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March 2010, Volume 12, Number 3
Edited by Jim Hightower and Phillip Frazer
The Supreme Court's black-robed coup
Giving corporations more power to buy politicians of their choice
"For too long," wailed the senator in a heart-tugging cry for justice, "some in this country have been deprived of full participation in the political process."
Mitch McConnell, the Republican leader of the U.S. Senate, has never been mistaken for a bleeding-heart liberal, so you can rest assured that his anguish over inequality did not concern the disenfranchisement of minorities or poor people--or any kind of people, for that matter. No, it is the tragic political deprivation faced by America's corporations that moved Mitch to such an outpouring of woe.
And you thought compassionate conservatism was dead.
McConnell was expressing his solidarity with the five Supreme Court justices who ruled on January 21 that our poor corporate citizens are victims of a crass "censorship" unjustly imposed on them by local, state, and national campaign-spending laws. "Let Corporations Speak," chanted the Supreme Five. "Free the Corporate Money," they demanded.
And lo, they made it so. In the case of Citizens United v. Federal Election Commission, these five judicial contortionists perverted the Constitution, a century of the Court's own precedents, common sense, logic, and the laws of nature to decree that inanimate, corporate entities must be granted the human right to "speak" in the political arena. Never mind that a corporation is nothing but a legal construct created by the state and has no mouth, tongue, or brain for speaking--the Court fabricated a political voice for these paper inventions by declaring that their money is their language.
Thus, not only can the living, breathing executives of corporations continue dumping millions of their own dollars into elections (money that totaled more than a billion dollars in the 2008 cycle, meaning that corporate interests already possess far and away the most dominant voice in shaping our public policies), but henceforth, the trillions of dollars held by the corporate entities themselves can also be poured into electioneering ads and other forms of "speech."
All big-money corporations--from Wall Street to Wal-Mart--now have permission to open the spigots of their vast corporate treasuries and funnel unlimited sums of cash into campaigns to elect or defeat candidates of their choice for any (and every) office in the land. It's their wildest wet dream come true.
Oh, tut-tut, assert some apologists for the Court's twisted decision, it's not all that dramatic, because corporate funds still cannot go directly to candidates. Instead, the money has to go into "independent," corporate-run campaigns. None of these efforts can be coordinated in any way with the candidates.
Well, tut-tut yourself--this separate arrangement is worse, for it frees the corporate political effort from any mitigating forces that might exist within a candidate's campaign. People who run for office usually must balance their corporate support with at least a show of concern for the environmental, consumer, worker, and other constituencies in their districts. Now, however, corporations will effectively become the main "candidate" in any particular race, for they'll have much more money (and, therefore, a far louder "voice") than actual candidates. The control of a campaign's message and tone will shift from office seekers to the independent effort designed and run by corporations and their front groups.
Tut-tut again, say the apologists, insisting that it is irresponsible populist rabble-rousing to say that the Court's revisionist ruling "will open the floodgates for special interests...to spend without limit in our elections," as President Obama put it. After all, they explain, the Court left in place the requirements that campaign spending must be disclosed, and image-conscious corporations will not want the public to know that they are out to elect a lackey or defeat a maverick. So, apologists say, excessive corporate spending will be self-regulating. Not to worry.
I was born at night, but it wasn't last night. Corporations are well practiced at hiding their logos when they need to, and they commonly push their special-interest political agendas through associations and front groups (see last month's Lowdown for several shining examples of corporate fronts). Outfits like the U.S. Chamber of Commerce and the Club for Growth will serve as corporate campaign cloaks, as will specially created, front-of-the-moment groups with benign names like "Save the American Way." The chamber, for its part, asserted right after the Court's ruling that it will mount the "largest, most aggressive" electioneering-spending burst in its history this year targeting those officeholders who don't march in lockstep with corporate interests.
By "corporate interests," you might assume that means our good ol' made-in-the-USA brutes. But nooooooo. When the Citizens United case was argued before the Court last year, Justice Ruth Bader Ginsberg asked specifically whether foreign corporations would also get the right to "speak" in our elections. Good question--especially considering that foreign people are not allowed to give money or otherwise influence our campaigns. The answer from the Court's corporatist majority was... silence. Slyly, the justices simply evaded the question--and since their decision did not overtly reject participation by offshore corporations, Justice John Paul Stevens said in his dissent that the Court does appear to have freed corporate foreigners (but not human foreigners) to play in our nation's politics. So get ready to welcome Lenovo from China, Citgo from Venezuela, Sony from Japan, Bin Laden Construction from Saudi Arabia--and so many more--to spend freely in, say, a congressional race in your district.
The destructive impact of the Supreme Five's dictate will plunge right into the heart of democratic governance, for it gives corporate lobbyists the political equivalent of a nuclear weapon. Rather than merely influencing elected officials with campaign donations, corporate hired guns will be able to intimidate them. Big Insurance, Big Oil, Big Pharma, Big Box Store, Big Banking, Big Whatever, have suddenly been armed with the unlimited, devastating spending power of their practically bottomless corporate treasuries.Their lobbyists can bluntly say to a lawmaker, governor, mayor, or other official, "You support what we want, and we'll spend a million bucks to re-elect you. If you don't, we'll put our millions against you. Your choice."
