Court vs. Court

I’ve been a lawyer for thirty-two years, and I’ve never read a judicial decision like the one that the Montana Supreme Court issued last December 30.

While every court in this country – from the lowest state court to the federal tribunals – sees its job as obeying the dictates of the United States Supreme Court, the Montana Supreme Court chose to obey the U.S. Constitution instead.

The bottom line: the Montana court refused to comply with the US Supreme Court’s infamous 2010 decision in Citizens United, which struck down legal limits on how much corporations could spend on electing politicians or passing ballot measures. The Supreme Court ruled that corporations have a First Amendment right to intervene and influence our democracy with cash. Spending money is a form of free speech, said five of the nine justices. And by that one vote majority, the United States Supreme Court made corporations more powerful than government, more powerful than human beings. The second anniversary of the Citizens United ruling sparked a day of national protest, as my colleague Marty Berg reports.

Like many states, Montana had strong campaign spending laws, including disclosure of campaign contributors and one that prohibits corporations from giving money directly to candidates for public office out of the company treasury. Instead, corporations that want to get involved in elections are required to set up a special fund that can receive donations from individual corporate employees or shareholders and use that money for gifts to politicians or political causes.

As the Montana opinion explains, a Colorado-based organization known as “Western Tradition Partnership” sued to invalidate Montana’s corporate campaign controls, saying they were unconstitutional under Citizens United. Now known as “American Tradition Partnership,” the organization’s supporters and funding are murky, but it’s views are clear: it is extremely anti-environment. The Montana Supreme Court described its purpose as “to act as a conduit of funds for persons and entities including corporations who want to spend money anonymously to influence Montana elections. WTP seeks to make unlimited expenditures in Montana elections from these anonymous funding sources. WTP’s operation is premised on the fact, or at least the assumption, that its independent expenditures have a determinative influence on the outcome of elections in Montana.”

Lots of states have dealt with Citizens United by repealing or rewriting their campaign spending laws. Not Montana.

The Montana Supreme Court decision begins by discussing how in the late 1800s, big mining interests used money to back or bribe elected officials in Montana to take control of state government. The corruption got so bad that many citizens of the state lost their faith in government. “This naked corporate manipulation of the very government (Governor and Legislature) of the State ultimately resulted in populist reforms that are still part of Montana law,” writes Montana Chief Justice Mike McGrath. Among the reforms: the initiative process, and, in 1912, the limits on corporate spending.

“The question then, is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did,” the Chief Justice writes. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because the shadowy backers of WTP seek to promote their interests? Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines? We think not.”

While the US Supreme Court justices saw no “compelling interest” in limiting corporate contributions, the Montana Supreme Court had a different view: “Montana has a clear interest in preserving the integrity of its electoral process”;  “it also has an interest in encouraging the full participation of the Montana electorate”; and “a continuing and compelling interest in, and a constitutional right to, an independent, fair and impartial judiciary,” one that is not subject to being bought by corporations who elect friendly judges.

Concluding that “the impact of unlimited corporate donations creates a dominating impact on the political process and inevitably minimizes the impact of individual citizens,” the Montana Supreme Court refused to apply Citizens United and upheld the state’s campaign 100 year old reform law.

But that was only the majority opinion. Wait till you hear what the two dissenting justices had to say:

The first, Justice Beth Baker: “The value of disclosure in preventing corruption cannot be understated.” But, she continues, “I believe it is our unflagging obligation, in keeping with the courts’ duty to safeguard the rule of law, to honor the decisions of our nation’s highest Court.”

Justice James Nelson gets the last word, and it’s a doozy.

He writes:

“I thoroughly disagree with the Supreme Court’s decision in Citizens United…. I am deeply frustrated, as are many Americans, with the reach of Citizens United. The First Amendment has now been elevated to a vaunted and isolated position so as to endow corporations with extravagant rights of political speech and, with those rights, the exaggerated power to influence voters and elections….. In my view, Citizens United has turned the First Amendment’s 'open marketplace' of ideas into an auction house for Friedmanian corporatists. Freedom of speech is now synonymous with freedom to spend. Speech equals money; money equals democracy. This decidedly was not the view of the constitutional founders, who favored the preeminence of individual interests over those of big business.”

“It defies reality to suggest that millions of dollars in slick television and Internet ads—put out by entities whose purpose and expertise, in the first place, is to persuade people to buy what’s being sold—carry the same weight as the fliers of citizen candidates and the letters to the editor of John and Mary Public. It is utter nonsense to think that ordinary citizens or candidates can spend enough to place their experience, wisdom, and views before the voters and keep pace with the virtually unlimited spending capability of corporations to place corporate views before the electorate.”

“I absolutely do not agree that corporate money in the form of ‘independent expenditures’ expressly advocating the election or defeat of candidates cannot give rise to corruption or the appearance of corruption. Of course it can. Even the most cursory review of decades of partisan campaigns and elections, whether state or federal, demonstrates this. Citizens United held that the only sufficiently important governmental interest in preventing corruption or the appearance of corruption is one that is limited to quid pro quo corruption. This is simply smoke and mirrors.”

Citizens United distorts the right to speech beyond recognition. Indeed, I am shocked that the Supreme Court did not balance the right to speech with the government’s compelling interest in preserving the fundamental right to vote in elections.”

