar power and advancement of the AfricanAmericans and women who held the prominent role of postmaster in the time before, after, and during the American Civil War. He is also an independent recording artist.

Abstract

This paper examines the history of homosexuality in China, specifically with respect to the changes in how it was represented and regulated in the wake of the Great Proletarian Revolution. Whereas social attitudes afforded those who engaged in homosexual relations relative laxity in dynastic China, the formation of the People’s Republic precipitated intense regulation and persecution of homosexuals. Building on these findings, this paper argues that the Chinese case displaces historical narratives of inevitable linear progress. Further, this study demonstrates that the history of homosexuality in China should give academics reason to be extremely skeptical of discourses that define pre-modern China as essentially backwards.

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After the Chinese government officially changed its laws regarding “hooliganism” in 1997, regulations which had applied to homosexual behaviour since the late 1950s, China seemed to be heading on the path towards tolerance and openness. “‘We all talk about it much more openly than before,” said a young Beijing fashion designer at the time.1 According to former Chinese health official Wan Yanhai, “[t]he Government no longer has a problem with gays … as long as you don’t organize or speak out, you can do what you want.”2 This emergence from a ‘dark age’ for homosexuals in China, one which had engulfed the majority of the twentieth century, lends credence to the theory of an archetypal, traceable narrative of linear ‘progress’ regarding the acceptance of male homosexuality in China:3 a narrative that moves from backwardness to Western modernization and individualism; from militant communism to a neo-liberal, capitalist modus operandi in the Chinese state’s treatment of homosexual individuals, one which mirrors the major changes of the contemporary reform era.4 Yet neat linearity does not represent the reality of homosexuality in Chinese history. Like most historical change, the sluggish progress towards acceptance of homosexuality in modern China is decidedly non-linear.5 Evidence of homosexuality in Chinese society dates from the country’s earliest periods, as part of a long and accepted tradition lasting up until, and including, the late Qing. However, a sudden blackout of information concerning homosexual activity occurs after the Chinese Communist Party’s (CCP) establishment of the People’s Republic of China (PRC) in 1949, and particularly during the Cultural Revolution, which was accompanied by a 1. Seth Faison, “Door to Tolerance Opens Partway As Gay Life Is Emerging in China.” The New York Times. 1997. Accessed November 21, 2016. 2. Ibid. 3. Due to a scarcity in sources on the topic of female homosexuality in China during the later twentieth century, particularly in English translation, male homosexuality will be the sole focus of this essay. 4. Fangfu Ruan, and Molleen Matsumura. 1991. Sex in China: Studies in Sexology in Chinese Culture. New York: Plenum Press. 120. 5. Margaret Meek Lange, “Progress.” Stanford Encyclopedia of Philosophy. 2011. Accessed November 20, 2016.

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marked increase in state crackdowns on homosexual behavior.6 This substantial shift away from recorded homosexual activity, which included the patronage of young boys, or catamites, by elite men (a practice conducted by multiple emperors from a multitude of different dynasties), male prostitution, and the wooing of feminized male performers in theatre productions by these privileged classes, was by no means a fluke of natural “progression.”7 A culture that had initially shocked Western missionaries due to “the perceived ubiquity and deep roots of homosexuality within Chinese culture” suddenly began to inflict stringent policing and punishment on its homosexual population.8 From the late Qing to the Cultural Revolution and beyond, Chinese homosexuals have experienced revolution as a shift away from the legal laxity and social tolerance once afforded to them, and towards increased censorship and a reversal of previously accepted cultural norms. The legal treatment of homosexuals throughout the late Qing dynasty was a world away from the persecution these individuals would ultimately face during the Cultural Revolution (1966-1976). Though the Qing took a more conservative approach than did their Ming predecessors to curtail what they considered to be general rampant libertinism, throughout the Qing dynasty homosexuals remained largely unpoliced from a legal perspective.9 While the practice of homosexuality did face an increase in written regulation by imperial courts during this period, the Qing were highly selective in their enforcement of these laws, mostly trying to curb the excesses and potential dangers they saw in relation to homosexual behavior.10 For example, more complex laws were implemented to punish homosexual rape from the mid-eighteenth to mid-nineteenth centuries, a practice which proliferated at the time among Qing officials against boys as young as ten - a practice that was well 6. Ibid., 107. 7. Bret Hinsch, 1990. Passions of the cut sleeve: the male homosexual tradition in China. Berkeley: University of California Press. 2. 8. Ibid. 9. Ibid., 139-40.  10. Ibid.140.

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documented in literary depictions by the likes of Li Yu and others.11 While nine of the ten new prohibitions dealt with rape or attempted rape, one referred to consensual acts, which were to be treated “as in the case of military or civil consensual lewdness” with a more lenient punishment than those generally reserved for rape, penalties that included decapitation, among others.12 While it may seem as if the Qing were purposefully targeting homosexual behavior for punishment, scholar M. J. Meijer explains that the Qing code grew to universally condemn and punish all forms of extramarital relations in compliance with the tenets of Confucianism, according to which homosexuality was just one type of infraction.13 Even with these modest changes since the Ming, over time the Qing polity embraced the past indulgence of homosexuality between consensual partners at even the highest level: the Qianlong Emperor had a long affair with famous courtier Heshen; the Xianfeng Emperor was involved with theatrical female impersonator Zhu Lianfeng; and even the Tongzhi Emperor courted a young male scholar.14 These affairs were largely without scandal, save for the last due to the Tongzhi Emperor’s public pursuit of said scholar, which in itself further attests to the relative permissibility of homosexuality at the time.15 Following the toppling of the imperial system and the advent of the PRC, homosexuality was seen not only as an emblem of tradition, but was further associated with the past theatrical performances of gender it had, in part, been correlated with previously.16 In effect, the CCP “removed sexuality from the arena of ‘modernization’” and instead affiliated it with a campaign that endeavored to rid the country of prostitution and other such ‘moral ills’ in order to enforce monogamous heterosexual marriage.17 This focus on monogamy 11. Ibid., 145. 12. Ibid., 144. 13. Ibid. 14. Ibid.,143. 15. Ibid. 16. Susan Mann, 2011. Gender and Sexuality in Modern Chinese History. New York: Cambridge University Press. 148. 17. Ibid.,  151.

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was especially evident in legislation like the Marriage Law of 1950, which, among other things, elevated the status of women, ended the sale of young women as wives and concubines, and gave women divorce rights. This moral shift toward “modernization” was in accordance with the rigidity and militant collective consciousness the early PRC tried to instill during its collectivization and growth programs in its early years. The aim of the Marriage Law was to create strong households where husbands and wives would support one another as workers, while raising their children to be loyal students of the nation who would soon join their parents in building up Chinese socialism: “Husband and wife are in duty bound to love, respect … to engage in production, to care for the children, and to strive jointly for the welfare of the family and for the building up of a new society.”18 This ‘building up’ included a focus on the strength of a productive household that had to be anchored by monogamous heterosexual couples and their children, who all worked together to do their part in strengthening the nation. Homosexuality was seen as a distracting and gratuitously indulgent hindrance to this task, an obstacle not only to one’s duty to reproduce, but one which deprioritized the type of family unit that would facilitate efficiency on a familial, and in turn, collective national level. The importation of Western ideologies in the early twentieth century through the translation of popular and influential works, like Christian missionary tracts and social Darwinist treatises, “introduced a new vocabulary for same sex relationships that labeled them harmful to health and the social order.”19 This permeation of Western ideas and standards, including Christian values that had been diffused through Western colonial presence while “stripped of the[ir] original religious language,” paralleled the rise of the New Culture movement in its Westernizing attempt to bring China out of its purportedly backward Confucian tradition.20 Ideologically speaking, Mao and the CCP were supported by both Marx and Engels, the latter of whom had written contemptuously of homosexuals by 18. “New Laws: Marriage and Divorce, May 1950.” In The Birth of the People’s Republic, 360-61. 19. Mann, 2011, 148. 20. Hinsch, 1990, 167.

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comparing them to ancient Greek pedophiles.21 In fact, the 1956 law criminalizing homosexual acts in China was drawn up around the idea of “hooliganism,” a concept that Marx and Engels had originally used in reference to homosexuals.22 Few records exist today detailing the evolution of how these laws were enforced during the early years of the state, and even during the Cultural Revolution. However, Chinese sociologist and gay rights activist Li Yinhe explores how homosexuality was viewed as a mental disorder throughout this period, wherein those perceived as having even the slightest gay inclinations were detained and placed in brutal internment camps, where they were often tortured.23 This classification of homosexuality as a mental illness - a departure from its previous legal coding as merely ‘poor’ behaviour exhibited by an individual of otherwise sound moral comportment - is in line with homosexuality’s aforementioned status as a distraction and detractor from the productivity of the individual and, in turn, the nation at large. Up until the collapse of the Qing dynasty following the 1911 revolution, the social consequences of practising homosexuality in Chinese culture were minimal, especially compared to the isolation, shaming, and familial abandonment later experienced by homosexuals in the era of the PRC. Although the Qing polity imposed some penalties for homosexual intercourse, the major shift toward negative social associations with, and consequences for, homosexuality can be directly tied to Western influence. In classical Chinese society, the terminology used to describe same-sex relations lacked a specific label like “homosexuality;” instead, this sort of behaviour or desire was generally referred to in poetic terms.24 It is crucial to understand that in the late Qing, homosexuality was viewed not as an ‘essence of being’ that defined a part of an individual’s identity, but rather as a type of behaviour.25 As such, 21. Igor Kon, 1995. The Sexual Revolution in Russia: From the Age of the Czars to Today. New York: Simon and Schuster, 1995. Accessed November 22, 2016. 22. Mann, 2011, 151-152. 23. Zachary Mexico, 2009. China Underground. Brooklyn: Soft Skull Press. 202. 24. Hinsch, 1990, 7. 25. Ibid.,167.

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homosexuality was a participatory realm that individuals could traverse both to and from with little consequence, while still having intercourse with their wives in order to reproduce even if this was not their ideal sexual preference.26 This view of homosexuality waned in the late Qing precisely due to the rise of a moralizing Western influence diffused through literature and a devout Christian missionary presence. The twentieth century brought an end to “the fluid conceptions of sexuality of old, which assumed that an individual was capable of enjoying a range of sexual acts, [and] replaced with the ironclad Western dichotomy of heterosexual/homosexual.”27 In the late imperial period, apart from the secrecy and perceived embarrassment involved in being the receptive partner in a male homosexual relationship, homoeroticism and homosexual behaviour was accepted socially, and even celebrated in the male-dominated, homosocial circles of the elite, where it was most documented to have occurred.28 Before the Qing moved toward a more conservative social view, a contemporary nineteenth century writer observed that “it is considered in bad taste not to keep elegant manservants on one’s household staff, and undesirable not to have singing boys around when inviting guests for dinner.”29 The last embers of this widespread culture would vanish with the establishment of the PRC: its first years yielded almost no evidence of recorded homosexual activity or expression in China, save for government examples pointing to “the decline and evil of western civilization.”30 As scholar Yan Fangfu Ruan notes, “in Weinberg and Bell’s 550-page book on homosexuality, Homosexuality: An Annotated Bibliography (1972), not a single study or record of homosexuality in China is listed.”31 However, a fascinating record of the lived social experiences of gay Chinese men in the period following the Cultural Revolution can be gleaned by reading the responses to a 1985 article entitled “Homosexuality: An Unsolved Puzzle” in To Good Health 26. Ibid., 11. 27. Ibid.,169. 28. Mann, 2011, 142. 29. Hinsch, 1990, 146. 30. Ruan and Molleen 1991, 121. 31. Ibid., 120.

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magazine.32 Around sixty letters were received in reaction to the article, a substantial number considering the strict legal and social prohibitions concerning ‘deviant’ sexuality at the time, which permit the rarest of insights into the tortured social ramifications of what being a gay man in China was like. Many of these self-identified homosexual men were married to women, some admitting that they felt obligated to have children and were terrified of being discovered by their wives or family members. The author of the nineteenth letter requested that the magazine “‘’please keep this [letter] in utmost secret. I would not know how to face others if my identity is known;” another wrote that “If this is known by the public my future would be ruined.”33 Letter writers frequently wrote of their painfully clandestine and lonely existences: “The pain that homosexuals suffer most lies not in homosexuality, but in their inability to find suitable lovers. All homosexuals lock their feelings in their hearts. They are so afraid of being discovered that it makes it impossible to live their lives.”34 This inability to couple with a same sex partner often led to a terrible sense of despair; one contributor wrote that he “thought about death many times. When you are young you cannot fall in love and when you are old you will be alone. Thinking of this makes the future absolutely hopeless.”35 As Fangfu observes, “clearly, the chief source of pain for China’s gay men derives from the fear of societal punishment, including arrest, and possible sentence to labor reform camp or prison.”36 Interestingly, one letter writer critical of homosexuality makes a connection between mental and physical health, and the destruction of “civilization” and the state, which echoes the aforementioned ethos of Maoist doctrine that aimed to fortify the minds and bodies of the Chinese people towards a more efficient service to the nation: “The reason that people despise, prohibit, punish and persecute homosexuals is precisely that the behavior is evil, ugly, opposed to human morality, and an insult to human dignity, promotes crime 32. Ibid., 121. 33. Ibid., 124. 34. Ibid., 125. 35. Ibid., 126. 36. Ibid.

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among youth, ruins their mental and physical health, leads to the destruction of our race and civilization.”37 In the 1980s reform era, homosexuality continued to be seen as a mental illness and a blight to the nation that was to be treated by doctors, while the shame of living as a homosexual without being married to a woman was yet unthinkable. Fanfgu quotes Kristof, who notes, [W]hen homosexuals are treated for what most Chinese doctors regard as their mental illness, they are sometimes given painful electric shocks to discourage erotic thoughts. An alternative approach is to offer herbal medicines that induce vomiting. In either case, the idea is to stimulate an extremely unpleasant reaction that will be associated thereafter with erotic thoughts and thus reduce the patients’ ardor. Both approaches ... are hailed by doctors in China as remarkably successful in “curing” homosexuality.38 As Western style classifications began to take root ever deeper in Chinese society, particularly after the ‘opening up’ of China that occurred during the economic privatization of the reform era, homosexuality fell into the same patterns of stigmatization that it had in Western countries. Laid bare, the reform era saw no end to the new culture of homosexual shaming, even after an unspeakably brutal decade of Cultural Revolution for gay Chinese men, disrupting a millennium of Chinese social tradition and the previously nuanced perspective on homosexuality in relation to individual identity that China had formerly embraced. The content and quantity of Chinese cultural depictions of homosexuality through to the twentieth century reflects the cultural boundaries within which homosexuality could be comfortably expressed and framed. Based on the aforementioned histories and analyses expounded throughout this paper, the patterns of homosexual depictions in media follow a similar trend of celebration 37. Ibid., 127. 38. Ibid., 132.

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and liberal decadence in the imperial era, moving toward a sudden blackout of references to homosexuality come the Mao period. While there is a long and exhaustive history of literature and art detailing homosexual behaviour throughout the entire imperial era, from poetic musings to graphic sexual descriptions, the most nuanced period to examine is the late Qing. As previously described, the late Qing court became more socially conservative than its predecessors in the face of Western influence and chaotic political upheavals. In Chen Sen’s novel entitled Precious Mirror of Ranking Flowers, a character based of off Qing author Bi Yuan gives what feels like a final defence of same-sex love in the aftermath of the increased regulation of homosexual behaviour and influence of Western thought in the late Qing: I do not comprehend why it is acceptable for a man to love a woman, but it is unacceptable for a man to love a man. Passion is passion whether to a man or a woman. To love a woman but not a man is lust and not passion. To lust is to forget passion. If one treasures passion, he is not lewd.39 In the PRC, media representations of gay people - classified as mentally ill individuals who obstructed the development of a strong Chinese society - were banned; during the Cultural Revolution, the burning of books that included works depicting homosexuality frequently occurred, while other famous texts were rewritten to be expunged of any reference to homosexuality, including the famous Dream of the Red Chamber.40 During the reform era, the Sinosphere converged in order to exploit this now-taboo cultural topic: mainland, Taiwanese, and even Hong Kong newspapers ruthlessly manipulated the culture of shame and gossip surrounding homosexuality to sell more papers, often emphasizing any criminal associations with gay ties and homosexual activity in tabloid stories.41 In his mid-1980s novel Two Years in the Melting Pot, well-known reporter Z. Liu 39. Hinsch, 1990.,159. 40. Ibid. 169. 41. Ibid., 170.

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denied that China had a homosexual population at all after returning from a visit to America, a common sentiment given publicity at the time.42 While censorship of gay-themed media has waned in recent times (alongside other restrictions and changes to Chinese law), these changes are worthy of analysis as part of the larger economic and political forces that have caused rapid social change in Chinese society over the last two decades.43 Chinese homosexuals, self-identified and not, experienced twentieth-century revolution as a frightening and brutal shift away from centuries of deeply embedded cultural tradition and into a mire of legal, social, and cultural upheaval. For the CCP, tradition was shed in order to move the Chinese people forward towards strength and prosperity by means of socialism. Ironically, gay people, linked to one of the oldest traditions of them all, fell victim to this cultural culling exacerbated by the impact of a moralizing, colonial Western influence. Even so, the story of China’s homosexual tradition challenges notions of ‘old China’ as backward. The approach to human sexuality as existing on a spectrum, and the notion that behaviour does not define one’s identity, sexual or otherwise, was as progressive as some of the most liberal attitudes recently assumed in Western nations. While monogamous same sex coupling was not accepted (particularly in the later years of imperial rule), credit is due to the kind of individual freedom afforded to those who partook in homosexual behaviour. China’s experience with homosexuality through times of revolution points towards a potential litmus test for those who claim to support a truly equalizing revolution; as radically different as any regime may claim to be, how they treat those wishing to express their most authentic self, their truth, is what sets those seeking national loyalty apart from the destructively oppressive powers of times gone by.

42. Ruan and Molleen 1991, 131. 43. Mann, 2011, 183-185.

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Bibliography Faison, Seth. “Door to Tolerance Opens Partway As Gay Life Is Emerging in China.” The New York Times. 1997. Accessed November 21, 2016. Hinsch, Bret. 1990. Passions of the Cut Sleeve: The Male Homosexual Tradition in China. Berkeley: University of California Press. Kon, Igor. 1995. The Sexual Revolution in Russia: From the Age of the Czars to Today. New York: Simon and Schuster, 1995. Lange, Margaret Meek. “Progress.” Stanford Encyclopedia of Philosophy. 2011. Accessed November 20, 2016. Mann, Susan. 2011. Gender and Sexuality in Modern Chinese History. New York: Cambridge University Press. Mexico, Zachary. 2009. China Underground. Brooklyn: Soft Skull Press. “New Laws: Marriage and Divorce, May 1950.” The Birth of the People’s Republic, 360-61. Ruan, Fangfu, and Molleen Matsumura. 1991. Sex in China: Studies in Sexology in Chinese Culture. New York: Plenum Press.

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C itizens United and Pseudo-Associational

Corporate Speech: A Nuanced Approach to Understanding Campaign Finance Jurisprudence by Jason Li About the Author

Jason is a U3 student of honours Political Science with minors in International Development Studies and East Asian Language and Literature. With a passion for justice, public policy, and democratic studies, he has committed himself to researching, analyzing, and interpreting current global affairs through an objective and informed lens. In particular, he strives to better understand Canadian politics, European politics, cross-Strait relations, international security, non-democratic regimes, and all things American politics.

Abstract

Over the course of the past five decades, American political attention has increasingly turned to the ways in which money, campaign finance, and politics converge to form public policy. In its decision in Citizens United v. Federal Election Commission, the Supreme Court significantly reinterpreted its understanding of the constitutional rights allotted to corporations and associations, in turn granting these entities widespread influence in federal campaigns. In order to counter the reasoning used in this influential ruling, this article argues that a practical approach taking into account both precedent and political culture is required. By analyzing past jurisprudence on corporate speech rights, this article demonstrates how the Roberts Court seriously erred in striking down prohibitions of corporations from conducting electioneering communications. Corporations’ unique characteristics, the government’s reasonable interest in preventing corruption, and the unburdensome nature of the statute in question all demonstrate the missteps in Citizens United’s reasoning. In so arguing, this article presents a nuanced way of interpreting corporations’ claims to speech and association rights and their privileged ability to pool and spend campaign funds.