Yes, yes, say squirming apologists, but don't forget that the Court also freed labor unions to take their members' dues money and spend it on their own independent campaigns. So, see, the ruling justices took special care to be "fair and balanced."
Where have we heard that phrase before?
Even if it were possible for all unions to scrape together every dime they have and spend it all on elections, their money would barely fill a #2 bucket, compared to the Niagara Falls of wealth available to corporations. For example, Wall Street's biggest bank, Goldman Sachs, paid three times more in bonuses to its top bankers this year than the $6 billion in total assets held by America's unions--indeed, combined union assets represent only one-tenth of one percent of the assets held by our country's four largest banks. Balance?
Thanks to the Court, corporate power just became controlling power, for the five-man majority has equated our nation's hallowed freedom of speech with the freedom to spend money on elections. This means that those with the most money get the most speech. Fair?
In case anyone doubts who has the most money, note that just the 100 largest corporations have annual revenues of $13 trillion and they can now tap this reservoir to spend as much as they want to elect policymakers who will do their bidding. This is plutocracy, not democracy.
What we have here is a black-robed coup against the American people's democratic authority, Who did this? Let's call their names: Sam Alito. Anthony Kennedy. John Roberts. Antonin Scalia. Clarence Thomas. Teach these names to your children.
Rebel against the coup
This gang of thieves did not come together by accident. From the time of Ronald Reagan through George W, there has been a concerted campaign by super-wealthy corporate executives and hyper-right-wing activist ideologues to assemble five Constitution muggers to do exactly what the majority did with Citizens United. Working through the Federalist Society, Cato Institute, Mercatus Center, Institute for Justice, Heritage Foundation, and other obscure corporate-funded organizations, these interests have quietly and steadily moved their disciples into every law school, the Justice Department, White House positions, congressional staffs, and the federal judiciary to spread their extreme laissezfaire dogma and position their movement to win Court seats.
Sometimes the corporate extremists failed in their bids (the Robert Bork debacle in 1987); sometimes they barely made it (Clarence Thomas in 1991). But with Alito replacing Sandra Day O'Connor in 2005, and with Roberts' ascension to chief justice that same year, they had their pieces in place.
I hate to say "I told you so," but for years the Lowdown has been chiding liberals and Democrats for focusing solely on social issues when opposing a court nominee, rather than highlighting the nominee's record of servitude to corporate power (for example, see the August 2005 issue). Sure enough, the current corporatist majority slid onto the top court (for life!) with practically no scrutiny of their plutocratic beliefs and intentions. A review of their careers, corporate connections, writings, and opinions would have shown that Citizens United was inevitable once five of these ideologues were seated.
You might recall the political flapdoodle that was manufactured last year by the right-wing scream machine when President Obama nominated Sonia Sotomayor to the Big Bench. Republican senators and a host of nattering pundits fell into drama-queen swoons of alarm because this learned lady had openly declared that her life experiences (naturally) helped shape her sense of justice.
What this means, shrieked the swooners, is that she might be a "judicial activist" who would supplant the careful judgments of the founders, previous court majorities, legislators, and the people themselves with her own political views. In short, Sotomayor would "legislate from the bench." Outrageous!
Conservatives, we've been told over and over, don't do this. For example, when nominated, all of the five Supreme corporatists now on the Court solemnly and piously attested that they are conservatives who deplore and abhor judicial activism. Take Chief Justice John Roberts, who promised under oath at his confirmation hearing that, as a strict constructionist, he would approach every case with "modesty and humility," never straining to expand the law beyond the founders' divinely inspired intentions.
"Judges are like umpires," he testified with charming self-deprecation. "Umpires don't make the rules. They apply them." Then, with an appropriately conservative chuckle, Roberts added, "Nobody ever went to a ballgame to see the umpire."
With Citizens United, however, umpire Roberts stormed from behind the plate to bat clean-up for the corporate team. With the other four bogus "conservatives," he has made an astonishing assertion not merely of judicial activism, but of rampaging judicial arrogance.
These five hijackers of our First Amendment purposefully reached down into the court system last spring to pull up an obscure, narrowly focused lawsuit (originated by a corporate-backed political front group), which they brazenly twisted into a constitutional case (see Lowdown, September 2009). In less than a year, they rushed Citizens United to judgment, using it to impose their personal political will over:
- The clear intention of the framers, most of whom despised and feared antidemocratic corporate entities and believed in banning any political participation by them (note that the Declaration of Independence, the Constitution, and the Bill of Rights speak only of people, deliberately leaving the word "corporation" out of our nation's founding documents);
- The repeated insistence by Congress and presidents that corporate money has no place in our democratic elections--indeed, from Teddy Roosevelt forward, the federal government has outlawed corporate spending on elections;
- The laws of 22 states and dozens of cities that specifically prohibit corporate funding of campaigns;
- The clearly established precedents of the judiciary itself, with court after court affirming over the decades that corporate money can and should be excluded;
- The consistent, 234-year belief of the American people that elections are for humans, not for artificial, autocratic, avaricious corporate entities--a deeply held cultural principle affirmed most recently in a February Washington Post-ABC poll showing that 8 in 10 Americans (including 76% of Republicans) oppose the Citizens United ruling, with 65% "strongly opposed."