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I. Introduction In the wake of the 2010 Supreme Court Citizens United v. FEC decision, American politics have taken a sharp, consequential turn into political territory unseen since the 19th century. The relationship between money and politics has been rekindled in a wholly unprecedented turn of events: outside spending in Senate elections doubled from 2010 to 2014, a deluge of undisclosed dark money from super PACs has poured into federal races, and outside interest spending has surpassed candidate expenditures.1 Given its significant effects on American politics, a critical evaluation of the merits and reasoning of the landmark Citizens United decision is in order. This paper argues that the majority opinion in Citizens United seriously erred in striking down the provision of the Bipartisan Campaign Reform Act that amended 2 U.S. Code §441b to prohibit corporations and other associations from conducting “electioneering communications” directly before federal elections. The unique characteristics of corporations, past jurisprudence relating to First Amendment speech restrictions, and the unburdensome nature of §441b’s restrictions on corporate speech all affirm that the Court ignored vital information in striking down the section as it relates to for-profit corporations. In so arguing, this paper presents a nuanced, narrowly focused approach to interpreting and arguing First Amendment jurisprudence pertaining to corporate political speech, stressing a practical approach which takes into account both precedent and current understandings of how campaign finance regulations affect law. II. Establishing Jurisprudence Since the passing of the Federal Election Campaign Act of 1971 (FECA), the statute’s key provisions endured several challenges to their constitutionality. The result of these challenges, as a whole, was a less powerful but still influential FECA. The remaining provisions of FECA allowed for limits and disclosure requirements on campaign contributions. These provisions combined with the subsequent 1. Ian Vandewalker, Election Spending 2014: Outside Spending in Senate Races Since Citizens United (New York: Brennan Center for Justice Analysis, 2015), 1-2.

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Bipartisan Campaign Reform Act of 2002 (BCRA) provisions, however, underwent thorough review by the Supreme Court over the course of the new millennium. In the wake of Citizens United v. FEC in 2010, the end result observed today is the complete absence of any major statutory provisions regulating campaign finance besides the ban on direct corporate contributions to campaigns, limits on individual campaign contributions, and disclosure requirements for non-501(c)(4) organizations.2 The Supreme Court has notably struck down the limitations on campaign expenditures and the prohibition of corporations, unions, and not-for-profit organizations from broadcasting electioneering communications before elections. The justifications to strike down campaign finance provisions built up in cases since Buckley, particularly Bellotti, Citizens United, and McCutcheon, have created an airtight framework of jurisprudence in favor of unlimited amounts of money in politics. In cases like these, First Amendment rights to spend money as a proxy for speech, applications of freedom of association to corporate and union membership, and claims of the excessively restrictive means of regulating contributions have all been reaffirmed and applied to campaign finance case law. Attempts to restrict the scope of actions against these principles have faced strict scrutiny review by the Supreme Court and have subsequently fallen by the wayside. In order to construct a path forward in advocating for campaign finance reform, a clear understanding of the relevant bedrock assumptions in judicial precedent must be established. To process the complicated history of case law, the specific constitutional claims made can be divided into two categories: First Amendment freedom of speech claims and First Amendment implied freedom of association claims. First, paramount to court deliberations of campaign finance regulation is First Amendment freedom of speech. As reasoned in both Buckley and Citizens United, freedom of speech as a necessity for both electoral decisions and democratic principles fits tightly within the Court’s understanding of the purpose of the First Amendment as a whole. The Court has reasserted that the 2. “The FEC and the Federal Campaign Finance Law,” last updated December 2016.

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“profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”3 4 In Citizens United, the majority opinion penned by Kennedy references Bellotti in stating, “[p]olitical speech is ‘indispensable to decisionmaking in a democracy,’” thus invoking the accepted idea that a “marketplace of ideas” from which voters may choose is central to guaranteeing democratic and republican governance. 5 6 Under a similar pretense, the Court has also asserted that the government cannot restrict political speech based on the content or identity of the speaker. The government may also not restrict the speech of some for the benefit of others, meaning equalization is not a sufficient compelling government interest, since the idea of “equalizing the relative ability of individuals and groups to influence the outcome” is “wholly foreign to the First Amendment.”7 Second, in order to deny major provisions of campaign finance regulation, the Court has reinvigorated and applied freedom of association rights to actors engaging in political speech, most notably corporations. In his opinion in Citizens United, Justice Kennedy cites Bellotti, writing “[t]he Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons’” and “[i]f the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”8 By applying free association to free speech, the Court has made clear its current understanding of corporations as associations of individuals and thus as legal persons privileged with free speech. 3. New York Times Co. v. Sullivan, 376 U.S. 270 (1964). 4. Joel M. Gora, “Free Speech, Fair Elections, and Campaign Finance Laws: Can They Co-Exist?,” Howard Law Journal 56.3 (2013): 780. 5. Citizens United v. Federal Election Commission, 558 US ___ (2010). 6. United States v. Auto Workers, 352 U.S. 593 (1957) (“It is therefore important – vitally important– that all channels of communication be open to them during every election, that no point of view be restrained or barred, and that the people have access to the views of every group in the community.”) 7. Buckley v. Valeo, 424 U.S. 1, 48-9 (1976). 8. Citizens United v. Federal Election Commission, 558 US ___ (2010), quoting First National Bank of Boston v. Bellotti, 435 U.S. 765, 783. Italics added.

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III. Literary Critique – Existing Proposals to Move Forward In the wake of Citizens United and its substantial changes to American politics, many legal scholars have objected to the decision. Professor Richard Hasen, in an article in the Georgia State University Law Review, elaborates on the constitutionality of the Austin antidistortion and political equality rationales.9 Hasen argues that the “abandonment of the antidistortion rationale by the dissenters in Citizens United” led to the “orphaning” of the rationale as a whole. He laments this development, positing that not employing the political equality rationale “will make it harder to get legislative and judicial change in the campaign finance arena.”10 He thus argues that, despite it being explicitly rejected and Austin being overruled in Citizens United, this rationale born in 1990 should still have jurisprudential standing in fighting for restrictions of corporate spending in campaigns. Although in line with the majority of Americans’ view on the subject, on a constitutional level Hasen’s reasoning is far from the most strategic approach in attempting to resurrect campaign finance restrictions on corporate spending.11 To reinsert into Supreme Court jurisprudence the political equality and antidistortion rationales created by Austin –a “surprise” of a decision, as acknowledged by Hasen himself– seems inconceivable given an overwhelming history of equality being a means instead of an end in American case law and political culture.12 13 14 15 It is in this way that Hasen’s suggestion of using the Austin rationales has little practical traction in illuminating a path forward for campaign finance advocates. A 9. Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990). 10. Richard L. Hasen, “Citizens United and the Orphaned Antidistortion Rationale,” Georgia State University Law Review 27.4 (2011): 991. 11. The Pew Research Center, Obama’s Ratings Are Flat, Wall Street’s Are Abysmal (Washington, D.C.: The Pew Research Center, 2010), 31. 12. Hasen, “Citizens United and the Orphaned Antidistortion Rationale,” 991. 13. Bradley Smith, “Corporations Are People, Too,” NPR, 10 Sept. 2009, accessed 14 Dec. 2016. 14. J. Harvie Wilkinson III, “The Dimensions of American Constitutional Equality,” Law and Contemporary Problems 55.1 (1992): 242. 15. Michael L. Skolnik, “Lipset’s Continental Divide and the Ideological Basis for Differences in Higher Education between Canada and United States,” The Canadian Journal of Higher Education 10.2 (1990): 85.

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more reasonable approach which better takes into account case law and political culture is thus required. Professor Lawrence Lessig attempts to propose a more definitionbased proposal than Hasen’s. Taking an originalist approach, Lessig points to incongruities in the Supreme Court’s definition and application of quid pro quo corruption as a weak point in litigation’s history. He suggests that, by reverting to the broader definition of corruption promoted by Madison and other Framers, future campaign finance law can adequately tackle money in politics. He conceptualizes corruption as any “improper dependence” of elected officials on actors other than “the People” –such as campaign funders– and suggests the Court has reason and the obligation to litigate under such an understanding.16 Although well-reasoned and accurate in reconceptualizing the forms corruptive influence takes in today’s unequal America, Lessig’s approach is ideologically contestable. He quotes Federalist 52’s proclamation of the necessity that the House of Representatives be “dependent upon the People alone.”17 However, in doing so, he leaves a wide gap for anti-campaign-finance-reform supporters to reassert the same reasoning that prior cases have used: that corporations are also people and thus protected by First Amendment speech rights. In other words, Lessig’s argument fails to undermine the conservative rationale that has been applied in Bellotti, Citizens United, and Hobby Lobby. Without doing so, his reasoning is impractical in fighting the uphill battle toward pro-reform campaign finance jurisprudence. In sum, the constitutional justifications presented by Hasen and Lessig remain difficult to square away with the highest court’s decisions and American political culture. In light of the extremely airtight pro-First Amendment reasoning of the court in the past forty years, a more narrowly focused approach to re-institutionalize provisions of campaign finance reform while simultaneously respecting precedent is needed. 16. Lawrence Lessig, “Out-Posting Post,” in Citizens Divided: Campaign Finance Reform and the Constitution, ed. Robert Post (Cambridge: Harvard University Press, 2014), Kindle. 17. Lessig, “Out-Posting Post,” Kindle.

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IV. A Nuanced Approach Forward The Supreme Court’s understanding of the role of money as speech is well established; similarly well established is the Court’s reasoning that unfettered access to speech is necessary for democratic governance. Less clearly established are the exact justifications that allocate these judicial understandings to corporations. Corporations have long been at the center of discussions of campaign finance regulation: the Tillman Act of 1907 dealt specifically with corporate campaign contributions.18 Nevertheless, the judicial reasoning for linking corporations to First Amendment rights is a recent development, coming particularly to light after Citizens United. It is thus at this less established linkage that a new, nuanced approach must be aimed in order to articulately argue the constitutionality of corporate campaign finance regulations. The vulnerability of this constitutional linkage is evident in two ways. First, it is a relatively untouched topic of jurisprudence that is less established than others like “antidistortion” (cf. Hasen) and more constitutionally grounded than others like “dependence corruption” (cf. Lessig). Second, it has been a topic which the Court has actively tried to ignore, either for lack of clear consensus on the topic or for fear of exercising excessive judicial review. These two factors lend particular weakness in how the Court has reasoned to strike down corporate restrictions in campaign finance regulation, and it is here that legal scholars must focus their attention. In discussing the underlying justifications used by the Supreme Court to recognize corporate constitutional rights, Professor Adam Winkler outlines three pillars on which the Citizens United decision rested: a) corporate personhood, b) the assumption that corporations are associations of natural persons and thus protected by certain constitutional rights, and c) the notion that the identity of the claimant of a constitutional right is irrelevant.19 Contrary to multiple constitutional amendment proposals and public understanding of the issue, Winkler is correct in stating 18. Richard Briffaut, “Symposium: Citizens United v. Federal Election Commission: Implications for the American Electoral Process,” Cornell Journal of Law and Public Policy 20.571 (2011): 650. 19. GVFJ, “Adam Winkler: Citizens Unite: Battle over the Constitutional Rights of Corporations,” posted 20 Dec. 2012.

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that abolishing corporate personhood as a legal fiction would not actually reverse the decision made in Citizens United.20 “Corporate personhood,” Winkler says, “was not nearly as central to Justice Kennedy’s opinion for that court as it is often assumed… Nowhere in that opinion does Justice Kennedy say that corporations are persons.”21 Corporate personhood plays an integral role in modern American society: it facilitates trade by making corporate contracts enforceable, grants corporations the right to own property, and allows them to be sued, all of which even its generally progressive opponents would agree are necessary for a modern state’s functioning legal system.22 Thus, it is not the legal fiction of corporate personhood on which new approaches to justifying the constitutionality of campaign finance reform should rely.23 Instead, it is the latter two pillars outlined by Winkler which constitutional scholars must investigate –two concepts which can be termed the “freedom of association assumption” and the “speaker-neutral notion.” Using these two concepts pertaining to the recognition of corporate constitutional rights in addition to the Equal Protection Clause, a nuanced argument can be made that the logic behind Citizens United was misguided and inconsistent with previous precedent set by the Court. In order to justify the constitutionality of limiting political speech originating from corporate general treasury funds, an approach rooted in the questioning of corporations’ status as associations is required. In this section, this approach is outlined first by describing the “special characteristics” of corporations, then by illuminating the Court’s legitimate constitutional right to hold corporate political speech to a unique standard, and lastly by establishing that upholding certain restrictions on corporate political speech is not in fact “burdensome.” 20. James Marc Leas and Rob Hager, “The Problem With Citizens United Is Not Corporate Personhood,” Truthout, 17 Jan. 2012, accessed 14 Dec. 2016. 21. GVFJ, “Adam Winkler…,” posted 20 Dec. 2012. 22. Brandon L. Garrett, “The Constitutional Standing of Corporations,” University of Pennsylvania Law Review 163.95 (2014): 114. 23. 1 U.S. Code § 1. (“the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals”)

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A. The False Freedom of Association Assumption For many years of corporate case law, the Supreme Court has given little reasoning as to why on multiple occasions it has assumed that corporations are associations. Employing the dictionary definition of “association,” it is certainly facile to make this assumption: a corporation is indeed a grouping of natural persons, which is the general definition of an association. Nevertheless, given the influence corporations demonstrate in American society, the Court’s failure to distinguish between types of associations of natural persons is a dangerous neglect of key definitional differences between corporate and unincorporated groups, with a clear consequence being the Citizens United decision. Under closer scrutiny, it becomes evident that corporations are not ordinary associations. Nonmedia, non-MCFL corporations24 have three special characteristics that render them distinct from other types of associations, such as voluntary associations. Corporations thus belong in a special classification of associations, a fact which has in the past led to the constitutionally justified restriction of certain rights generally restricted to natural persons and associations of natural persons. This classification must be applied to corporations in future campaign finance cases in order to preserve integrity in the democratic process. The first special characteristic of corporations pertains to the jurisprudence on freedom of association and corporations’ heavily regulated legal status. Contrary to Citizens United, the presumption of the Court in precedent has been that corporations are indeed not reserved freedom of association. This fact is demonstrated by pondering what past jurisprudence would have formed if corporations were consistently granted freedom of association. Would a corporation have challenged the establishment of the Federal Trade Commission or the Environmental Protection Agency by claiming it abridged the members’ rights to freely associate or 24. FEC v. Massachusetts Citizens for Life, Inc. (MCFL) was decided in 1986, the term “MCFL organization” became synonymous with an organization organized under 26 U.S.C. § 527 which was “for the express purpose of promoting political ideas” and which had “no shareholders or other persons affiliated as to have a claim on its assets or earnings.”

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their right to pursue their interests? This is where Justice Kennedy’s application of freedom of association to corporations does not align with established jurisprudence: in the majority of corporate law cases, the implicit judicial understanding has been that the corporation is a unique form of association, one that is not always reserved the same protection from regulation as other association. For example, corporations must file for registration in the state in which they are to be incorporated simply to exist, a process which undoubtedly differentiates corporate associations from other associations. Would a requirement that a neighborhood group of like-minded environmentalists register in order to be deemed an association be upheld by the Court? It seems unlikely. Thus, for Justice Kennedy to pick and choose favorable precedent regarding corporations as associations is to unjustifiably grant to corporations rights from which they had previously extensively been restricted. The second characteristic distinguishing corporations from voluntary associations stems from the notion that corporations’ status under the Commerce Clause lends them vulnerable to regulation by Congress in ways completely foreign to voluntary associations. Article 1, Section 8, Clause 3 of the Constitution grants Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This power enumerated to Congress greatly expanded with the rapid economic development and rise of corporations in the late 19th century, with Congress eventually subsuming wide-ranging power to authorize federal control over economic matters, such as breaking up trusts.25 This constitutional duty of Congress to regulate commerce, and thus corporations, is arguably superior to the less established freedom of association because of the former’s textualist presence in the Constitution and centuries-long history of litigation. Furthermore, less clear than the Commerce Clause is the application of this freedom of association to corporate entities. As Wayne Batchis describes, the notion that the First Amendment freedom of expressive association established in NAACP v. Alabama ex rel. Patterson applies directly to 25. Columbia Law Review, “State Power to Tax Corporations under the Commerce Clause and the Fourteenth Amendment,” Columbia Law Review 25.3 (1925): 333.

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corporations has little precedent.26 Batchis writes, “the implications of [the relationship between association and speech] were limited to the adjudication of an association member’s individual rights,”27 and thus the citing of right to association absent mention of individuals’ rights in Citizens United’s majority opinion was leaps and bounds outside the scope of the Patterson decision. Given the clear enumeration to Congress of the power to regulate interstate commerce and the less certain notion that freedom of expressive association automatically applies to corporate entities, the Court must apply greater scrutiny in investigating cases in which the latter trumps the former.28 The third special characteristic which must be recognized by the Court relates to the unique hierarchical structure of corporations and its impact on the right to associate freely. As Patterson and other freedom of association cases have established, the right to associate rests on the notion that such a right implicates directly the First Amendment rights of the individual members of the association.29 30 This understanding comes into question, however, when corporate structure is taken into account. The decision-making body of large for-profit corporations often rest on the decisions of shareholders, who may or may not have similar interests with both one another and their stakeholders in engaging in political speech. In his dissent in Citizens United, Justice Stevens writes, “[the basic premise underlying the Court’s ruling does not] tell us when a corporation may engage in electioneering that some of its shareholders oppose.”31 Justice Stevens thus identifies the difficulty in rectifying the governance of corporations with the Court’s previous understanding of associations as entities where individuals 26. Wayne Batchis, “Citizens United and the Paradox of Corporate Speech: From Freedom of Association to Freedom of the Association,” New York University Review of Law & Social Change 36.1 (2012): 5. 27. Batchis, “Citizens United…,” 16. 28. Roberts v. United States Jaycees, 468 U.S. 609 (1984). 29. Roberts v. United States Jaycees, 468 U.S. 609 (1984). 30. Federal Election Comm’n v. Beaumont, 539 U.S. 161 (2003). (“corporations’ First Amendment speech and association interests are derived largely from those of their members.”) 31. Citizens United v. Federal Election Commission, 558 US ___ (2010).

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with shared interests have the “right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.”32 Stevens’ understanding thus provokes the question: who within a corporation defines the general interests of the entire body and thusly makes expenditures from the general treasury funds to further those interests? Add to this question the legal, contractual, and market-driven obligations of a corporate governing body to non-shareholder stakeholders, and the “unified interest” presumption granted to a corporation and its subsequent right to assume privileges of right to association deviate toward fallacy.33 The right of a member of an association to claim expressive First Amendment speech rights qua association presumes that the association’s interests are practically universal within the association as a whole. Without such an assumption, any member would have the right to claim First Amendment protections under the name of the association in which she is a member. The special governance hierarchy of corporations thus significantly complicates the linkage between the individual and the association, calling into question the right of corporate entities to automatically claim freedom of association without consideration otherwise by the Supreme Court. In sum, three special characteristics of corporations stem from their heavily regulated nature under existing Congressional oversight, their conflicting role within the original text of the Constitution, and their unique governance and decision-making structures. These characteristics shed sufficient doubt on the Court’s “freedom of association assumption,” which has unfoundedly granted corporations First Amendment privileges as ordinary associations of natural persons. Corporations are not ordinary associations; as unique entities, they must not be automatically allotted the equal protections as voluntary and unincorporated associations. B. The Misguided Speaker-Neutral Notion In its Citizens United opinion penned by Justice Kennedy, the Court 32. Roberts v. United States Jaycees, 468 U.S. 622 (1984). 33. OECD, Principles of Corporate Governance (Paris: OECD, 2004).

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found that “[i]f the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”34 The key reasoning many have gleaned from Kennedy’s logic here is that Congress may not restrict speech rights based on the identity of the speaker, since his language hints toward almost impossible criteria to restrict speech rights of any legal person. Kennedy concedes that “[t]he Court has upheld a narrow class of speech restrictions that operate to the disadvantage of certain persons”35 and that there have been key prior rulings that did indeed restricted a narrow class of speech. Nevertheless, he quickly disavows the application of those rulings’ past reasoning to Citizens United and BCRA, implying that, unlike the other cases, §441b did not demonstrate a sufficient governmental interest in “allowing governmental entities to perform their functions.”36 Here, Justice Kennedy neglects to consider two key notions. First, he fails to consider the circumstantial and special characteristics of corporations, as described before, which should provoke the Court to uphold the speech restrictions. In so doing, Justice Kennedy slights the notion that corporations’ pseudo-associational status may merit reconsideration of their automatic First Amendment rights as applied to §441b. In order to justify that “special characteristics” may merit certain reasonable restrictions on forms of speech, one need not stray far from current Court jurisprudence. In 2007, the Court decided Morse v. Frederick,37 ruling on the basis that, when referring to legislative restrictions of speech, differential treatment is constitutionally suspect unless justified by some special characteristic.38 39 Notably, in Morse and similar cases, speech restrictions of wide classes of natural persons’ right to free speech, such as students within public schools, were upheld by the Court. Although Kennedy briefly acknowledges this by citing Bethel 34. Citizens United v. Federal Election Commission, 558 US ___ (2010). 35. Ibid. 36. Ibid. 37. Morse v. Frederick, 551 U.S. 393 (2007). 38. Minneapolis Star v. Minnesota Comm’r, 460 U.S. 575 (1983). 39. Morse v. Frederick, 551 U.S. 393 (2007).

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School District No. 402 v. Fraser and Parker v. Levy, by declining to consider whether the special characteristics of corporations as associations would invoke similar reasoning, the associate justice errs in automatically applying Citizens United’s right to speak unrestrictedly.40 41 Secondly, Justice Kennedy’s opinion also mistakenly fails to recognize –or at least sufficiently apply– the clear government interest in prohibiting speech direct from corporate coffers. The distorting effect of corporate money in elections has been well established by many scholars and even the Court itself.42 In Austin, for example, the Court found that the state had a compelling interest in controlling “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”43 This understanding of the role money in politics clearly touches upon the American government’s ability to function, which Kennedy himself reasons is necessary justification for speech restrictions. Thus, by ignoring the possibility that restricting corporate money from electioneering activities could prevent distortion of the political process and encourage the healthy functioning of representative democracy, Kennedy fails to recognize the veritable public policy justification Congress had in passing §441b. Moreover, the long history of the Court adjudicating on which rights corporations are and are not granted similarly undermines Kennedy’s reasoning by demonstrating his failure to separate the rights of corporations as associations and the rights of corporations as legal persons. In past jurisprudence, the Court has variously justified their decisions in granting or denying corporations rights by asserting corporations’ either associational or speech rights,44 40. Bethel School Dist. No. 403 v. Fraser, 478 U. S. 683 (1986). (protecting the “function of public school education”) 41. Parker v. Levy, 417 U. S. 759 (1974). (ensuring “the capacity of the Government to discharge its [military] responsibilities”) 42. Austin v. Michigan Chamber of Commerce, 494 U.S. 660 (1990). 43. Austin v. Michigan Chamber of Commerce, 494 U.S. 660 (1990). 44. Corporations have been granted constitutional rights under the Contracts Clause,

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meaning corporate constitutional rights were almost always framed under one constitutional justification. 45 46 Thus, by simply asserting that corporations have constitutional rights, ignoring precedent where corporations were denied constitutional rights, and failing to demonstrate how corporations’ associational status automatically grants their alleged speech rights strict scrutiny review, Kennedy fails to propose one solid constitutional argument and relies inadequately on assumptions never confirmed. Due to corporations’ special characteristics and precedent of determining a corporation’s constitutional rights on a case-by-case basis, Justice Kennedy’s argument that the identity of the speaker is completely irrelevant to the restriction of First Amendment rights is invalid. The associate justice’s reasoning that corporations’ political speech cannot be restricted because “the First Amendment bars regulatory distinctions based on a speaker’s identity” neglects the special characteristics of corporations and valid justifications found in precedent which allow the Court to restrict speech of certain groups.47 C. The Nonexistent Undue Burden So far, this paper has utilized Winkler’s understanding of two key judicial pillars which supported the opinion of the Court in Citizens United’s striking down of §441b. However, an additional point of weakness in Justice Kennedy’s opinion is similarly important in undermining Kennedy’s reasoning. It relies on undue burdening of speech and equal protection. Commenting on alternative paths by which corporations may engage in political speech, Justice Kennedy writes, “the option to form PACs does not alleviate the First Amendment problems with section 441b. PACs are burdensome alternatives; they are expensive the Due Process Clause, the Fourteenth Amendment Equal Protection Clause, and the Fourth Amendment, among others. Corporations are, however, not granted Fifth Amendment self-incrimination rights, Article IV Privileges and Immunities Clause rights, or Due Process Clause liberty rights. 45. Garrett, “The Constitutional Standing of Corporations,” 97-8. 46. Ibid. 47. Citizens United v. Federal Election Commission, 558 US ___ (2010).

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to administer and subject to extensive regulations.”48 This reasoning closely aligns with previous judicial decisions of the “undue burden standard,” whereby the Court evaluates whether overly burdening access to a certain fundamental right equates to fully restricting said right.49 50 In using this argument, Kennedy fails to grasp three key concepts which undermine his argument and further show that corporations must not be so privileged with the ability to spend directly from their treasuries to influence federal elections. First, by arguing that prohibiting corporations from using treasury funds to make independent expenditures is overly burdensome of speech, Kennedy ignores the multitude of alternative paths by which corporations, like natural persons, may engage in electoral discourse. On the corporate level, regardless of the Citizens United decision, for-profit corporations would nevertheless still be allowed to establish 527 organizations to achieve their interests in a non-express advocacy manner.51 Corporations would also not be restricted from donating to 501(c)(4) “social welfare” organizations under the condition of disclosure.52 53 Second, on an individual level, by failing to see the very basis for which associations are formed for expressing political speech, Kennedy neglects the more numerous avenues for-profit corporate individuals have at their disposal. If Kennedy justifies that corporations are automatically guaranteed First Amendment rights because of their undeniable right to association, he should recognize that “the original basis for recognition of First Amendment protection of the freedom of association” was to “effectively amplif[y] the voice of the [association’s] adherents.”54 Likewise, as argued by Alexis de Tocqueville, original associations in the United States were formed to serve the unified goals of a group of otherwise 48. Ibid. 49. Planned Parenthood v. Casey, 505 U.S. 833 (1992). 50. United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995). 51. FEC v. Mass. Cit. for Life, 479 U.S. 239 (1986). 52. “Outside Spending: Frequently Asked Questions About 501(c)(4) Groups,” Open Secrets, accessed 14 Dec. 2016. 53. Chris Good, “Don’t Blame Citizens United,” The Atlantic, 20 Oct. 2010, accessed 14 Dec. 2016. 54. Buckley v. Valeo, 424 U.S. 22 (1976), quoting NAACP v. Alabama ex rel. Patterson 357 U.S. 460 (1958).

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powerless citizens in the age of “extreme egalitarianism” of the early 19th century.55 However, as demonstrated before, the interests of corporate shareholders are not always unified. Additionally, in a large amount of cases within for-profit corporations, the shareholders and other high-level managers are not otherwise prohibited from forming other associations within society. Nor are the personal rights of these individuals comprising the for-profit corporate “association” burdened by the BCRA’s requirement of setting up a separate segregated fund (SSF).56 Thus, since the basis for an association’s assertion of constitutional rights rests upon the rights of the individuals, the translation of individual rights into associational rights lacks substantial merit without a valid assertion of these individuals to, for example, spend directly from corporate coffers to influence federal elections. Therefore, the various avenues by which these individuals both as individual citizens and as a collective “association” are wholeheartedly sufficient in granting these individuals alternatives to expressing speech. In this way, the restriction on using general treasury funds can be classified as a reasonable and least restrictive means to meet a demonstrated government interest.57 Lastly, equal protection plays an integral role in questioning Kennedy’s judgment that BCRA’s treasury provision is overly burdensome. His attempts to specifically protect the rights of corporations to spend directly from their coffers actually overly burden the rights of voluntary associations and individuals under the Equal Protection Clause. Michael Kang has argued that the majority in Citizens United unjustly failed to see that striking down prohibitions on direct corporate spending in turn prioritized, streamlined, and facilitated corporate speech over the speech of 55. William Galston, “Civil Society and the “Art of Association”,” Journal of Democracy 11.1 (2000): 64. 56. Then, in its 1990 decision in Austin v. Michigan Chamber of Commerce, the Court found that a Michigan law prohibiting corporations from using treasury funds to support or oppose candidates in state elections did not preclude corporations from making such expenditures from a separate segregated fund (SSF) not from their treasuries. 57. Hale v. Henkel, 201 U.S. 43 (1906).

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natural persons and unincorporated voluntary associations.58 Kang writes, “[j]ust as non-shareholders can aggregate funds through a political action committee (PAC) or political party, so too can shareholders… [It is] difficult to understand why speech by PACs and political parties, whose First Amendment credentials are at least as strong in [the] context [of Citizens United] as for-profit corporations, would receive less constitutional protection.”59 In other words, if non-shareholder natural persons are required to pool their funds to effectively influence elections through a PAC, why should corporations not be “burdened” in the same manner by requiring connected PACs, which are practically identical to regular non-shareholder PACs? Using this reasoning, if the majority in Citizens United truly believed that corporations are entitled to the same constitutional rights as natural persons, the Court’s streamlining of corporate speech unjustly advantages for-profit corporations since these entities can act as “both a source of funds and the pooling entity for those funds” itself.60 If Kennedy reasons that having to pool funds through FEC-regulated PACs constitutes “practical” prior restraint,61 should the Court not strike down all PACs, including those where natural persons pool their funds, as unconstitutional under the pretense that they are always “practical” prior restraint? These questions illustrate the majority opinion’s violation of the Equal Protection Clause, which is invoked when fundamental rights of groups are differently burdened.62 In striking down the requirement for corporations to establish SSFs, the majority in Citizens United privileges corporations in a way that applies the law unequally between natural persons and corporate entities –which the 58. Michael S. Kang, “After Citizens United,” Indiana Law Review 44 (2010): 243-8. 59. Kang, “After Citizens United,” 245. 60. Ibid. 61. McCutcheon v. Fed. Election Comm’n, 572 U.S. ___ (2014) (“These onerous restrictions thus function as the equivalent of prior restraint by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit.”) 62. “Equal Protection,” Legal Information Institute, accessed 14 Dec. 2016.

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majority so adamantly argued were entitled to equal –not superior– constitutional rights. V. Conclusion In outlining the two key understandings that have formed the airtight body of precedent favoring the rights of corporate actors to spend unlimited sums of money in elections, this paper questioned not the two understandings themselves but the constitutional linkages that apply these understandings to corporations’ constitutional rights. Three key factors support the claim that the Roberts Court was misguided in allowing unlimited corporate spending in elections in its Citizens United judgment. First, the special characteristics of corporations –namely their heavily regulated relationship with Congress and the states, their inclusion under the Commerce Clause, and their unique corporate structure– must be acknowledged by the Supreme Court as integral factors in determining the rights allotted to them. Second, these characteristics are sufficiently “special” to be reasonably applied to circumvent the general belief that the identity of the speaker cannot be used in denying fundamental rights and to deny corporations automatic claims to free speech within the electoral framework. Third, the misguided understanding by the majority in Citizens United that corporations would somehow be burdened by upholding §441b further demonstrates the flaws in the Court’s ruling, since upholding the statute –not striking it down– would provide equal protection of campaign finance law. Thus, by applying precedent, traditional understandings, and modern governmental interest in regulating elections, these three arguments cast doubt on the Court’s ruling unconstitutional of prohibitions on direct corporate spending in elections. Future courts would be extremely wise in appropriately re-evaluating the limitations, justifiability, and indelibility of corporate speech protections, particularly given corporations significant impact on effective American democratic governance and republican representation.

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Bibliography Batchis, Wayne. “Citizens United and the Paradox of Corporate Speech: From Freedom of Association to Freedom of the Association.” New York University Review of Law & Social Change 36.1 (2012): 5-56. Briffault, Richard. “Symposium: Citizens United v. Federal Election Commission: Implications for the American Electoral Process.” Cornell Journal of Law and Public Policy 20.571 (2011): 643-71. Columbia Law Review. “State Power to Tax Corporations under the Commerce Clause and the Fourteenth Amendment.” Columbia Law Re-view 25.3 (1925): 333-37. Federal Election Commission. “The FEC and the Federal Campaign Finance Law.” Federal Election Commission. Federal Election Commission, Jan. 2015. Web. 14 Dec. 2016. Galston, William. “Civil Society and the “Art of Association.” Journal of Democracy 11.1 (2000): 64-70. Garrett, Brandon L. “The Constitutional Standing of Corporations.” University of Pennsylvania Law Review 163.95 (2014): 95-164. Good, Chris. “Don’t Blame Citizens United.” The Atlantic, 20 Oct. 2010. Accessed 14 Dec. 2016. Gora, Joel M. “Free Speech, Fair Elections, and Campaign Finance Laws: Can They Co-Exist?” Howard Law Journal 56.3 (2013): 763-800. GVFJ. “Adam Winkler: Citizen United: Battle over the Constitutional Rights of Corporations.” Youtube. 20 Dec. 2012. Hasen, Richard L. “Citizens United and the Orphaned Antidistortion Rationale.” Georgia State University Law Review 27.4 (2011): 989-1005. Kang, Michael S. “After Citizens United.” Indiana Law Review 44 (2010): 243-54. Indiana Law Review. Leas, James Marc, and Rob Hager. “The Problem With Citizens United Is Not Corporate Personhood.” Truthout, 17 Jan. 2012. Accessed 14 Dec. 2016. Legal Information Institute. “Equal Protection.” Legal Information Institute. Accessed 14 Dec. 2016. Lessig, Lawrence. “Out-Posting Post.” In Citizens Divided: Campaign Finance Re-form and the Constitution, edited by Robert Post. Cambridge: Harvard University Press, 2014. Kindle. OECD. OECD Principles of Corporate Governance. Paris: OECD, 2004.

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Open Secrets. “Outside Spending: Frequently Asked Questions About 501(c)(4) Groups.” Accessed 14 Dec. 2016. The Pew Research Center. Obama’s Ratings Are Flat, Wall Street’s Are Abysmal. Washington, D.C.: The Pew Research Center, 12 Feb. 2010. Skolnik, Michael L. “Lipset’s Continental Divide and the Ideological Basis for Differences in Higher Education between Canada and United States.” The Canadian Journal of Higher Education 10.2 (1990): 81-93. Smith, Bradley. “Corporations Are People, Too.” NPR, 10 Sept. 2009. Accessed 14 Dec. 2016. Vandewalker, Ian. Election Spending 2014: Outside Spending in Senate Races Since Citizens United. New York: Brennan Center for Justice Analysis, 2015. Wilkinson, J. Harvie, III. “The Dimensions of American Constitutional Equality.” Law and Contemporary Problems 55.1 (1992): 235-51.

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Ideology or Instrument? The Role of Abortion in the Development and Enforcement of China’s One-Child Policy by Janna Bryson About the Author

Janna Bryson is a final year undergraduate student in Honours Political Science with minors in Women’s Studies and Management. Her academic interests include feminist political theory and the changing relationship between organizational tactics, ideology, and globalization. In addition to copy editing for The McGill Left Review, Janna is also an editor of Intersections: Journal of Gender, Feminist, and Social Justice Studies and The McGill Journal of Political Studies, and is currently Chair of the Daily Publications Society’s Board of Directors.

Abstract

The struggle for reproductive autonomy remains a salient feminist issue. However, as the frameworks provided by scholars such as Bahati Kuumba and Chandra Mohanty establish, the assumption that this problem can be defined by simple measures of abortion access fails to account for the complex ways in which women’s reproductive capacities are utilized by multiple systems of power. This paper aims to break past the “right to choose versus right to life” impasse that has come to define the public debate regarding abortion access. In doing so, it aims to answer the question: What kind of force – human rights, population policy, the market – is behind significant changes to abortion policy? The paper will situate this question within existing literature that defines abortion as an ideological issue of rights and morality, and scholarship that positions abortion as an instrument of population policy and market forces. Using the role of abortion in the development and implementation of China’s one-child policy as a case study, this paper will demonstrate that the presence of legal abortion in China does not adequately indicate reproductive autonomy or the influence of Chinese feminist ideology, but rather that China’s move to make abortion available was driven by the same economic forces that produced the one-child policy. The upshot of this finding is that the fight for reproductive autonomy may be one that needs to take place, at least in part, on the global economic front. Bryson

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The issue of abortion access inevitably yields contentious debate, which generally circles around the same moralistic impasse: the woman’s right to choose versus the fetus’s right to life. However, as has been argued by feminist scholars such as Bahati Kuumba1 or Chandra Mohanty,2 the assumption that this is the defining tension regarding women’s reproductive autonomy fails to account for the complex ways in which women’s reproductive capacities are utilized by other systems of power. In this paper, I want to break past the ‘classic’ impasse described above and engage critically with the framing of abortion policy. More specifically, I want to explore whether feminist and human rights justifications for abortion access actually determine policy, or whether the relationship between reproduction, population policy, and the market has more influence on policy change. In doing so, I hope to provide an answer to the question: What kind of force is behind significant changes to abortion policy? This paper is broken into two segments. The first segment will be a literature review of the theoretical accounts of abortion’s significance and its relationship to reproductive autonomy and policy. This review will show two broad tendencies in the literature. First, to frame abortion as an issue of rights and morality, often aligned with globalization. Second, to frame abortion as something that is instrumentalized by the state or market, often with imperialist intentions. I will highlight that the literature fails to account for the possibility that the justification of abortion policy may, in some cases, be purposefully misrepresentative of its actual intent. This disjuncture between how abortion is discussed and what purpose abortion policies serve leaves a gap in the literature. The second segment will be a case study of the role of abortion in the population planning of modern China, particularly with respect to the infamous ‘one-child’ policy. I will show that, although Chinese women played an active role in advocating for birth control and abortion access, these provisions did not become available until 1. Bahati Kuumba, “Population Policy in the Era of Globalisation: A Case of Reproductive Imperialism,” Agenda: Empowering Women for Gender Equity 48 (2001): 22–30. 2. Chandra Talpade Mohanty, “Under Western Eyes: Feminist Scholarship and Colonial Discourses,” Feminist Review 30, no. 1 (1998): 61-88.

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they were seen as beneficial to the state’s broader social planning. Abortion rates were closely tied to population planning, often to an extent that was coercive, and thus not motivated by feminist goals of bodily autonomy. I will then draw on Wright’s study of women working in an American factory in China to illustrate that the mechanisms used to enforce the one-child policy are easily coopted by the interests of international markets. This highlights the possibility of indirect reproductive imperialism even when population and abortion policy is determined by an autonomous state. Through this case study, I will show that the presence of legal abortion in China is not an adequate indicator of reproductive autonomy or the influence of Chinese feminist ideology, but rather indicates that China’s move to make abortion available was driven by the same economic forces that produced the one-child policy. Literature Review The organization of this literature review is informed by Hildebrandt’s study on the role of regime type (the presence of communist legacies, specifically) in determining abortion policy. According to Hildebrandt, the issue of abortion can be framed in four ways: first as a religious issue of life, death, and morality; second as an issue of public health; third as a feminist issue of bodily autonomy, and fourth as a controlling instrument of population policy.3 I want to split these framing methods into main two theoretical camps, by which I will attempt to organize the rest of this paper. I will label the first camp as the ideological camp, defined by the moral, political, or cultural explanations given in favour of or against abortion. This camp encompasses the religious and feminist framings, as both hinge on (albeit wildly different) conceptions rights and ethics. The second camp, which I will call the instrumental camp, looks at abortion policy in terms of its relationship to the goals of the state and/or markets. This camp encompasses both the public health and population policy framings, and, importantly, the possibility of an economic framing beyond the 3. Achim Hildebrandt, “What Shapes Abortion Law? – A Global Perspective,” Global Policy 6, no. 4 (2015): 419.