When a cabal of five appointed extremists, none of whom has ever been elected to any office at all or had any direct experience with the corrupting power of corporate campaign cash, blithely decides it knows better than America's founders, legislators, and electorate about how to run elections, that's not conservatism. It's the very definition of swaggering judicial imperiousness. And it needs to be crushed, pronto.
What to do?
Everything. This is The Big One, the legalized coronation of corporate power over our elections, government, economy, environment, media...over us. The Court has gouged a gaping hole in our democracy, and we have to repair it. Several remedies are available to us, and we must try them all. Choose one, choose three, choose what suits you--but do something.
First: Believe. There is an insidious notion being spread that it's over, that the deal has gone down and there's nothing we grassroots people can do. That's not merely a contemptible lie, it's an insult to you and me, a crude attempt to repress the richly rebellious American spirit that is in each of us. The only force that ever produces change is us--grassroots people are the headwaters of all democratic possibilities, so let's put our minds to the challenge. Here are a few suggested fixes:
AMEND THE CONSTITUTION. Yes, this is a huge, extremely difficult, long-term solution, but it is the most direct, most populist way to end the legalistic nonsense that corporations are "persons" with dollar-based "speech rights." Two big coalitions, made up of both national and local organizations (from Public Citizen to Mainstreet Moms), have formed to get this done. FreeSpeechForPeople.org is focused specifically on overruling the Citizens United decision with an amendment clearly stating that Congress and states may deny free-speech spending rights to corporations. MoveToAmend.org, which is spearheaded by such outside-D.C. groups as Liberty Tree, Reclaim Democracy, and Program on Corporations, Law and Democracy, is pressing for a broader amendment stating that money is not speech and that only humans are "persons" with constitutional rights.
PUBLICLY FINANCE CAMPAIGNS. A national policy of providing public funds to candidates who reject all private donations made sense even before the Court's decision, but now it's urgent. Based on the success of "clean election" laws in such states as Arizona, Maine, New Mexico, and North Carolina, public funding offers an immediate counter to the antidemocratic gusher of corporate money the Court has unleashed. More than a dozen national advocacy groups have recently forged a bipartisan coalition, called FixCongressFirst.org, to promote a clean-elections policy for congressional campaigns.
IMPEACH. The five perfidious twerps who did this to us, our Constitution, and our historic democratic ideals ought not be allowed to use their black robes as political shields. These guys have arrogantly abused their power and willfully violated the public trust--and they will do it again and again. Those who so callously assault our democracy with their blatant servitude to narrow corporate interests should be called to account, which is the legal remedy provided to us by the impeachment process. Squeamish Democrats in Washington, ever attuned to corporate sensibilities, will shy from such direct confrontation. However, the people of our great country deserve nothing less. The "reasoning" of the five signatories to this coup was a legal farce--at the very least, the author of the opinion (Kennedy) or the ringleader of the coup (Roberts) should be called before the bar of representational democracy and be made to answer such technical questions as "What the #@!$% were you thinking?"
INTERIM STEPS. While pursuing the structural reforms outlined above, some tourniquets can be applied to limit the bleeding from the wound inflicted on our democratic elections by Citizens United. First, a majority of all shareholders should be required to approve every single political expenditure from corporate funds. After all, the money that would be spent does not belong to the executives, but to these investors. They are a widely diverse group (retirees, union members, consumers, environmentalists, et al.) whose political interests often diverge from those of a CEO, and their money should not be spent without their specific approval. Other patches include banning foreign-owned corporations from political spending, requiring corporations to disclose their funding of ads, and prohibiting electioneering by government contractors and certain other corporations. The problem with such regulatory approaches is that corporate lawyers and lobbyists are experts at punching loopholes in them. Still, we need to try everything.
Street protests? Yes. Letters, phone calls, emails? Of course--to everyone you can think of. Spread the word? By all means (distribute this issue of the Lowdown, get your friends and coworkers to discuss it with you, etc.). Challenge Congress critters? Absolutely--let them know that this is big for you and that you expect real action by them. Push your local groups and public officials to get informed and involved? Definitely, for this is a time when pushy might make a difference.
Mainly, trust yourself and realize that you are not alone. Reach out to others--this radical power play by the Court offers a rare teachable moment about the dangerous reach of America's corporate elites. True conservatives (and even many of the tea-bag mad-as-hellers) can't like this decision, so don't hesitate to enlist them, too. Finally, connect with national groups, but don't wait on them to tell you what to do. The best ideas for action are likely to come from your own grassroots connections and discussions. Meet up-and get moving.