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policy-centric one suggested by Hildebrandt. I will also use a brief discussion of the relationship between abortion rights and property rights to demonstrate that, although the two theoretical camps place significance on very different factors and levels of analysis, they are both of direct relevance to abortion policy and do note merely talk past each other. The organization of these two camps is meant to situate abortion within contemporary debates about globalization and imperialism. Ideologically, globalization is often positioned in tandem with the promotion of liberal human rights, the reduction of the role of the state, and a broadly cosmopolitan outlook on global society. In these terms, abortion is an issue of human (or feminist) rights that will ideally spread globally as these rights become the international standard. Instrumentally, however, globalization can be framed as a particular expression of capitalist market forces;4 in this sense, as I will outline below, globalization begins to encroach on the territory of imperialism. With the division of these two camps, it becomes possible to map the significance of particular accounts of abortion on to ongoing debates about imperialism and globalization. Abortion Policy as the Site of Ideological Conflict For many, discussing the term “abortion” likely conjures a strong association with feminism and women’s rights, or with religion and morality. Rosalind Petchesky argues that the feminist view of reproductive freedom is based on two ideas. First, the notion that women must be able to control their own bodies and the reproductive capacities that come with them. Second, that insofar as women are responsible for childrearing they must also be responsible for decisions regarding contraception, abortion, and childbearing.5 From this perspective, the obstacle to reproductive freedom is people (and their policy) who assert that women do not have the right to control their own bodies or that this control should be limited, or 4. Leo Panitch and Sam Gindin, “Global Capitalism and American Empire,” Socialist Register 40 (2004): 12. 5. Rosalind Petchesky, Abortion and Woman’s Choice: The State, Sexuality, and Reproductive Freedom, Boston: Northeastern University Press, 1990, 2.

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that women should not be the sole reproductive decision-makers. Many authors argue that a general global shift toward the promotion and implementation of human rights is behind liberalizing abortion laws – such a shift is framed as an ideological blow against those who object to the principles discussed by Ptechesky. Perhaps the most obvious indicator of this trend is the position of the United Nations (UN) on abortion access. The UN first exhibited support for reproductive rights in 1968, stating that “parents have a basic human right to decide freely and responsibly on the number and spacing of their children and a right to adequate education and information in this respect.”6 While this statement was by no means an explicit endorsement of abortion, it laid the theoretical foundation for what today can clearly be seen as support for abortion as a human right. In particular, January 2016 saw a landmark case in which a 17-yearold Peruvian girl who was denied an abortion was compensated following a UN Human Rights Commission recommendation in 2005.7 Despite questions as to the effectiveness of the UN as an institution, the organization’s stance is supported by literature that defends the existence of a global trend toward abortion rights. According to Hildebrandt, more liberal (i.e. less restrictive) abortion laws are generally associated with higher levels of ‘modernity’ as per the Human Development Index and are “more politically globalized.”8 Begona et al. use a similar argument in their explanation of Mexico’s changing abortion laws, in which they argue that the government’s liberalized policies are at least in part the result of a global paradigm shift that has framed abortion as an issue of basic health, and that “this can be seen as a result of globalization: namely the global effort to define and guarantee human rights, and the incorporation of third generation human rights – reproductive 6. Lynn P. Freedman, and Stephen L. Isaacs, “Human Rights and Reproductive Choice,” Studies in Family Planning 24, no. 1 (1993): 20. 7. United Nations Human Rights, Office of the High Commissioner, “Peru Compensates Woman in Historic UN Human Rights Abortion Case,” News release, January 18, 2016. 8. Hildebrandt, 422.

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rights – in population policy.”9 According to these works, a global culture of support for the principles behind abortion rights is having material policy impact. Abortion and property rights: bridging ideology and instrument Justifications for policy are often – whether implicitly or explicitly – based on normative assumptions and theories regarding the nature of an ideal society. As outlined earlier, abortion has often been framed as an issue of human rights and bodily autonomy, particularly in states that align themselves with the liberal values of human rights championed by the UN and other international institutions. This position is generally taken for granted among feminists, and, by extension, among progressives who consider feminists to have made positive social contributions. However, this part of the literature largely fails to specify what type of rights abortion and abortion legislation encompasses. Is abortion as a right an issue of bodily autonomy? Property rights? Is the difference meaningful? According to Adrian Bardon, common justifications for a woman’s right to an abortion (perhaps inadvertently) rely on a conception of property rights that is incompatible with support for the welfare state, or, by extension, any collectivist or redistributive ideology and theory. Bardon uses the widely cited essay by Judith Thomson as an example. Thomson makes an analogy between the case of pregnancy resulting from rape and a person who has been kidnapped by music lovers to save the life of a famous violinist suffering from kidney failure by acting as a “living dialysis machine” for nine months.10 Thomson then argues that, despite the violinist’s right to life, the kidnapped person has a right to disconnect themselves from the violinist because she has not given consent for the use of her kidneys; the kidnapped person’s body is her own property, and her right to her own property cannot be trumped by the violinist’s right to life. Thus, a raped woman’s right to her own body as property similarly trumps 9. E. Begona, Bernal S., Sharon Bissel, and Ana Cortes, “Effects of Globalization on the Efforts to Decriminalize Abortion in Mexico,” Development 42, no. 4 (1999): 131. 10. Adrian Bardon, “Abortion, Property Rights, and the Welfare State,” Public Affairs Quarterly 12, no. 4 (1998): 370.

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the fetus’s right to life.11 Bardon notes the further development of this idea by Peter Singer to the case of any accidental pregnancy, adjusting the hypothetical case from kidnapping for dialysis use to accidentally being mistaken for a dialysis volunteer in a hospital. According to Singer, nine months of dialysis is too high a price to pay for such an accident, and thus nine months of pregnancy is too a high a price to pay for accidentally becoming pregnant.12 This conceptualization of a woman’s right to an abortion as an issue of property rights points to the compatibility of abortion as a right and the notion of women’s bodies as property. While Thomson presumably takes for granted that a woman’s body is her own property, the framework of property rights is predicated on the possibility of property exchange. If a woman’s body is something to be owned, what implications does this have for our understanding of reproduction and the mechanisms that control it? Abortion Policy as a State and Market Instrument The framing of abortion as an issue of property rights opens the door to explanations of abortion policy in terms of its relationship to the market – issues of how property is valued and exchanged, and what type of labour supports this system. A notion of women’s bodies as both the site of labour (re)production and a source of labour themselves suggests the possibility of abortion policy motivated by systems concerned with labour and consumption: the state and market. Insofar as abortion policy serves to control the reproductive capacity of women’s bodies, the needs of the state and the market can be understood as possible motivators for abortion policy. Maria Mies outlines a particularly compelling case for the role of women and reproduction in capitalism in her classic work Patriarchy and Accumulation on a World Scale. Mies argues that capitalism cannot function without a patriarchal base. For her, Marx’s concept of primitive accumulation – a prerequisite for the development of capitalism – is an ongoing process through which women’s unpaid 11. Ibid. 12. Ibid, 371.

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labour is exploited.13 Mies argues that “women’s first and last ‘means of production’ is their own body,”14 and in doing so highlights the exploitative nature of women’s reproductive labour. This is similarly supported by Kuumba, who argues that, “The development of ‘modern’ society, and its accumulated wealth, has been based on the exploitation of women’s unpaid labour and their ability to produce the next generation of workers.”15 This implies that market control of women’s reproductive capacity is equally as exploitative as state control in that both forms exploit the (unpaid) reproductive labour of women. What would this mean for abortion policy? The answer to this question, for some, is that abortion and reproductive policy in general, despite feminist justifications, can end up being the site of imperialism. In her widely-cited essay “Under Western Eyes,” Chandra Mohanty argues that much feminist scholarship itself actually has a ‘colonizing’ effect on non-Western women whose interests it purports to serve, and that, in assuming the experience and priorities of Western women to be universal, Western feminist theorists discursively construct a homogenous and dominated “Third World woman.”16 She argues, “[i]t is in this process of discursive homogenization and systematization of the oppression of women in the Third World that power is exercised in much of recent Western feminist discourse, and this power needs to be defined and named.”17 So, according to Mohanty, the fact that justifications of or discourse surrounding particular abortion policies is ‘feminist’ does not necessarily mean that the policies in question are in the interest of all women, nor that they are in any way reflective of the needs of all women. Kuumba makes a similar claim to Mohanty regarding Western feminism, arguing that, “[t]o myopically focus on the isolated question of the right to abortion, as has the middle-class feminist movement of the West or fertility regulation as international 13. Maria Mies, Patriarchy and Accumulation on a World Scale: Women in the International Division of Labour, London: Zed Books, 2014, 165. 14. Ibid, 169. 15. Kuumba, 23. 16. Mohanty, 19. 17. Ibid, 19-20.

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development agencies have, overlooks the larger concerns.”18 However, as a closer reading of Kuumba reveals, she is not only concerned with a discursive colonization. Rather, Kuumba suggests that the “larger concerns” missed by middle-class feminists are ones of very material imperialism, wherein women in the Global South are subjected to either forced methods of birth control and sterilization, or, conversely, forcibly used for ‘breeding.’19 For Kuumba, feminist justifications for abortion policy are not problematic because they prioritize reproductive freedom above other issues more relevant to women in the Global South, but rather because they mistakenly (or perhaps maliciously) frame access to abortion as the epitome of reproductive freedom without accounting for the particular ways in which some women – particularly African women and women in the Global south – have their reproductive freedom undermined differently. According to Bovill and Leppard, this undermining of reproductive freedom can be attributed to large bilateral and multinational companies, many of which specialize in pharmaceuticals and medical supplies related to birth control and termination. The authors argue that such companies have remained leaders in population control across the globe, which: “[…] has led to a uniformity of approach [to population control] that perpetuates concerns about population growth and emphasises the important role of the state in fertility control. These approaches assume that women with fewer children can participate in markets, thereby contributing more to developing nations’ productivity and facilitating economic growth. In this context, family planning is framed as a means to maximising economic ends.”20 This evidence suggests that the interests of international 18. Kuumba, 28. 19. Ibid, 24. 20. Catherine Bovill and Margaret Leppard, “Population Policies and Education: Exploring the Contradictions of Neo-liberal Globalisation,” Globalisation, Societies and Education 4, no. 3 (2006): 397.

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capitalist markets and the interests and policies of individual states are not mutually exclusive. Insofar as a state – particularly a ‘developing’ state in the Global South – is interested in maximising market participation, external influence over and provisions for population control may be welcomed. This market influence, according to some researchers, can develop into something of a ‘Catch-22’ for states that rely on external funding or foreign direct investment (FDI). As Bélanger and Flynn illustrate, today’s post-socialist countries such as China, Cuba, and Vietnam have faced pressures to lower abortion rates lest they forego American funding.21 If outside state influence is driven by market needs – as Panitch and Gindin argue is the case of what they call the “American Empire”22 – how can this be reconciled with Bovill and Leppard’s assertion that population control, and thus abortion, promotes market growth? There are two possible answers. The first is provided later in Bovill and Leppard’s analysis; they argue that “neo-liberal globalisation demonstrates its inherent contradictions within the population field” by promoting the use of methods and services that are the most marketable among state, medical, and religious establishments.23 If population control is meant, in part, to “empower” women in the market, but the market is driven in part by religious or political institutions that cannot publicly support certain kinds of population control (abortion), then the types of population control mechanisms used are reflective of those driving the market, not of the needs of policymakers attempting to administer any form of population control. The second potential answer, which I will explore below, rests in a gap between the two camps of literature I have outlined thus far. Theoretical Opening: Justification versus Intent So far, I have positioned the ‘ideological camp’ and the ‘instrumental camp’ as opposed. This reflects the general tone of the literature: 21. D. Bélangerand A Flynn, “The Persistence of Induced Abortion in Cuba. Exploring the Notion of an “Abortion Culture,”” Studies in Family Planning 40, no. 1 (2009): 14. 22. Panitch, 35. 23. Bovill, 403.

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abortion is generally either a debate over individual bodily autonomy (whether the mother’s or the fetus’), or is indicative of an issue in population policy. However, I think this dichotomy also reflects a gap in the literature: Is it fair to assume that the public or political justification of a particular policy is necessarily reflective of the policy’s actual intent? Indeed, regardless of the moral or feminist justification for a particular abortion policy, it is always developed by the state, whose interests are inextricable from its own economic needs. This disconnect between how abortion is discussed and the purpose of abortion policy is evident in the case of China’s one-child policy and general population planning schema. Case Study: Abortion and China’s One-Child Policy China’s family planning policy is generally thought of in terms of the infamous “one-child policy,” which restricted the vast majority of couples to one biological child; however, China’s family planning efforts are quite comprehensive and have historical roots that reach back beyond the implementation of the one-child policy. White notes that, particularly in the early days of the Chinese Communist Party (CCP), women were at the forefront of discussions regarding birth control and family planning as they had been promised sex equality as valuable members of the communist revolution.24 In the 1950s, women in the party fought to reverse early pro-natalist policy that severely restricted access to birth control and abortion after struggling throughout the 1930s and 40s to bring contraception access onto the CCP agenda.25 From this perspective, access to contraception and abortion in China was at least in part motivated by feminist concerns, or by concern among women about their ability to be included in the revolution’s promise of liberation. However, the efforts of CCP women to promote access to contraceptive measures were only able to gain limited traction without broader political justification. Until the late 1950s, Mao did not (at least publicly) acknowledge population growth as a potential 24. Tyrene White, “The Origins of China’s Birth Planning Policy,” In Engendering China: Women, Culture, and the State, edited by Christina K. Gilmartin, Gail Hershatter, Lisa Rofel, and Tyrene White, Cambridge: Harvard University Press, 1994, 253. 25. Ibid.

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problem, arguing against Western skeptics who doubted China’s ability to feed its people and instead positioning a large population as “energy for the socialist revolution and construction.”26 While some women were able to access abortion under specific circumstances, such as already having more than six children, for the most part such measures were not accessible on a mass scale, lest anyone insinuate that that the state needed abortion to be used on a mass scale for population management. Chinese policy in the early 1950s was thus left in a limbo between its former pro-natalist orientation and the anti-natalist days on the horizon. In order to gain meaningful access to abortion and contraceptives, female cadres had to give their goal a new political framing. White argues: “Chinese women were not simply the objects of a changing state attitude toward the need for birth control; their need to link up policy preferences to a defensible political argument produced unintended consequences – new and stricter forms of state control.”27 Thus, while Chinese women did advance their cause from a position centered on feminist rights and liberation, this justification does not appear to have been the motivating factor behind policy change. Rather, it was Mao’s efforts to sharpen and further bureaucratize state planning that put the prospect of comprehensive access to (and use of) abortion and contraceptives on the table. White quotes a transcript of Mao speaking in 1957, which reads, “I think humanity is most inept at managing itself. It has plans for industrial production, the production of textiles, the production of household goods, the production of steel; [but] it does not have plans for the production of humans. This is anarchism, no government, no organization, no rules.”28 This change from Mao’s initial characterization of the burgeoning Chinese population as full of revolutionary potential was less an ideological shift on his part and more of an adjustment to changing socio-economic circumstances; population growth was continuing rapidly alongside ambitious plans for development, but this progress sat in tension with very real short-term dilemmas of 26. Jing-Bao Nie, “The Problem of Coerced Abortion in China and Related Ethical Issues,” Cambridge Quarterly of Healthcare Ethics 8, no. 4 (1999): 463. 27. White, 252. 28. Ibid, 270.

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unprecedented urban growth, tight food supply, and increasing tensions in the political climate of rural China.29 Access to abortion and contraceptives was to be contingent on state population control, despite an initial lack of public recognition of this purpose. From Anti-Natalism to the One-Child Policy The 1960s and 1970s saw a transition from China’s initial pronatalist approach to population policy to a vaguely anti-natalist tendency that culminated in the implementation of the one-child policy in 1979. One highly influential component of this shift was the legitimization of contraceptive education among local government offices. Previously, due to this educational program’s lack of connection with the CCP’s broader state planning goals, lower-level officials had neglected to obtain and provide much of the (technically “available”) reproductive information and services to people in their communities.30 This education was initially framed as the wan, xi, shao policy: “one [child] is not too few, two are ideal, three is too many.”31 According to Tien (1987), it was this policy

Figure 1: Abortion in China 1971-2005 (Zheng et al. 2012:72). 29. Ibid, 262. 30. Ibid, 272. 31. H. Yuan Tien, “Abortion in China: Incidence and Implications,” Modern China 13, no. 4 (1987): 442.

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that contributed much of the initial population stagnation that is commonly misattributed to the implementation of the onechild policy.32 Compatibility between policy justification and effect appears to have been important in how effectively it was enforced. Indeed, in Figure 1, it is clear that a slowed population rate began in China prior to 1979. However, the 1979 spike in abortion rates visible in Figure 1 coincides with the implementation of the one-child policy and suggests, in my view, that the target-oriented goals of this policy made abortion particularly useful due to its precision. As White carefully explains: The regime would apply to birth control goals the same target-oriented approach that was the standard tool of policy implementation in the material sector [...]. With population planning thus linked to the primary obligation of the socialist state–the production, allocation, and distribution of material goods–childbearing became subject to those same mechanisms of depersonalized centralized planning. Under this rationale, women were production instruments subject to the structure of state monopoly and supply, and children became a planned product of the socialist state.33 Here we can see the instrumentalization of women’s bodies in the interest of the state: the true purpose of the policy. This is compatible with the ideological justification of abortion as an issue of rights only if we take Bardon’s conception of abortion as an issue of property rights and assume women’s bodies, in this case, to be the property of the state. Such a framing, however, would fail to account for the spirit of Bardon’s (and any feminist’s) argument for abortion that relies on a prioritization of bodily autonomy. Bodily autonomy was certainly not relevant to the enforcement of the one-child policy; Nie reveals that many women who attempted and ultimately failed 32. Ibid, 442-443. 33. White, 276, emphasis mine.

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to hide unlawful additional pregnancies were coerced to abort.34 While official documents stated that abortion and family planning procedures always took place “under the principle of voluntaries on the part of the masses with state guidance,” the fact that failure to comply with the one-child policy could result in loss of employment, housing, or other basic needs made a certain level of coercion inextricable from the enforcement of the policy.35 Beyond Population Planning: Market Influence The instrumental theorization of abortion policy thus appears to hold more weight than the ideological rights-based one in the case of China. This framing also allows for an account of the role of imperialism in more contemporary iterations of the policy (at least until its 2015 liberalization). Wright’s work on the peculiar, paternalistic workplace dynamic of an American-based corporation’s factory in Dongguan, dubbed AOTW, shows just how compatible state population control can be with the market’s need for efficient labour. In the AOTW factory, managers took on a role as “factory fathers” to their female “daughter” employees. According to Wright, “this kinship discourse [provided] a localized idiom for generating a global supply of disposable labor,”36 in that managers were able to monitor closely their female employees reproductive cycles and sexual behaviour (going so far as to provide contraceptive pills) in the name of protecting their integrity while also ensuring that they were not at risk of becoming pregnant and being rendered useless to the factory. This practice fit seamlessly with local government pressure to enforce the one-child policy and monitor women for “illegal” pregnancies. One manager “worked with some local officials to arrange regular exams in Dongguan so that the workers would not have to leave the municipality.”37 In the AOTW factory, state and market control of female reproduction is effectively interchangeable.   This congruence holds even in today’s context of a two-child 34. Nie, 464. 35. Ibid, 466. 36. Melissa W. Wright, Disposable Women and Other Myths of Global Capitalism, New York: Routledge, 2006, 27. 37. Wright, 39.

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allowance. Wright’s study was conducted in the 1990s, during a period of time when the demographics of Chinese women who underwent an abortion was shifting dramatically. In the 1970s and early days of the one-child policy in 1980s, women who got abortions tended to be older rural women who already had the maximum number of children; toward the 1990s, this shifted to young, urban women postponing their child rearing days being the most common abortion recipients.38 Zheng argues that this shift indicates an improved focus of the Chinese family planning program on individual rights and contraceptive access;39 thus, abortion is more often used as a means of individual family and career planning than of state population control. However, if we consider the necessity for Wright’s “factory daughters” to delay reproduction so as to maintain their value as productive factory labourers, then it appears that, to an extent, state control has been replaced with market control. Concluding Implications In this paper, I have attempted to address the question of what kind of force drives significant changes to abortion policy. The literature on the subject tends to frame abortion either as an ideological issue of rights and morality, or as an instrument of population or labour control by the state or market. These two camps highlighted a lack of attention given to the possibility that the justification for a given abortion policy may be intentionally disjointed from the policy’s intent. I used the case study of abortion and China’s one-child policy to address this shortcoming. By exploring both the state’s role in developing population control policy and the way in which international markets can influence and be influenced by said policy, I established that the presence of legal abortion in China cannot be taken as an indicator of reproductive autonomy for Chinese women or the influence of Chinese feminist ideology, but rather that China’s move to make abortion available was driven by economic forces. 38. Xiaoying Zheng, Lihua Pang, Lingfan Tan, Lei Zhang, Yukun Hu, and Jihong Wei, “The changing patterns of abortion among married women in China, 19842005,” European Journal of Obstetrics & Gynecology and Reproductive Biology 166, no. 1 (2012): 74. 39. Ibid.

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Admittedly, the arguments and evidence I have presented in this paper cannot necessarily be generalized to any state. However, the case of China’s population planning is particularly illustrative in that this policy was situated within an explicitly articulated comprehensive state plan; thus, there is less guesswork involved in determining the purpose of policy. The inconsistencies between policy justification and purpose I have illuminated in the Chinese case can serve as starting points for further inquiry. What is the difference between lip service and commitment to women’s liberation? For what economic reasons might a state choose to justify policy decisions morally or ideologically? In the context of the fight for reproductive freedom, which is as fraught now as ever, the prospect of abortion access being contingent on economic considerations has critical implications for where this fight should be located. Bibliography Bardon, Adrian. “Abortion, Property Rights, and the Welfare State.” Public Affairs Quarterly 12, no. 4 (1998): 369-81. Begona, E., Bernal S., Sharon Bissel, and Ana Cortes. “Effects of Globalization on the Efforts to Decriminalize Abortion in Mexico.” Development 42, no. 4 (1999): 130-33. Bélanger, D. and A Flynn. “The Persistence of Induced Abortion in Cuba. Exploring the Notion of an “Abortion Culture.”” Studies in Family Planning 40, no. 1 (2009): 13–26. Bovill, Catherine, and Margaret Leppard. “Population Policies and Education: Exploring the Contradictions of Neo-liberal Globalisation.” Globalisa-tion, Societies and Education 4, no. 3 (2006): 393-414. Freedman, Lynn P., and Stephen L. Isaacs. “Human Rights and Reproductive Choice.” Studies in Family Planning 24, no. 1 (1993): 18-30. doi:10.2307/2939211. Hildebrandt, Achim. “What Shapes Abortion Law? – A Global Perspective.” Global Policy 6, no. 4 (2015): 418–28. doi:10.1111/1758-5899.12208. Kuumba, Bahati. “Population Policy in the Era of Globalisation: A Case of Reproductive Imperialism.” Agenda: Empowering Women for Gender Equity 48 (2001): 22–30.

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Mies, Maria. Patriarchy and Accumulation on a World Scale: Women in the International Division of Labour. London: Zed Books, 2014. Mohanty, Chandra Talpade. “Under Western Eyes: Feminist Scholarship and Colonial Discourses.” Feminist Review 30, no. 1 (1998): 61-88. doi:10.2307/1395054. Nie, Jing-Bao. “The Problem of Coerced Abortion in China and Related Ethical Issues.” Cambridge Quarterly of Healthcare Ethics 8, no. 4 (1999): 463-75. Panitch, Leo, and Sam Gindin. “Global Capitalism and American Empire.” Socialist Register 40 (2004): 1-42. Petchesky, Rosalind. Abortion and Woman’s Choice: The State, Sexuality, and Reproductive Freedom. Boston: Northeastern University Press, 1990. Tien, H. Yuan. “Abortion in China: Incidence and Implications.” Modern China 13, no. 4 (1987): 441-68. 10.1177/009770048701300403. United Nations Human Rights. Office of the High Commissioner. “Peru Compensates Woman in Historic UN Human Rights Abortion Case.” News re-lease, January 18, 2016. White, Tyrene. “The Origins of China’s Birth Planning Policy.” In Engendering Wright, Melissa W. Disposable Women and Other Myths of Global Capitalism. New York: Routledge, 2006. Zheng, Xiaoying, Lihua Pang, Lingfan Tan, Lei Zhang, Yukun Hu, and Jihong Wei. “The changing patterns of abortion among married women in China, 1984-2005.” European Journal of Obstetrics & Gynecology and Reproductive Biology 166, no. 1 (2012): 70-75.

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The Anc, Public Service Delivery and the Future of Governmental Accountability in South Africa’s Increasingly Competitive Democracy by Benjamin Aloi About the Author

Ben is a U2 student in Honours International Development with minors in Political Science and French Language & Literature. During his time at McGill, Ben has developed a deep interest in Sub-Saharan Africa, IsraelPalestine, Québec politics, international political economy (IPE), global institution-building, trade agreements, public policy and urban planning. He was also recently named Editor-in-Chief of the McGill International Review (MIR) for 2017-18.

Abstract

The ANC, Public Service Delivery and the Future of Governmental Accountability in South Africa’s Increasingly Competitive Democracy” critically assesses the ruling African National Congress’ record in improving local government capacity and provision of key social services, including water & sanitation services and lifesaving HIV/AIDS treatment in a country that at one point had the highest number of afflicted individuals in Africa. Moreover, the concurrent pressure from both domestic political forces and global capital led local government to privatize, completely or in part, many public utilities. This has severely diminished many South Africans’ ability to afford basic services like running water and electricity, aggravating apartheid-era legacies of extreme living standards and income inequalities.

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Introduction With the formal end of apartheid in 1994 and the first non-racial elections in the country’s chequered history, broad cross-sections of South African society projected their unique hopes and aspirations onto Mandela’s Government of National Unity. The government was itself a shaky interim agreement between the ruling African National Congress (ANC) and various political organizations both within (South African Communist Party and Congress of South African Trade Unions) and outside (Inkatha Freedom Party and the National Party) their Tripartite Alliance. In many ways, the ANC’s rapid evolution from a liberation movement to an institutionalized mass political party cannot be adequately understood as a mere democratic transition away from authoritarianism, but as one of the last historical cases in the global decolonization paradigm. The ANC, through both its history of struggle against the apartheid regime and its radical re-conception of South African national identity, quite purposefully portrayed its political project as a definitive break from the past. Nevertheless, a fundamental contradiction persists between the ANC’s generally successful transition from liberation movement to mass political party in the early 1990s and its increasingly-insulated contemporary elites, such that the organization’s former bulwarks of broad societal support unravel more and more with each election cycle. Indeed, ahead of the 2016 local government elections (LGEs), the ANC found itself in the unprecedented position of having to actually win back votes—although widespread campaigns to do so were largely limited to its Gauteng provincial chapter. The national party leadership, meanwhile, still desperately clings to its liberation brand, failing to address the endemic corruption within its ranks and uncritically promoting Zuma’s image and policies in the face of staggering public disillusionment. Moreover, Zuma loyalists have not taken kindly to the Gauteng ANC’s rising autonomy, particularly its efforts to distance itself from national party leadership through an emphasis on Third Way governance, transparency, and zero tolerance for corruption. This experiment has manifested in various disputes with the national ANC, notably over the right to appoint its own choice, David Makhura, as provincial Premier in 2014. 70

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Still, against all odds, the Gauteng ANC’s gamble has generally paid off. As The Daily Maverick’s Stephen Grootes writes, “Makhura and his administration were well aware that defeat in 2019 was staring them in the face. If you have won just 53.5% of the vote [the ANC’s 2014 share of the Gauteng legislature, compared with over 62% of the National Assembly], you tend to start planning for the future.”1 In addition to Makhura’s major provincial reforms, Johannesburg mayor Parks Tau’s administration has worked tirelessly to develop public transportation, implement environmental sustainability initiatives, diversify the city economy, incentivize investment in the CBD, promote neighbourhood-based service delivery, tackle corruption, and expand city-wide access to lifesaving HIV/AIDS treatment. All of these efforts likely contributed to the ANC’s ability to salvage Johannesburg in the 2016 local government elections, amidst the growing tide of Democratic Alliance (DA) support in South Africa’s metropolitan municipalities.2 Yet, as welcome as these local reforms are, they do not address the underlying problem of intergovernmental disconnect and widespread disparities in social service delivery. At an intraparty level, the Gauteng ANC’s program of provincial differentiation epitomizes a watershed moment in the former liberation movement’s history, as it struggles to build spatially integrated, responsive municipalities in accordance with national policy. Interestingly, in South Africa, municipalities carry the primary burden of socioeconomic development and service delivery within their jurisdiction, per their 1996 constitutional mandate.3 This makes the country’s post-apartheid record of local government efficiency extremely uneven, as municipalities prioritizing civic engagement and meritocratic bureaucracies coexist—often in the same province or region—with municipalities plagued by service backlogs and insufficient financial resources, to say nothing of municipalities that have abdicated their constitutional responsibilities altogether 1. Stephen Grootes, “LGE 2016: ANC failed in Gauteng, and the Wrong People Will be Blamed,” The Daily Maverick. 6 August 2016. 2. Electoral Commission of South Africa, “2016 Municipal Elections.” 3. Republic of South Africa. Constitution of the Republic of South Africa, 1996, 151-164.

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in favour of privatization schemes. Of course, apartheid’s legacy of official neglect towards African communities—denied residence within the Republic, “Africans were supposedly citizens of the Bantustans and thus ‘temporary sojourners’ in the urban areas”— structured municipal organization along stratified, racial lines.4 Even commendable post-apartheid reforms to integrate poor and wealthy communities within the same municipal tax base did not completely solve this problem. Thus, inadequate service delivery is particularly astute in densely populated peripheral urban areas (often informal settlements and slums) and rural municipalities, both overwhelmingly comprised of black Africans.5 Here, demand for technical expertise in project implementation far exceeds the available supply of urban planners and finance managers. This shortage of skilled professionals in municipal employment is, of course, a national problem, but the uneven geographic dispersion of technical expertise across South Africa has forced cash-strapped local governments to essentially compete for outside staff.6 Lacking any proximal or educational advantages over large metropolitan municipalities, remote areas generally must compete on salary alone, severely limiting the number of skilled professionals they can afford to employ. Perhaps most discouragingly, public service as a whole has never proven a lucrative venture in South Africa, even in relatively-wealthy metropolitan governments like Cape Town and Tshwane (Pretoria and surrounding towns). It is little wonder, then, that the small proportion of South Africans able to attend higher educational institutions (about 19%) is most often drawn to more lucrative professions in STEM fields.7 This fact makes the overdue ambitions of the ANC’s 2016 LGE 4. Mcebisi Ndeletyana and James Muzondidya, “Reviewing Muncipal Capacity in the Context of Local Government Reform: 1994-2009,” in South African Governance in Review: Anti-Corruption, Local Government, Traditional Leadership by Paula Jackson et al., 23. 5. Ibid, 26. 6. Ibid, 28. 7. Council on Higher Education, South African Higher Education Reviewed: Two Decades of Democracy (Pretoria: Council on Higher Education, 2016), 6.

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manifesto—“building capabilities by attracting a highly-skilled and professional local government administration”8; “ensuring that municipal programmes strengthen the social fabric of our communities”9; “promoting education and training of municipal officials through skills development initiatives”10—ring somewhat hollow absent existing infrastructure upon which to implement them. Moreover, there is a distinct urban bias to the ANC’s municipal objectives, not only because the party fears losing further ground in the cities to the DA but also because South Africa’s eight metropolitan municipalities represent arguably the most realistic jurisdictions within which to develop coordinated strategies and mutually-reinforcing institutions for better service delivery. The sheer size and scope of the country’s peripheral city or rural governments—226 local municipalities classified into four categories across nine provinces with their own legislatures—creates an institutional dilemma wherein rural municipalities’ nearly total dependence on national government transfers coexists with decentralized development priorities and unclearly delineated powers for so-called “traditional” authorities. In addressing these contemporaneous challenges of municipal governance in post-apartheid South Africa, the focus of this paper will be threefold: (1) a brief examination of the ANC Reconstruction and Development Programme’s ideological underpinnings and concrete policy proposals; (2) an analysis of how and why the Programme’s ambitious goals for greater governmental accountability and public service delivery were woefully unmet or even abandoned, highlighting two public entities in particular—water & sanitation services and HIV/AIDS treatment and prevention—where privatization and/or weak municipal capacity have eviscerated marginalized communities; and (3) South Africa’s outlook for effective and transparent service delivery in an increasingly competitive multi-party era. From the lessons and legacies permeating all three sections, I argue the following: In transitioning from a liberation movement 8. African National Congress (ANC), 2016 Local Government Elections Manifesto, 16 April 2016, 30. 9. Ibid, 29. 10. Ibid, 20.

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to a mass political party enjoying broad cross-sections of societal support, the ANC was forced to grapple with the harsh realities of radical government transformation in a global era where municipal capacity, particularly to meet the needs of a society’s most disadvantaged members, is simultaneously undermined by the deregulatory demands of global capital and factionalist/nationalist demands for greater political decentralization. (1) Ideological Underpinnings of the ANC’s Post-Apartheid Policy Framework for Local Government While acknowledging the Freedom Charter’s historical stature as the central document of ANC thought, its hotly-contested meanings and implications leave a wide-open ownership vacuum that countless groups and ideological factions in South African society have attempted to fill over the course of 60-plus years. In some ways, the ambiguity of the Charter is its genius, allowing nearly any South African to conceivably read their hopes and aspirations into it. One would be hard pressed, however, to ascertain some legacy of the Charter’s idealism—e.g. “Free medical care and hospitalization shall be provided for all…Slums shall be demolished, and new suburbs built where all have transport, roads, lighting…”11—within the ANC’s current approach to local government. One particularly relevant perspective on the Freedom Charter’s tangible implications for governance comes not from post-apartheid political analyses but from a New Age piece, “Does the Freedom Charter Mean Socialism?,” published just two years after the 1955 Congress of the People. In it, the author counters contemporary fears surrounding the Charter’s articulation of socialist objectives with an acute understanding of the non-European’s exclusion from his country’s wealth and socioeconomic opportunities, calling therein for a radical restructuring of the entire state apparatus: “If tomorrow every discriminatory law on the statute book were repealed, but the mineral wealth, monopoly industry and financial empires were not transferred to the ownership of the people as a 11. Ben Turok, “The Freedom Charter,” in Readings in the ANC Tradition, Volume I: Policy and Praxis (Auckland Park: Jacana Media Ltd, 2011), 35.

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whole, the system of White superiority would in its basic essential be perpetuated for many generations.”12 Nevertheless, the author intriguingly rejects the very notion— one which the South African government and other U.S.-aligned powers repeatedly employed to delegitimize the ANC and its leading figures throughout the 1950s and ‘60s—that the Freedom Charter’s aims are tantamount to socialism, despite socialists and communists’ considerable input into the writing of the document. This disavowal on the part of the author, who remains overwhelmingly partial to the liberation struggle’s concerns, is exemplary of a worn and tired accusation that Mandela and other leading ANC figures had to refute over and over again, forcing them to oscillate between outright rejection of any communist affiliation whatsoever and delicate acknowledgment of their movements’ common goals. Efforts to tease out the Charter’s original intent thereby became increasingly complicated. For these reasons, I maintain the Freedom Charter’s general lack of utility in helping one conceptualize the ANC’s post-apartheid local government policies from an ideological standpoint. By contrast, the 1994 Reconstruction and Development Programme (RDP)—implemented by the Tripartite Alliance on the honeymoon of their electoral victory—was billed as an “integrated, coherent socioeconomic policy framework”13 to address the horrific legacies of apartheid and build responsive, non-racial political institutions for years to come. It does not view growth and development as mutually exclusive phenomena, but as complementary components of longterm reconstruction and progress. Indeed, the RDP’s overriding feature is arguably its emphasis on the inherent interdependence of various development objectives, at every level of government. “The key to this link,” the ANC argues, “is an infrastructural programme that will provide access to modern and effective services like electricity, water, telecommunications, transport, health, education and training for all our people.”14 12. Ibid, “Does the Freedom Charter Mean Socialism?,” 38. 13. African National Congress (ANC), The Reconstruction and Development Programme: A Policy Framework (Johannesburg: Umanyano Publications, 1994), 1.1.1. 14. Ibid, 1.3.6.

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It is worth noting that the RDP was born during a particular period of the 1990s when the field of international development, as a whole, was shifting from income-based and econometric measures of development to a more multidimensional approach stressing the realization of what Nobel Laureate Amartya Sen referred to as human “capabilities.”15 The language used by the ANC in the RDP, particularly in its section, “Developing Our Human Resources,” is strikingly reminiscent of Sen’s work on positive freedom, emphasizing maximization of human potential and people’s socioeconomic ability to actually exercise their legal rights.16 While this multidimensional approach to development is certainly laudable and while most of the RDP’s failings can be attributed to governmental incompletion of its objectives rather than design flaws within the program itself, there are nonetheless several caveats to highlight here. First and foremost, comprehensive policy frameworks, touching nearly all sectors of society and levels of government, are inevitably broad. This is not necessarily a criticism, as any program of radical reconstruction must be sufficiently flexible for disparate regional contexts. However, if an entire political system undergoes a profound transformation without adequately addressing the limitations of its predecessor, this transformation can merely resize rather than restructure civic institutions. Simply put, apartheid infrastructure was—by design—built to accommodate and enrich just a small white minority, whereas government expenditure on the African majority primarily took the form of repressive security measures, migrant labour transportation, and transfer payments to the Bantustans. The RDP foreshadows this institutional restraint with a formidable warning about the structural challenges impeding its own implementation: “…because it involves processes and forms of participation by organisations outside government that are very different to the old apartheid order…This requires substantial restructuring 15. Amartya Sen, “Human Rights and Capabilities.” Journal of Human Development 6 (2), 151-166. 16. African National Congress (ANC), The Reconstruction and Development Programme: A Policy Framework (Johannesburg: Umanyano Publications, 1994), 3.2.1-3.2.3.

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of present planning processes and a rationalisation of the complex, racist and fragmented structures that exist.”17 Unfortunately, there is little empirical evidence to suggest this “substantial restructuring”actually occurred, as the newly-elected ANC was immediately confronted with the overwhelming task of rescaling government capacity to equitably represent over 40 million multiracial, rather than 5 million white, citizens. Restitution and redistribution, particularly regarding land reform, thus took an indefinite backseat to the arduous construction of an effective bureaucracy. Secondly, and perhaps most importantly, the RDP is a partisan document. Many of its stated concerns are evidently universal and, nowadays, the Democratic Alliance’s (DA) and even Economic Freedom Fighters’ (EFF) party platforms would be quite compatible with the program’s overarching vision. Nevertheless, continued ANC rule, at every level of government, is implicitly understood as the instrumental variable in the RDP’s rate of success. The document is an inescapable campaigning tool of the 1994 elections, in which ANC dominance was hardly ever in question. Moreover, the ANC to this day self-consciously maintains its distinct identity as “the legitimate representative of the people” and “the truthful and rightful custodian” of South Africa’s liberation legacy.18 This narrative, incorporating elements of both populism and socialist internal party discipline, enjoys a considerable amount of traction across South African society that no opposition party has ever come close to emulating. In fact, the ANC’s level of popular mobilization is so strong that millions of poor South Africans—whose material living standards are, by and large, worse than under apartheid— paradoxically protest elected government while continuing to vote for the party at the ballot box. This is often a perplexing phenomenon for outside observers. In most liberal democracies around the world, free and fair elections 17. Ibid, 1.4.21-1.4.22. 18. Susan Booysen, The African National Congress and the Regeneration of Political Power (Johannesburg: Wits University Press, 2011), 86.

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act as the most viable check on political authority and continued dominance by one party. In South Africa, on the other hand, broad cross-sections of society view ANC party policy as synonymous with national policy and thus organize accordingly. This is by no means an uncritical approach to direct political participation. As Susan Booysen explains, “…[community] protest has frequently been used to pressure the ANC government to do more, to deliver on election promises, to replace local leaders… South Africans have crafted protest to supplement the vote, not to substitute for voting.”19 In a political system where one party alone has the institutional capacity to feasibly implement wide-ranging structural change, it is little wonder why most of the electorate considers that party its most effective vehicle for translating collective concerns into tangible policies. Up until very recently, this implicitly understood system of protest as a form of collective bargaining boded well for the ANC’s electoral prospects, and despite all suggestions to the contrary, the majority of South Africans maintained the country was moving in the right direction.20 This convention of slow but steady progress, with cyclical patterns of intensifying popular demands and hardwon concessions, under the ANC’s direction, has proven untenable in the long run. Effective cooperation between national, provincial, and local government—one of the RDP’s foundations—has been under threat for decades, stemming from the National Party and Inkatha Freedom Party’s fierce defence of greater autonomy for the provinces during 1993 constitutional negotiations with the ANC.21 However, the results of the genuinely competitive 2016 local government elections foreshadow a not-so-distant future in South Africa where opposition parties consolidate their regional support and build competing spheres of political influence. The RDP does not outline any potential strategy for the ANC to adapt to such a future, and therein lies its greatest design flaw: the increasingly19. Ibid, 126. 20. Ibid, 94. 21. Helen Zille, “The provinces as a bulwark of democracy,” in Future Inheritance: Building State Capacity in Democratic South Africa, ed. Daniel Plaatjies (Auckland Park: Jacana Media Ltd, 2011), 109.

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likely scenario that the political practicality of its comprehensive policy framework may fall apart entirely as local governments, the relevant unit of direct service delivery, are disconnected from national party structures. (2) Case Studies in the Privatization of Service Delivery One of the first policy manifestations of the RDP was a nationwide cost recovery mechanism called Operation Masakhane (“let’s build together”), wherein municipal residents themselves were charged with the collective imperative to develop local government capacity. This communitarian approach to service delivery—in line with the ANC’s self-conscious rebranding as a mass political party and people’s movement with an unbreakable connection to its constituents—understandably attempted to construct a strong sense of civic duty alongside more responsive political institutions. In Operation Masakhane, establishing government legitimacy was treated as absolutely essential to ending the culture of nonpayment that prevailed under apartheid; indeed, the ANC itself had actively endeavoured to erode the apartheid regime’s infrastructural capabilities by boycotting services and taxation schemes associated with unrepresentative black local authorities and Bantustans.22 This was certainly an effective tactic of struggle, but once elected to power, party leaders were forced to signal an about-face on the “crisis of legitimacy” plaguing municipalities, regardless of whether or not substantive changes on the ground had actually occurred after April 1994.23 Initial optimism surrounding the initiative thereby quickly gave way to widespread disillusionment with the tangible returns to people’s municipal service payments. “Whether this was a misinterpretation or not, Masakhane became the first step in trying to impose a regime of cost recovery on impoverished residents. But even then Masakhane was the gentle kid glove of cost recovery with appeals to people’s sense of responsibility and pride in 22. John Pape and David A. McDonald, “Introduction,” in Cost Recovery and the Crisis of Service Delivery in South Africa, ed. David A. McDonald and John Pape (Cape Town: Human Sciences Research Council, 2002), 1. 23. Ibid, 2.

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nation-building.”24 Indeed, if the ideologically-driven Operation Masakhane can be forgiven for having its heart in the right place, later cost recovery mechanisms abandoned grassroots input and egalitarian allocation of basic necessities in favour of privatization, wherein one’s access to essential public services (water, electricity, housing, healthcare, transportation, recreational facilities, etc.) became contingent on their ability to pay for them. The seeds of this privatization trend were sown with the ANC’s adoption of the neoliberal Growth, Employment, and Redistribution (GEAR) paradigm in 1996, whose market-based solutions to municipal budget deficits and bureaucratic backlogs effectively enabled corporate takeovers of key utilities.25 Far from an altruistic private sector response to gaps in government capacity, the commodification of bare necessities inevitably differentiates tiers of service and distorts sociallyaccepted requirements for subsistence. As a case in point, “In the Municipal Investment Infrastructure Framework (MIIF) of 1997, the [Department of Constitutional Development] set basic services at the level of pit latrines and a five-to-eight-amp electricity supply for urban residents with incomes of less than R800 per month. Applying such extraordinarily low standards to roughly 20 per cent of the population ultimately linked service delivery to cost recovery…And, since service infrastructure is typically a community rather than an individual provision, you also get the lowest common denominator (i.e. what your poorest neighbours can afford).”26

24. Ibid. 25. David A. McDonald “The Theory and Practice of Cost Recovery in South Africa,” in Cost Recovery and the Crisis of Service Delivery in South Africa, ed. David A. McDonald and John Pape (Cape Town: Human Sciences Research Council, 2002), 23. 26. John Pape and David A. McDonald, “Introduction,” in Cost Recovery and the Crisis of Service Delivery in South Africa, ed. David A. McDonald and John Pape (Cape Town: Human Sciences Research Council, 2002), 5.

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The negative externalities of this profit-maximizing approach to community service provision thus became particularly manifest in the growing divide between rich and poor municipalities’ average living standards. Not only were apartheid-era inequalities further entrenched, but local governments’ ability to tackle them were now severely undermined by GEAR’s championing of fiscal conservatism, market-based service provision and stringent cost recovery mechanisms. Corporate Monopolization of Water & Sanitation Services In response to this increasing pressure to implement cost recovery, many municipalities abdicated their constitutional mandate altogether and instead deputized private companies as the primary provider of utilities, often even contracting out territorial monopolies over water & sanitation (and often electricity) services to multinational corporations. The prolonged but ultimately unsuccessful battle by the South African Municipal Workers’ Union (SAMWU) to prevent Nelspruit, the capital of Mpumalanga province, from granting a 30-year transfer of municipal water services to the British multinational Bitwater is one of many examples of civil society groups publicly protesting these contracts. “But for every instance where privatisation and outsourcing were contested, there were dozens of incidents where functions were quietly outsourced—subtly moving the municipality further along the road to business mode. Literally hundreds of services previously provided by municipalities were handed over to private providers—from bus services in Durban, to stormwater drains in Middelburg, to motor-vehicle registration in the Northern Cape, to street-sweeping in Cape Town.”27 One particularly quiet but tremendously impactful transfer occurred in three Eastern Cape towns—Fort Beaufort, Queenstown and Stutterheim—where the French-South African multinational Aqua-Gold (later renamed WSSA) assumed complete control over 27. Ibid, 6.

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water & sanitation services, as apartheid approached its end. As with other urban areas throughout the country, the ANC in power reunified the whites-only municipality of Fort Beaufort with its peripheral black township, Bhofolo, to create a single municipal tax base. In this case, however, WSSA imposed steep tariff rates on the entire town, irrespective of the fact that under apartheid, “Bhofolo infrastructure had only ‘improved’ to unmetered yard taps and the bucket sanitation system.”28 The former township’s service charges thus skyrocketed by 600% from 1994 to 1996, and by summer 2000 municipal residents owed R17 million to the corporation.29 Privatization of water was arguably even more disastrous in Queenstown and Stutterheim, where WSSA responded to consumers’ bill defaults by cutting off service to entire black communities. Attempting to salvage some degree of service payment, councils in these municipalities installed individual prepaid meters to track each household’s water usage and avoid collective punishment from the WSSA.30 However, this initiative only furthered the politicization and rationing of water, leaving residents at the mercy of company price increases and fostering numerous negative health externalities from dismal sanitation standards in impoverished communities. Billed as an ingenious way to “free the municipalities from [the] arduous and time-consuming work” of water provision, WSSA monopolization instead implicated municipal authorities in a “revanchist war on largely black consumers,”31 severely undermining the project of citizenship and nationhood that the ANC sought to impart at all levels of government. HIV/AIDS Treatment and Prevention Nowhere is the need for public participation more dire than in the design of comprehensive policy frameworks to fight public health crises. In this section, I will focus on the (un)responsiveness 28. Greg Ruiters, “Debt, Disconnection and Privatisation: The Case of Fort Beaufort, Queenstown and Stutterheim,” in Cost Recovery and the Crisis of Service Delivery in South Africa, ed. David A. McDonald and John Pape (Cape Town: Human Sciences Research Council, 2002), 45. 29. Ibid, 47. 30. Ibid, 53. 31. Ibid, 56.

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of local government in South Africa to the late 1990s and early 2000s AIDS epidemic. President Thabo Mbeki’s national policies of HIV/AIDS denialism in tandem with social stigmatization of HIV-positive individuals and “high-risk” groups severely inhibited municipal capacity and willingness to confront the virus’s profound socioeconomic and cultural dimensions, dimensions for which a detached biomedical approach to disease prevention offers no easy solution. Mbeki’s tremendous failure to reckon with AIDS’ devastating effects on his country’s population is well-documented. By harmfully promoting the pseudoscientific work of noted “AIDS dissidents,” who posited the idea that antiretroviral drugs (ARVs) were causing rather than curing the disease and that the Western pharmaceutical industry had implicated thousands of unwitting scientists and medical professionals in a massive conspiracy to generate demand for its own products, Mbeki exacerbated and ignored the staggering death toll inflicted by AIDS in South Africa. This is not to suggest, however, that his government simply looked away. On the contrary, the Mbeki administration funded numerous questionable studies and clinical trials of alternative AIDS medication, including the infamous Virodene affair in which 11 of 42 participants reportedly died or became extremely ill after starting the drug trial.32 Disease knows no national borders or class divisions; yet, in the international community’s attempted response to southern Africa’s AIDS pandemic, noble humanitarian goals became entangled with sovereign interests and unequal modes of resource distribution. In the case of the South African AIDS epidemic alone, one can observe these two concurrent phenomena to a disturbing extent and with disastrous consequences for the general population. Mbeki was certainly unique amongst heads of state in his endorsement of AIDS dissidents’ unsubstantiated claims regarding ARVs, but even beyond such quackery, he linked his rejection of Western medicine with a forceful assertion of national sovereignty under the guise of African particularism. This is something Susan Epstein hints at but never explicitly mentions in her exposé of the 1999/2000 32. Susan Epstein, The Invisible Cure (New York: Picador, 2007), xvii.

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Kalafong trial, where the industrial solvent dimethylformamide (marketed as “Virodene”) was administered to HIV-positive patients as a supposed cure for AIDS, against the interdiction of the South African Medicines Control Council but with the blessing of the Mbeki administration. This is not to suggest, of course, that Mbeki deliberately and knowingly fostered the spread of an excruciating condition to over a quarter of the South African population nor that he had malicious intent in advancing quack treatment or even potentially-toxic local medicine over Western imports. Still, national health care policy is as vital to local government capacity as a medical condition’s social and biological components. To a large extent, the hypocrisy of a cosmopolitan president welcoming foreign capital with open arms while simultaneously repudiating lifesaving Western drugs under the pretext of national self-determination indelibly shaped the historical trajectory of the South African AIDS epidemic. Thus, the relevant question regarding municipal response to HIV/ AIDS is not if Mbeki’s pseudoscientific pandering and ARV ban hindered local efforts to combat the disease, but how municipalities adapted to or manoeuvred around national policy. A nationwide 2004 survey of local government HIV/AIDS projects by South Africa’s Department of Social Development found a widespread absence of disease-specific priorities in Integrated Development Plans (IDPs), a policymaking tool used by all municipalities in the country to outline their distinct development priorities on a five-year basis. This “general indifference towards mainstreaming HIV/AIDS in development initiatives”33 is indicative of tremendous spatial disparities in both quality and scope of available healthcare projects, if any existed at all. Nearly half of municipalities that implemented local HIV/AIDS projects had to rely on alternative revenues— NGOs, private companies, churches, etc.—as their primary source of funding, and most of these projects took the form of social awareness campaigns aimed at prevention rather than proactive efforts to close 33. Leon Swartz and Niel Roux, “A study of local government HIV/AIDS projects in South Africa.” Journal des Aspects Sociaux du VIH/SIDA (Vol. 1 No.2, Août 2004), 101.

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the seismic gap between clinical treatment rates and the number of residents currently living with AIDS.34 Most alarmingly, Kwazulu-Natal, Mpumalanga, and the Free State—the three provinces with the highest sero-prevalence rate of HIV/AIDS in South Africa—demonstrated an overwhelming lack of municipal disease treatment and prevention programs.35 In the absence of ARVs as well as sufficiently-staffed public hospitals, home or community-based care (HCBC) remained the most popular form of impact mitigation. This is, of course, a far more benevolent conception of service privatization than the corporate monopoly on water & sanitation services outlined in the previous section. Born out of necessity, HCBC often represented afflicted South Africans’ best chance at survival that, if properly supported by local government, could significantly reduce the epidemic’s effects on a given community. Nevertheless, the fact that such municipal HIV/AIDS projects were, at best, damage control of the larger socioeconomic problems perpetuated by Mbeki’s denialism exemplifies national policy’s potentially-alienating effects on local government capacity. The insulation of ANC elites—in 2003, with South Africa home to more HIV-affected people than any other country in the world, Mbeki still claimed he had never met anyone with the virus36—juxtaposed the horrifying levels of suffering on the ground, as municipal programs frantically stretched available funds to meet the mounting crisis. Ultimately, these piecemeal, cash-strapped efforts simply cannot substitute for broader public health initiatives (e.g. Uganda’s “Zero Grazing” campaign37) to understand HIV/AIDS’ interwoven biological, geographic, socioeconomic, cultural, and political factors that profoundly shape the way it manifests in certain areas and populations. 34. Ibid, 102. 35. Ibid, 105. 36. Verity Murphy, “Mbeki stirs up AIDS controversy.” BBC News. 26 September 2003. 37. Susan Epstein, The Invisible Cure (New York: Picador, 2007), 176-8.

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(3) Service Delivery in a Multi-Party Era There are several angles from which to view the ANC’s 2016 electoral losses. Ultimately, the only certainty at this early stage is the uncertainty of how South Africans’ relationship with their government will be understood in a post-ANC dominance era. On the one hand, the proliferation over the past two decades of not one but two viable opposition parties is a testament to the strength of the country’s democratic institutions. As The Guardian’s Justice Malala quite astutely points out, LGE 2016 represents a welcome departure from the African postcolonial narrative of former liberation parties maintaining a stranglehold on political power long after their administrative competence has expired.38 One can observe this disturbing phenomenon in many countries across postcolonial Africa, one of the better examples being Robert Mugabe’s 37-year reign in Zimbabwe. Among many other leadership traits, what made Nelson Mandela exceptional was his ability to recognize that his country’s longterm prosperity and political stability were far more important than the romantic narrative of his own liberation, or the narrative of the entire ANC, for that matter. In voluntarily stepping down after one presidential term, an affront to Mugabe and other selfserving dictators across the African continent, Mandela laid the foundations of the vibrant political pluralism we see in South Africa today. Malala is thus certainly correct in lauding LGE 2016 as the “maturation of our politics and the steady, welcome move towards a lively, competitive, responsive multi-party democracy.”39 On the other hand, there is no guarantee that South Africa’s current strain of multi-party democracy will necessarily lead to more progressive ends. Rather than acknowledge their shortcomings and adopt a more constructive campaign message, Zuma and the ANC doubled down on their race-based criticisms of the DA, describing the party as “snakes, the children of the National Party” and Mmusi Maimane, the first black party leader in the DA’s history, as a 38. Justice Malala, “South Africa has Broken the Post-Colonial Narrative.” The Guardian. 7 August 2016. 39. Ibid.

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“puppet of whites.”40 Not only have these personal attacks tarnished the ANC brand, but they also prominently display Zuma’s increasing detachment from reality, as urban blacks in Johannesburg, Pretoria, and Port Elizabeth—not just affluent Cape whites and coloureds— turn out in millions to vote for the DA.41 It is encouraging that the ANC has faced electoral consequences for its failures, but it still controls roughly 62% of National Assembly seats and, thanks to the party’s continued dominance in rural areas, 161 of 213 council municipalities.42 An endemically corrupt ANC is bad for the entire country, and service delivery systems will continue to suffer unless the party undergoes a thorough transformation. Empirical analyses of opposition government in post-apartheid South Africa are understandably quite limited, as only the DA has enjoyed a sustained position as the clear majority party in provincial or metropolitan government, controlling the Western Cape legislature since 2009 as well as the Cape Town Metropolitan Municipality— in coalition or outright—since 2000. Robert Cameron, comparing the DA’s record of service delivery in Cape Town to the ANC’s in Johannesburg, argues that vertical decentralization of political power and “quasi-federalism” were entrenched in South Africa’s Constitution from the very beginning.43 This has simultaneously diluted the effect of party politics on the provision of urban service delivery while encouraging greater centralization within ANC and DA party structures in order to maximize and consolidate their popular support. Thus, in an era of increasingly competitive multiparty democracy, the relevant area of analysis for local government may not be inter-party tension between the DA and ANC, but the efficiency and cohesion of intra-party politics. On one hand, a young institution has compiled South Africa’s best record of urban service 40. Ngwako Modjadji, “‘Puppet’ Maimane Hits Back at Zuma.” The Citizen. 24 July 2016. 41. “South Africa Local Elections: Four Things We Have Learnt.” BBC News. 5 August 2016. 42. Electoral Commission of South Africa, “2016 Municipal Elections.” 43. Robert Cameron,, “Vertical Decentralisation and Urban Service Delivery in South Africa: Does Politics Matter?” Development Policy Review [32(S1), 2014], S83.

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delivery during its tenure as the majority party in Cape Town,44 translating to higher voter turnout and increasingly broad bases of social support.45 On the other, a storied liberation movement turned political juggernaut now struggles to modernize and refashion its party brand, particularly vis-à-vis the Born Free generation, in the wake of intense internal fragmentation. Johannesburg, Pretoria, and Port Elizabeth—once bastions of ANC support—are now fair game, and depending on the level of turnout by each party’s base, these three metropolitan municipalities may very well tip the scales in the 2019 national election. This is neither acknowledged as an unequivocally positive (cf. Malala’s “maturation of our politics”) nor negative (cf. the Zuma faction’s scare tactics) phenomenon, as multi-party democracy itself offers no inherent advantage over a dominant-party system. What matters is the ability of institutionalized political parties to act as conduits for constituent concerns and effective apparatuses for the unconditional distribution of essential public services. To focus on whether one, two, or even more parties should fulfill this core promise of non-racial democracy misses the point of representative government entirely. Conclusion Both the ANC and DA must grapple with the sobering truth that millions of impoverished South Africans desperately remain in need of sustainable support structures at the municipal level. Indeed, the instructive cases of water & sanitation service privatization and the Mbeki government’s HIV/AIDS denialism testify to the dangers of undermining municipal capacity, whether through corporate rationing of essential public services or national disconnect from local realities. Only time will tell if the ANC or DA—or both— can initiate a return to the communal, cooperative spirit of the 44. Ibid, S87. 45. However, as Cameron points out, “this must be qualified by stating that historically the city has had a higher level of service provision, partly due to the fact that it has no populous black township with high degrees of poverty comparable to Johannesburg’s Soweto [nearly 1.3 residents as of the 2011 census]” (2014, s86).

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Reconstruction and Development Programme. However, one thing is certain: any step in this direction must involve and empower local governments to meet their constitutional mandate, to once again act as the focal point of direct political participation and service delivery.

Bibliography African National Congress (ANC), 2016 Local Government Elections Manifesto, 16 April 2016, 30. African National Congress (ANC), The Reconstruction and Development Programme: A Policy Framework (Johannesburg: Umanyano Publications, 1994) Booysen, Susan, The African National Congress and the Regeneration of Political Power (Johannesburg: Wits University Press, 2011) Cameron, Robert. 2014. “Vertical Decentralisation and Urban Service Delivery in South Africa: Does Politics Matter?” DPR Development Policy Review 32 (s1): s81-s100. Council on Higher Education, South African Higher Education Reviewed: Two Decades of Democracy (Pretoria: Council on Higher Education, 2016) Electoral Commission of South Africa, “2016 Municipal Elections.” Epstein, Susan, The Invisible Cure (New York: Picador, 2007) Grootes, Stephen, “LGE 2016: ANC failed in Gauteng, and the Wrong People Will be Blamed.” The Daily Maverick. 6 August 2016. Malala, Justice, “South Africa has Broken the Post-Colonial Narrative.” The Guardian. 7 August 2016. McDonald, David A., “The Theory and Practice of Cost Recovery in South Africa,” in Cost Recovery and the Crisis of Service Delivery in South Africa, ed. David . McDonald and John Pape (Cape Town: Human Sciences Research Council, 2002), 17-40 McDonald, David A. and Greg Ruiters, 2012. Alternatives to Privatization : Public Options for Essential Services in the Global South. New York: Routledge. Modjadji, Ngwako, “ ‘Puppet’ Maimane Hits Back at Zuma.” The Citizen. 24 July 2016.

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Murphy, Verity, “Mbeki stirs up AIDS controversy.” BBC News. 26 September 2003. Ndeletyana, Mcebisi and James Muzondidya, “Reviewing Muncipal Capacity in the Context of Local Government Reform: 1994-2009,” in South African Governance in Review: Anti-Corruption, Local Government, Traditional Leadership by Paula Jackson et al., 21-38 Pape, John and David A. McDonald, “Introduction,” in Cost Recovery and the Crisis of Service Delivery in South Africa, ed. David A. McDonald and John Pape (Cape Town: Human Sciences Research Council, 2002), 1-16 Republic of South Africa. Constitution of the Republic of South Africa, 1996 Ruiters, Greg, “Debt, Disconnection and Privatisation: The Case of Fort Beaufort, Queenstown and Stutterheim,” in Cost Recovery and the Crisis of Service Delivery in South Africa, ed. David A. McDonald and John Pape (Cape Town: Human Sciences Research Council, 2002), 41-60 Sen, Amartya, “Human Rights and Capabilities.” Journal of Human Development 6 (2), 151-166. “South Africa Local Elections: Four Things We Have Learnt.” BBC News. 5 August Swartz, Leon and Niel Roux, “A study of local government HIV/AIDS projects in South Africa.” Journal des Aspects Sociaux du VIH/SIDA (Vol. 1 No.2, Août 2004), 99-106 Turok, Ben. 2011. Readings in the ANC Tradition. Auckland Park, South Africa: Jacana Media. Zille, Helen, “The provinces as a bulwark of democracy,” in Future Inheritance: Building State Capacity in Democratic South Africa, ed. Daniel Plaatjies (Auckland Park: Jacana Media Ltd, 2011), 108-117.

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E cologies and Relational Ontologies: Indigenous

Land Defence, Mining Conflicts in Latin America, and the Potential for Global Socioecological Change by Aidan Gilchrist-Blackwood

About the Author

Aidan is a U3 Arts student, studying Joint Honours Political Science and History with a minor in Environment. He is interested in the politics of structural inequality, social movement politics, social ecology, and all things queer. Aidan is a part of the McGill Research Group Investigating Canadian Mining in Latin America and became particularly interested in amplifying narratives of indigenous land-defence in Latin America because Canadian companies (in part due to a lack of regulation in the Canadian legal system) comprise over half of all mining companies active in the region. He also likes cats, watching hockey, and vegan baking.

Abstract

Amplifies and outlines different relational ontologies articulated by indigenous land-defenders in Latin America, noting how many land defenders’ rhetoric and actions reflect a connection to territory that is threatened by extractivist economic activity, outlining a vision in which community and territory are inter-embedded, permanent, and deeply connected to the sacred. Indigenous land defence in Latin America similarly articulates possible alternative visions of property and rights to the extractivist-capitalist counterpart, as it is generally predicated on community-based conception of rights and property grounded in the rights of the community to sustainable selfdetermination. Insofar as these ontologies and right-claims fall outside the present-day nexus of legal power based on colonial state sovereignty, they comprise part of a transformational socio-ecological narrative. Moreover, the political geography of anti-mining land defence positions land defenders to significantly disrupt the expansion of the global capitalist world-system, as land defenders are situated at the commodity frontier and impede the system’s growth by denying extractives companies access to the resources demanded by the capitalist social metabolism. Finally, the aggregate impacts of indigenous land-defence against mega-mining projects couples with the impacts of land-defence against other modalities of extractivism to further demonstrate the transformational potential of land defence to halt the expansion of the capitalist world-system by disrupting its social metabolism at multiple commodity frontiers. Gilchrist-Blackwood

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Introduction Since the rapid neoliberalization of the world-economy in the 1990s, there has been a significant increase in resource extraction in Latin America that has come to be a driver of global capitalism.1 Increased resource extraction has in turn sparked new waves of conflict between extractive companies and the communities in which they operate. While resource extraction is often framed as a generator of “economic development,” sustained community opposition, much of which is occurring in indigenous communities, suggests that this framing is rejected by many stakeholders. Mega-mining projects are particularly contentious, as they can produce lasting environmental scars and disrupt community life while often operating without the consent of people living nearby.2 In resisting these projects, many indigenous land defenders relate their actions to cosmovisions3 that break from the status quo in a Capitalocene epoch characterized by “cheap nature” and the destruction of the environment through the capital accumulation of the few at the expense of the many.4 This paper examines the widespread prevalence of land defence as a modality of indigenous community opposition to mining projects in Latin America. It uses case studies of company-community conflict in the region to highlight the distinct relational ontologies and cosmovisions expressed by land defenders, the ways in which the communities’ visions of nature and “development” conflict with narratives of extractivist capitalism, and the extent to which land defence and its associated ontologies are part of a broader platform for socioecological change. This study will centre on the impacts of 1. Anthony Bebbington and Jeffrey Bury, Subterranean Struggles: New Dynamics of Mining, Oil, and Gas in Latin America (Austin, TX: University of Texas Press, 2013), 38. 2. Paul Alexander Haslam and Nasser Ary Tanimoune, “The Determinants of Social Conflict in the Latin American Mining Sector: New Evidence with Quantitative Data,” World Development 78 (2015): 401-419. 3. Defined by the Oxford English Dictionary as “a Particular way of viewing the world or of understanding the Universe”, particularly used in reference to Meso-American indigenous peoples. See: Oxford Living English Dictionary, “Cosmovision”, n.d., accessed March 22, 2017. 4. Jason Moore, Capitalism in the Web of Life: Ecology and the Accumulation of Capital (New York: Verso Books, 2015).

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large-scale mega-mining projects – those that extract large volumes of raw material – as they are analytically distinct from small-scale artisanal mining, which is traditionally practiced by many Latin American communities. To frame this study, this paper will use anthropologist Arturo Escobar’s understanding of relational ontologies to mean “different ways of imagining life”: the construction of socio-natural worlds encompassing nature, culture, individual, and community.5 This paper will also use Escobar’s writings to frame its discussion of the possibilities presented by indigenous land defence, building from his “discourses of transition” to argue that land defence comprises part of a transformational narrative from the current epoch, or one which both changes human systems and reshapes our understanding of the human-nature relationship to re-centre the natural world.6 While both indigenous and non-indigenous communities in the region have resisted the imposition of mega-mining projects, this paper will restrict its analysis to indigenous land defence to respect the different complexities and nuances of each lived experience. Finally, it is important to highlight my own positionality as the author: I am of European settler descent. This paper does not attempt to speak for indigenous land-defenders, but rather to highlight the different strands of indigenous-conducted scholarship on extractivism and relational ontology, amplify the voices of land defenders who have been interviewed by other authors, and to connect these voices to broader scholarship on mining conflicts and environmental justice. This paper consists of two main sections. It will first outline the relational ontologies expressed by opponents of mega-mining, demonstrating that land defenders’ rhetoric and actions reflect a connection to territory that is threatened by extractivist economic activity, and that community opposition articulates possible alternative visions of property and rights to its extractivist-capitalist conceptual counterpart. Second, it will note that the political geography of indigenous land defence challenges the expansion of 5. Arturo Escobar, “Latin America at a Crossroads,” Cultural Studies 24, no.1 (2010): 1-65. DOI: 10.1080/09502380903424208, 4. 6. Arturo Escobar, Encountering Development: The Making and Unmaking of the Third World (Princeton, N.J.: Princeton University Press, 2012).

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contemporary capitalism, while the linkages between anti-mining community mobilization and other forms of anti-extractivist protest emphasize indigenous relational ontologies in envisioning a postextractivist future and comprise part of a transformational narrative. All things considered, indigenous land defence against mega-mining in Latin America articulates distinct relational ontologies that challenges the capitalist-extractivist socioecological narrative, showcasing the possibility of global transformation. Ontologies of Land Defence and Extractivism Mega-Mining in Conflict with Indigenous Territoriality and Values The first key dimension of anti-extractivist relational ontologies is reflected in the rhetoric and practice of community opposition to mining projects. This rhetoric centers the interconnections between community, territory, and sacredness while opposing the destructive and transient properties of extractivist capitalism, thus articulating a post-development narrative which broadly challenges the “hegemony of liberal modernity” and its attempts to impose top-down “development” on indigenous communities in Latin America through economic growth, private property, and “Western” representative democracy.7 The political ecology framework is a useful starting point for approaching the conflict between indigenous communities and mining companies expressed by this rhetoric. Noted ecological economist Joan Martinez-Alier has argued that these conflicts are ecological distribution conflicts, encompassing “social, spatial, and temporal asymmetries in the access to natural resources or in the burdens of pollution”.8 In other words, conflict may arise because a mining company possesses sufficient power and resources to act without community consent and can easily externalize environmental harms, sparking resistance as communities which oppose the project have few avenues through which to voice 7. Ibid, pp.4-5, 45. 8. Joan Martinez-Alier and Martin O’Connor, “Ecological and Economic Distribution Conflicts”, in Getting down to Earth: Practical Applications of Ecological Economics, edited by Robert Costanza, Joan Martinez-Alier and Olman Segura (Washington, DC: Island Press and the International Society for Ecological Economics, 1996), p. 153; and Joan Martinez-Alier, “Mining Conflicts, Environmental Justice, and Valuation,” Journal of Hazardous Materials, 86, no.1 (2001): 11-12.

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their concerns. Martinez-Alier’s conceptualization of ecological distribution conflicts gives voice to some of the non-material dimensions of conflict, noting, for instance, that the protection of land and cultural traditions is a central reason for which communities oppose resource extraction.9 Escobar makes these non-material and cultural dimensions of ecological distribution conflict more explicit, arguing analysts must consider the relative power or powerlessness afforded to various knowledges and cultural practices when using the political ecology framework.10 Incorporating arguments from each of the above authors, geographers Anthony Bebbington and Jeffrey Bury have described resource extraction conflicts as “conflicts of enclosure, commodification, and struggle.”11 Thus, indigenous land defence can be seen as a simultaneously material and supra-material venture; the subsequent analysis will address multiple dimensions of the relational ontologies articulated by land defenders. Of course, it is important to clarify that not all indigenous communities necessarily oppose mega-mining projects. As John McNeish notes, to assume all indigenous peoples share identical interests homogenizes and essentializes their lived experiences while contributing to the colonial project of erasing indigenous diversity.12 Similarly, discourses that situate indigenous peoples within a natural “wilderness” without recognizing their agency and capacity to transform the surrounding environment are dehumanizing.13 Thus, it is especially important to recognize complexity and difference among indigenous peoples in analyzing indigenous perspectives on mega-mining projects, including the reality that many communities are internally divided over whether or not to support a given project. Among indigenous communities that oppose mining, indigenous 9. Martinez-Alier, “Mining Conflicts”, 12. 10. Arturo Escobar, Territories of Difference: Place, Movements, Life, Redes (Durham: Duke University Press, 2008), 13-14. 11. Bebbington and Bury, Subterranean Struggles, 11. 12. John-Andrew McNeish, “More than Beads and Feathers: Resource Extraction and the Indigenous Challenge in Latin America,” in New Political Spaces in Latin American Natural Resource Governance, edited by Harvard Haarstad (New York: Palgrave Macmillan, 2012), 40. 13. William Cronon and Richard White, “Indians in the Land,” American Heritage 37 (1986): 12.

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land defence often articulates a vision of community and territory as inter-embedded, permanent, and deeply connected to the sacred. For instance, the Maya communities of San Miguel Ixtahuacan and Sipacapa, in Guatemala’s San Marcos Department, have seen widespread community resistance to Canadian-based Goldcorp’s Marlin Mine project partly because the mine disrupts traditional socio-cultural relationships with the land.14 Such an understanding of how humans relate to the environment is broadly reflective of Murray Bookchin’s conceptualization of the organic community, a community in which human functions are part of the cohesive “whole” that comprises an ecosystem. These communities uphold a narrative that sees humans as embedded in a kinship relationship with the natural world, organized non-hierarchically.15 As Debal Deb explains, many indigenous societies have traditions of sustainable resource management, grounded in socially-enforced limits to allowable extraction. The sacredness of territory helps to prevent resource degradation, as territory has a vital social function: facilitating marriages, community gatherings and after-death rituals. Resources (in the above cases, land and water) are managed as an integrated community –to violate the community’s ecological norms and socio-ecological valuations is to commit a serious taboo.16 Or, in the words of Tewa scholar Gregory Cajete, “indigenous people understand that all entities of nature – plants, animals, stones, trees, mountains, rivers, lakes and a host of other living entities – embody relationships that must be honored”.17 In this light, many indigenous land-defenders relate their actions 14. Joris Van de Sandt, Mining Conflicts and Indigenous Peoples in Guatemala (The Hague: Corcaid and The University of Amsterdam Faculty of Law, 2009), 26; see also Morna McLeod, “Development or Devastation? Epistemologies of Mayan Women’s Resistance to an Open-Pit Gold Mine in Guatemala,” AlterNative 12, no. 1 (2016): 86-100. 15. Murray Bookchin, The Ecology of Freedom: The Emergence and Dissolution of Hierarchy (Montreal: Black Rose Books, 1982), 46-51. 16. Debal Deb, “Sacred Groves of West Bengal: A Model of Community Forest Management, “ University of East Anglia Working Paper Number 8 (2007), available at SSRN 2403540, 1-5, 30. 17. Gregory Cajete, Native Science: Natural Laws of Interdependence (Santa Fe, NM: Clear Light Publishers, 2000), 178.

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to a relational ontology which centres the connections between their communities, land, and the sacred. As explained by Fernando Solis, editor of Guatemala’s alternative political economy journal El Observador, community resistance has hinged on the fact that they see land, resources, water, forests, and mountains as integral components of local life which cannot be sold. Moreover, the community sees itself as having the responsibility to defend the integrity of the natural world.18 Affirming the non-hierarchical character of organic communities, a land defender interviewed by scholar of ecology Leire Urkidi argued that her actions modelled “the desired future human relationships… to organize ourselves without a centralized authority, without charismatic leadership, in a manner where we could create the ideal egalitarian society of the future”.19 In engaging in these modalities of land defence, many indigenous communities invoke notions of territoriality and permanence when defending their lands against incoming mining companies. Importantly, research on territoriality has shown that “identity achieves its strongest expression in a political context of conflicting rights over territory”,20 as is the case when a mining company asserts the right to extract resources from indigenous lands. Thus, quantitative trends in indigenous anti-mining resistance show land defence is most likely when holistic socio-ecosystems are threatened by the mine’s activities. Counter-mobilization most frequently occurs against open-pit mining projects, in which environmental destruction is the most visible, and in communities whose nonmining livelihoods (such as agriculture) and community governance structures are threatened by the project.21 Communities also often take issue with the long-term impacts of environmental externalities 18. Clif Ross, Marcy Rein, and Raúl Zibechi, Until the Rulers Obey: Voices from Latin American Social Movements, (Oakland: PM Press, 2014), 54. 19. Leire Urkidi, “The Defence of Community in the Anti-Mining Movement of Guatemala,” Journal of Agrarian Change 11, no.4 (2011): 573. 20. Michael Saltman, Land and Territoriality (Oxford: Berg, 2002 ), 3. 21. Haslam and Tanimoune, “Determinants of Social Conflict,” 405; and Moisés Arce, Resource Extraction and Protest in Peru (Pittsburgh: University of Pittsburgh Press, 2014), 4-6.

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on their community, which last for many years after the mine’s relatively short lifespan has been exhausted. Ospina-Peralta et al. have correspondingly noted that indigenous communities are more likely to mobilize against mining projects than non-indigenous communities because they collectively use indigeneity as a “framing device” to rally citizens around the defence of territory.22 Studies of other place-based indigenous movements corroborate the centrality of land to the relational ontology being articulated by anti-mining land defenders. Escobar’s study of Afro-Colombian and indigenous organizing against globalization on Colombia’s Pacific Coast, for example, found that their resistance tactics remained grounded in place to link “body, environment, culture, and economy.”23 Along these lines, Peruvian activist Margarita Pérez Anchiraico articulates her opposition to mining by noting the incursion of the extractivist economy into her community, San Mateo Mayoc, has changed their “customs, way [they] educate [their] children…[their] way of life”, reflecting the many impacts of territorial displacement on indigenous socio-ecosystems.24 Insofar as the community structures defended in the face of mining company incursions are rooted in a logic of community-based self-regulation and social coexistence,25 indigenous land defence constitutes an important component of the postdevelopment challenge to extractivist-capitalist relational ontologies. Mining companies, and their supporters in various national governments, often explicitly employ frameworks of “modernity” and “development” to justify their projects. Anthropologist Kyra Grieco notes the Peruvian State has frequently referred to land held by rural communities as “unproductive” when arguing for industrial mining in rural areas—former president Alan Garcia Perez even implied indigenous communities were “backwards” in writing an article comparing their land defence to the Greek fable of the “Dog in the 22. Pablo Ospina Peralta, Anthony Bebbington, Patric Hollenstein, Ilana Nussbaum, and Eduardo Ramírez, “Extraterritorial Investments, Environmental Crisis, and Collective Action in Latin America,” World Development 73 (2015): 40. 23. Escobar, Territories of Difference, 7, 185-190. 24. Ross, Rein, and Zibechi, Until the Rulers Obey, 287. 25. Escobar, “Latin America at a Crossroads”, 46.

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Manger”, whereby the dog cannot eat the grain he is guarding but still denies access to others.26 Extractivist paradigms similarly assert the commensurability of nature, the transience of tenure, and the imperatives of growth and profit. To this end, mining companies across the region have refused to recognize communities’ demands to maintain the functioning of ecosystems or the importance of land to indigenous traditions— when the opportunity for more profit presents itself, companies frequently relocate entire towns and appropriate communal lands for extraction. In 2014, the Working Group on Mining and Human Rights in Latin America presented the Inter-American Commission on Human Rights with a report that highlighted the systemic preponderance of forced displacement, with companies sometimes using coercion and threats to expedite their acquisition of community land.27 Furthermore, in contrast to notions of sustainable resource management held in common by many indigenous peoples, mining companies generally extract as much raw material as possible, stopping only when further extraction is not profitable.28 The case of the Marlin Mine illustrates how many community activists have broadly rejected claims to the necessity of extractivism and their modern developmentalist framing. In an interview with scholar Leire Urkidi, a member of the Guatemalan agro-ecological organization Ceiba noted that the community was “demanding life…fighting for leaving life for our children”. The land defender situated this struggle as incompatible with Goldcorp’s understanding 26. Kyra Grieco, “Motherhood, Mining and Modernity in the Peruvian Highlands from Corporate Development to Social Mobilization,” in Negotiating Normativity: Postcolonial Appropriations, Contestations, and Transformations, edited by Nikita Dhawan, Elisabeth Fink, Johanna Leinius, and Rirhandu Mageza-Barthel (New York: Springer International Publishing, 2016), 132. 27. Working Group on Mining and Human Rights in Latin America, “The Impact of Canadian Mining in Latin America and Canada’s Responsibility: Executive Summary of the Report Submitted to the Inter-American Commission on Human Rights,” 2014, 12. 28. Denise Humphreys-Bebbington and Anthony Bebbington, “Post-What? Extractive Industries, Narratives of Development, and Socio-Environmental Disputes across the (Ostensibly Changing) Andean Region”, in New Political Spaces in Latin American Natural Resource Governance, edited by Harvard Haarstad (New York: Palgrave Macmillan, 2012), 19-25.

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of socio-ecosystems, responding to the company’s promises that the community would receive ten percent of mining royalties generated by the Marlin Mine project by asking “if we are going to have ill children and the whole population ill, what do we want the 10 per cent for?” Another community activist framed the conflict in even more explicit postdevelopment terms. She conceptualized community land defence as a project of “organizing ourselves and protesting against the existing order, against the transnational consortium, against economic and sexual exploitation, against racism, etc.”29 Javier de Leon, a Maya Mam community leader and coordinator of the Association for the Integral Development of San Miguel Ixtahuacan, similarly argued traditional Maya development models and capitalist development models “are simply contradictory”, and that company acquisition of land is thus a form of “ideological subjugation…a kind of violence.”30 Thus, community activists in San Marcos position their fight against ecological exploitation as one that also articulates materially and socially sustainable solutions to the issues they face, including poverty and food insecurity. Many Maya people in San Marcos correspondingly reject mining because it fails to live up to sustainable standards, thus articulating a postdevelopment understanding as part of their broader relational ontology. Many indigenous land defenders also situate their resistance to mega-mining within an ontological history of resistance to colonialism, further affirming the postdevelopmental character of their actions by asserting alternatives to neocolonial development models. The extractivist exploitation of indigenous communities has been a prominent feature of colonialism for more than five centuries, impoverishing indigenous people by exploiting the natural environment while enriching the colonizers.31 Thus, indigenous scholars Taiaiake Alfred and Jeff Corntassel argue that statedirected imperatives of “economic development”, frequently invoked to justify resource extraction, are a contemporary modality of 29. Urkidi, “The Defence of Community”, 572-573. 30. Ross, Rein, and Zibechi, Until the Rulers Obey, 54. 31. Eduardo Galeano, Open Veins of Latin America: Five Centuries of the Pillage of a Continent (New York: Monthly Review Press, 1997), 11.

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“shape-shifting colonialism” that has impacted indigenous lives and livelihoods by destroying their groundings in nature since the contact period.32 Anti-extractivist organizers in Ecuador made explicit references to this history of colonialism and land defence after President Raphael Correa announced the expansion of foreign mining investment in 2009. Amanda Yepes, working for the environmental NGO Acción Ecólogica, argued that the organization’s opposition to such investment was based on an understanding that the mining industry had been harmful to the Ecuadorian people since the Spanish Conquest.33 Land Defence, Sovereignty, and Property In addition to defending distinct relationships with territory and the natural environment, many instances of indigenous resistance to mega-mining projects articulate a distinctly community-based conception of rights and property grounded in the rights of the community to sustainable self-determination (a term which Jeff Corntassle uses to describe how indigenous self-determination transcends “states’ political or legal recognition,” instead centering the reclamation of “territory, language, livelihoods, and natural resources”).34 First, land defenders tend to act on behalf of their whole communities, the entirety of which are right-holders. Embedded in such decision-making is thus a right-claim to decide the fate of extraction projects in their home territories. This phenomenon of community-based rights is most clearly evident in the frequent use of community referenda and consultas to assess collective opinion on the permissibility of a given extractive project. Referenda have been held by indigenous communities regarding mega-mining projects across Latin America from Guatemala’s Marlin Mine (which saw 98% of community-members voice their opposition), to Ecuador’s Quimsacocha Mine (in which 93% of the 32. Alfred and Corntassel, Being Indigenous, 602, 609. 33. Thea Riofrancos, “Contesting Extraction: State-Making, Democracy, and Large Scale Mining in Ecuador,” PhD dissertation, University of Pennsylvania, 2014, 166. 34. Jeff Corntassel, “Toward Sustainable Self-Determination: Rethinking the Contemporary Indigenous Rights Discourse,” Alternatives 33 (2008): 107-108.

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community voted no), to Argentina’s Lonco Project (whereby 82% of the local population voted to ban large-scale, open pit mining in their region).35 In formalizing their lack of consent through direct democracy, indigenous communities position themselves as decision-makers with the right to deny mining projects licence to operate. Organizers of these referenda have explicitly framed them as means to take a collective stance on mining in line with traditional means of community-based governance. For instance, Javier de Leon notes that such democratic processes have been practiced for hundreds of years in Maya politics, where community-members would “meet, arrive at consensus, and issue their conclusions in a formal statement.”36 The assertion that communities are right-holders with final say over the status of resource extraction projects is oppositional to the extractivist-capitalist relational ontology insofar as it conflicts with the existing configuration of rights and jurisdiction over natural resources, which is upheld by the power and legitimacy of the state and colonial actors. Legal scholars Marc Bungenberg and Stephan Hobe argue that permanent sovereignty over natural resources has been an important feature of state-building in Latin America since independence, used to solidify the power of central governments over the large territories they controlled. While communities may hold the right to consultation under some domestic and international frameworks, states retain the ultimate legal power to issue mining permits, and are also considered to be owners of the subsoil.37 The conceptual framework of ecological distribution conflict proves the oppositional nature of extractivist and indigenous relational ontologies by demonstrating that the interests of states and indigenous communities are structurally dis-aligned and that land defence has the power to challenge state power altogether. First, the massive amount of capital required in mineral extraction, coupled 35. Walter, Mariana, and Leire Urkidi, “Community Mining Consultations in Latin America (2002-2012): The Contested Emergence of a Hybrid Institution for Participation, “ Geoforum (2015): 1-15. 36. Ross, Rein, and Zibechi, Until the Rulers Obey, 55. 37. Marc Bungenberg and Stephan Hobe. 2015. Permanent Sovereignty over Natural Resources. Cham. ZG: Springer. 16-17.

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with the geographically-fixed nature of subsoil resources, brings mining companies and states into close relationships to negotiate the terms under which subsoil access will take place.38 Similarly, the unbalanced distribution of a given project’s benefits and costs (with the former flowing largely as capital to states and corporations and the latter flowing largely as environmental destruction to the surrounding community) have rendered states especially likely to tighten their control over natural resources as a matter of “progress” and “development”.39 For these reasons, indigenous land defence opposes narratives of state control by asserting “at least some control over political and economic processes in their territories”.40 Moreover, indigenous land defence can contest the very legitimacy of states created by processes of colonialism. When communities claim rightful territorial jurisdiction as a people grounded in place, Stefano Varese argues they assert the “ethno-biological integrity of territories.” Bioregions and ethnoregions, terms which describe the ecological characteristics of a place and the characteristics of the people who live there, largely overlapped until colonialism wrought “territorial disturbance”. Thus, anti-mining activity – which asserts the right to community maintenance of, and control over, such regions – presents a challenge to the international configuration of state power in the Capitalocene by denying states the right to further disturb indigenous territorial integrity.41 Of course, each indigenous community embodies a different relationship to the state, and some communities express their opposition to mining with demands for greater political voice within existing state structures. Shuar communities that demonstrated against the Mirador Project in Ecuador’s El Pangui Canton have discursively grounded their 38. Bebbington and Bury, Subterranean Struggles, 11. 39. Tom Perrault, “Nature and Nation: Hydrocarbons, Governance, and the Territorial Logics of Resource Nationalism’ in Bolivia,” in Subterranean Struggles: New Dynamics of Mining, Oil, and Gas in Latin America, edited by Anthony Bebbington and Jeffrey Bury (Austin: University of Texas Press, 2013), 68. 40. Humphreys-Bebbington and Bebbington, Post-What?, 20. 41. Stefano Varese, “Indigenous Peoples Contesting State Nationalism and Corporate Globalism”, In New World of Indigenous Resistance: Noam Chomsky and Voices from North, South, and Central America edited by Lois Meyer and Benjamín Maldonado Alvarado (San Francisco: City Lights Books, 2010), 268-269.

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opposition to the project in the language of Ecuador’s Plurinational constitution, demanding due recognition as citizens. To this end, demonstrations against the project have invoked Shuar participation in Ecuador’s 1995 war against Peru, with some community members expressing particular dismay at the government’s decision to send in the army to El Pangui when many Shuar people had previously served for the same institution and saw themselves as Ecuadorian citizens..42 However, land defence nonetheless positions indigenous peoples as the rightful occupants and decision-makers with respect to their territories, thus contesting colonial state power. In asserting rights grounded in the stewardship of territory, indigenous communities like the Maya of San Marcos have articulated a rights-configuration based on their status as first peoples. To this end, communities have frequently invoked international agreements like the International Labour Organization’s Convention number 169 (ILO 169) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) to assert their right to “free, prior, and informed consent,” which holds that communities must give approval before resource extraction can occur on their lands.43 Although the power of these frameworks to affect change is limited by the fact that enforcement power is monopolized by states, and thus mining companies often continue to operate without indigenous community consent,44 for the purposes of this paper it is useful to note that indigenous land defence is predicated on the assertion of indigenous peoples’ distinct place in global sociopolitical affairs. Taken in conjunction with the values and territoriality that ground community actions (see page 2), the legal claims articulated by anti-mining land defence are grounded in a broader vision of “sustainable self-determination”. Sustainable self-determination 42. Ximena Warnaars, “Why be Poor when we can be Rich? Constructing Responsible Mining in El Pangui, Ecuador,” Resources Policy 37, no. 2 (2012): 226. 43. Brant McGee. “The Community Referendum: Participatory Democracy and the Right to Free, Prior, and Informed Consent to Development,” Berkeley Journal of International Law 27, no. 2: 570-635. 44. Suzanna Sawyer and Edmund Terrance Gomez, The Politics of Resource Extraction: Indigenous Peoples, Multinational Corporations, and the State (New York: Palgrave MacMillan, 2012), 14.

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transcends a strictly rights-based discourse, enumerating each generation’s responsibility to live in kinship with the natural environment and maintain the complex socio-ecosystems grounded within.45 Indigenous land defence models this concept by asserting the community as a rights-holder and pushes the boundaries of rights discourse by outlining sustainable self-determination, which comprises a holistic vision of community and ecology. Towards a Transformational Environmental Discourse: Land Defence and Global Socioecological Change The Anti-Capitalist Political Geography of Land Defence against Mega-Mining Projects Given the oppositional nature of mining company and indigenous community relational ontologies, the ontology articulated by indigenous land defenders has considerable potential to challenge the modern organization of extractivist capitalism: land defenders’ structural-geographical position at the commodity frontier positions them to slow or even halt the expansion of this system. Of course, it is important to note that not all anti-mining land defenders consider themselves to be anti-capitalist. For instance, many opponents of IAmGold’s Quimsacocha Mine in Ecuador are small-scale banana and dairy producers who are integrated into international markets, seeking to protect their business rather than their subsistence from extractivist externalities.46 Still, a considerable number of communities vocally oppose the configuration of the capitalist world-system, as explained earlier. Moreover, the ideological position of a community does not necessarily change the geopolitical impacts of land defence on the capitalist world-system, as will be explained below. As explained by Marta Conde and Mariana Walter, capitalism 45. Jeff Corntassel, “Toward Sustainable Self-Determination: Rethinking the Contemporary Indigenous Rights Discourse,” Alternatives 33 (2008): 107-108. 46. Jennifer Moore and Teresa Velasquez, “Water for Gold: Confronting State and Corporate Mining Discourses in Azuay, Ecuador,” in Subterranean Struggles: New Dynamics of Mining, Oil, and Gas in Latin America, edited by Anthony Bebbington and Jeffrey Bury (Austin, TX: University of Texas Press, 2013): 119-148, 119-120.

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must constantly expand in search of new raw materials, as the system is build on a logic of perpetual growth.47 The commodity frontier is the “locus where extraction geographically expands... to meet expanding demand from industrialized economies”.48 The geographical expansion of capitalism commodifies land, people, and knowledge to facilitate the further growth of the system. Different facets of commodification at the frontiers are deeply interconnected: for example, people who are dispossessed from their lands by capitalist privatization can easily be appropriated by firms as inexpensive labour.49 This process is often violent: a 2016 study of violence at Canadian-owned mining projects in Latin America found that 44 deaths, 403 injuries, and 709 cases of “criminalization” (operationalized as “legal complaints, arrests, detentions and charges”) could be attributed to extractivist activities between 2000 and 2015.50 The expansion of capitalism relies upon its systemic social metabolism, or the biophysical exchanges between society and nature that uphold the system by providing new natural inputs.51 Indigenous land defence can thus be conceptualized as an attempt to halt resource extraction at the commodity frontier, challenging the social metabolism of the capitalist world-economy by impeding further systemic growth. Such an attempt is extremely salient in the current eco-political climate, as we witness a significant expansion in global social metabolic rate linked to increasing global consumer demand.52 47. Marta Conde and Mariana Walter, “Commodity Frontiers,” in Degrowth: A Vocabulary for a New Era, edited by Giacomo D’Alisa, Federico Demaria, and Giorgos Kallis (New York: Routledge, 2015), 72-73. 48. Ibid, 72. 49. Ibid, 72-73. 50. Shin Imai, “The Canadian Brand: Violence and Canadian Mining Companies in Latin America” (Toronto: Justice and Corporate Accountability Project Report, 2016), 4. 51. Manuel González de Molina Navarro and Víctor Manuel Toledo, The Social Metabolism: A Socio-Ecological Theory of Historical Change (New York: Springer, 2014), 44. 52. Roldan Muradian, Mariana Walter, and Joan Martinez-Alier, “Hegemonic Transitions and Global Shifts in Social Metabolism: Implications for ResourceRich Countries. Introduction to the Special Section,” Global Environmental Change 22, no. 3 (2012): 559.

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Indigenous Land Defence: Envisioning a Post-Extractivist Future Finally, indigenous anti-mining land defence parallels other antiextractivist movements in important ways. Indigenous peoples have played central roles in anti-extractivist land defence worldwide, from resistance against drilling for oil in the Ecuadorian Amazon, to community mobilization against natural gas extraction in Bolivia, to the fight against coal mining in New Zealand.53 The aggregate impacts of indigenous resistance on multiple commodity frontiers amplify the disruptive impacts of anti-mining movements on the capitalist social metabolism, contributing to a transformational narrative of material and systemic change that can in turn contribute to future movements. In addition to its role in the material transition away from extractivist-capitalism, indigenous land defence against all manners of resource extraction projects models an alternate Human-Earth relationship that further contributes to the transformational narrative from the capitalist world-system. As Donna Meadows argues, the optimal level at which to intervene in a complex adaptive system is the paradigm on which the system is based, as paradigms are (arguably) the source of systems and fundamentally shape the ways in which its components behave.54 In this light, indigenous mobilizations against oil extraction in the Ecuadorian Amazon have intervened in the extractivist-capitalist paradigm and contested the extractivist ontology while simultaneously emphasizing indigenous socio-natures, for example by arguing this extraction threatened their longstanding traditions and their caretaking ethic towards 53. See Suzana Sawyer, Crude Chronicles: Indigenous Politics, Multinational Oil, and Neoliberalism in Ecuador (Durham, NC: Duke University Press, 2004); Perrault, Nature and Nation; and Leah Temper, Ivonne Yánez, Khadija Sharife, Godwin Ojo, Joan Martinez-Alier, Coal Action Network Aotearoa (CANA), Maxime Combes, Kim Cornelissen, Helga Lerkelund, Marina Louw, Esperanza Martínez, Jolynn Minnaar, Patricia Molina, Diana Murcia, Temitope Oriola, Asume Osuoka, Maria del Mar Pérez, Tatiana Roa Avendaño, Liere Urkidi, Mercedes Valdés, Noble Wadzah, and Sarah Wykes. 2013. “Towards a Post-Oil Civilization: Yasunization and Other Initiatives to Leave Fossil Fuels in the Soil.” EJOLT Report No. 6, 8. 54. Donna Meadows, “Places to Intervene in a System,” Whole Earth 91: 83.

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the environment.55 Relatedly, enshrining community territoriality and the protection of socio-ecosystems were central facets of the Moseten people’s fight to protect their lands from oil companies elsewhere in Ecuador, alongside the many anti-mining struggles examined above.56 Anti-mining movements have also coupled with other antiextractivist mobilizations to outline an alternate paradigm: a post-extractivist future. The fact that anti-extractivist movements have been global in scope makes them powerful. In their various incarnations, they are manifestations of a broader ecological “justice globalism”, a grassroots reaction to local modalities of the injustices of capitalism. Transversal analysis reveals that these individuals and communities are ultimately opposing the same unsustainable world-system and its embedded relational ontologies. Solidaritybuilding between grassroots movements can thus be used to build a deeper ecological imagination of a possible post-extractivist and post-capitalist world.57 For instance, statements made by anti-oil campaigners in Ghana often reference the global fight for Yasunization, a movement to leave non-renewable resources in the ground. Modelled upon the creation of Yasuni National Park in Ecuador as an alternative to oil extraction, this movement draws from indigenous knowledges and relational ontologies, such as those detailed in depth in Section 2, to assert the existence of preferable alternatives to extractivism.58 Yasunization is in turn part of an even broader movement to centre indigenous relational ontologies in paradigms of social change. For example, Vikalp Sangam (Hindi for “Alternatives Confluence”) is an Indian movement for a sustainable future which emphasizes the importance of communities embedded in the natural world.59 Viewed in conjunction with other indigenous anti-extractivist mobilization, land defence against mega-mining is part of transformational narrative that threatens the capitalist 55. Sawyer, Crude Chronicles, 18. 56. Temper et al, “Towards a Post-Oil Civilization”, 68-70. 57. Saleh, Goodman, and Hosseini, “From Sociological Imagination to Ecological Imagination”, 96, 104-105. 58. Temper et al, “Towards a Post-Oil Civilization”, 128-129. 59. Vikalp Sangam, “About Vikalp Sangam,” n.d., accessed December 11, 2016.

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social metabolism and centers indigenous relational ontologies in its view of an altered Human-Earth relationship. Conclusion Patterns of anti-mining indigenous land-defence in Latin America surely express an anti-extractivist relational ontology which stands opposed to the extractivist-capitalist ontology, in turn demonstrating possible socioecological transformation. The preceding analysis has explored the nature of indigenous anti-mining relational ontologies and their conflicts with the relational ontologies of extractivistcapitalism, arguing that indigenous land defenders are deeply connected to territory and that they articulate alternative visions of property and rights. This paper then demonstrated that antimining land defence has great potential to spur socioecological transformation, as it can slow the social metabolism of capitalism from the commodity frontier. Further, its linkages to other modalities of anti-extractivist protest contribute to the visioning of a postextractivist world which centers a Human-Earth relationship modelled upon indigenous relational ontologies. In this time of looming capitalist crisis, indigenous land-defence contests the constellations of power that dominate the contemporary world and points to sustainable alternatives-- non-indigenous peoples must listen to, amplify, and support these struggles.

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McGill Left Review

McGill Left Review | Volume 1 | Spring 2017  

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