“I am compelled to say something about corporate ‘personhood.’ While I recognize that this doctrine is firmly entrenched in the law… I find the entire concept offensive. Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.”

Having explained, in the most vivid terms, why Citizens United was decided wrongly, Justice Nelson concludes: “I must return to the central point of this Dissent. Regardless of my disagreement with the views of the Citizens United majority, the fact remains that the Supreme Court has spoken. It has interpreted the protections of the First Amendment vis-à-vis corporate political speech. Agree with its decision or not, Montana’s judiciary and elected officers are bound to accept and enforce the Supreme Court’s ruling….Citizens United is the law of the land, and this Court is duty-bound to follow it.”

Students of the law know that courts are always disagreeing with each other. Like the majority of the Montana Supreme Court, judges seek to “distinguish” the circumstances of one case from the facts in another in order to rule a different way. But rarely do the cases involve issues so fundamentally important to the nation; rarely are the stakes so great and rarely are the differences so stark. My guess is we're going to be seeing more of this gentle judicial civil disobedience as the present US Supreme Court ventures ever farther into the realm of re-writing the Constitution.

All the Montana justices seemed to agree that the United States Supreme Court had made a terrible decision in Citizens United. It’s most vehement critic on the Montana court, certain of that as he was, nevertheless felt bound to obey a higher principle – to obey the law of the land. If only the five justices in Washington had felt the same way.

 

 

Fight Back Against Citizens United

On the second anniversary of Citizens United, the U.S. Supreme Court ruling that corporations are people, there’s bad news and good news.

The bad news: we’re seeing the full impact of the ruling, with the creation of PACs --- political action committees -- with innocuous Mom and apple pie-sounding names, like Make Us Great Again and Winning Our Future, funded by unlimited anonymous corporate contributions.

The good news is that the ruling has galvanized a grassroots backlash: if you’re mad as hell and want to join the fight to rid our democracy of toxic big money, there’s an explosion of grassroots opposition for you to plug into today, or whenever you’re ready.

First, a little history. Corporate political contributions have been stirring outrage for more than 100 years, since they helped elect Teddy Roosevelt in 1904. Once elected, the savvy Roosevelt got in front of a movement to outlaw those contributions, resulting in passage of the Tillman Act.

But the corporations didn’t just slink away in defeat; they developed ever more creative ways to skirt the law and influence elections.

In Citizens United, eight Supreme Court justices ruled in 2010 that while corporations couldn’t contribute to individual candidates they could give to political action committees that do not, supposedly, have formal ties to a particular candidate.

In their ruling, the justices took a flawed, too narrow view of the way in which money corrupts politics. First, they said that since the PACs aren’t linked to individual candidates, the contributions couldn’t be used to bribe the candidates, or extract a quid pro quo.

The court ignored the well-known fact that the monster PACs do establish informal but strong ties to individual candidates.

In addition, the court misstates the more insidious way massive corporate cash corrupts our government. As Harvard professor Lawrence Lessig points out, large corporate contributions ensure that only those candidates, regardless of party, who can collect those contributions, and espouse a corporate-friendly political agenda, stand any chance.

This creates a political system that thwarts goals of left and right.

If we don’t reverse Citizens United and confront corporate power, we can expect more corporate bailouts with no questions asked, and fewer consumer, environmental, employee and investor protections. We can expect more tax breaks for the 1 percent and more austerity for the 99 percent.

At WheresOurMoney, my colleague Harvey Rosenfield has proposed a constitutional amendment to overturn Citizens United that is easily understood and will withstand any legal challenge. You can read more about it here. There’s a great video with background and ideas about fighting Citizens United here.

You can find groups taking a variety of actions against Citizens United across the country here and here.

 

 

 

 

Slamming the Door on Democracy

Revolving door just no longer cuts it to describe how large corporate interests have swallowed up the government officials that are supposed to be working in our interest.

First Street, a D.C. insiders’ guide to people, policy and influence peddling, recently published a guide to lobbyists. The highest paid lobbyists were former elected officials, with an average take of $178,000 a year, the next highest paid group was former staffers, with an average take of more than $144,000 a year. Both left the professional lobbyists far behind in their value to their clients.

In public, our corporate leaders use polite language describing themselves in glowing terms like “job creators.”  Republicans wring their hands over regulations; Democrats weep crocodile tears over the plight of the middle class. Meanwhile the politicians feast at the public trough and prepare for lucrative payoffs, I mean careers, in the private sector.

Revolving door implies that these officials are somehow going back and forth between serving the public interest and the corporate interests that lobby them, pay for their campaigns if they’re elected, and then hire them when they’re ready to cash out.

But that’s not what’s happening.

The door doesn’t revolve, it only swings one way. And what’s happening to our government deserves much stronger language than the description of a door.

We have to face up to the fact that under our present system, election to public office, or appointment to key regulatory posts, is for the vast majority is the entryway into a world of legalized prostitution, where major corporations wield nearly absolute power over our government.

At WheresOurMoney.org we’ve proposed a constitutional amendment, 28A, to undo Citizens United, the awful U.S. Supreme Court ruling that unleashes even more unrestricted and unreported corporate money into our political system. That won’t curb lobbying. But rallying around the reversal of Citizens United will focus attention on the culture of legalized corruption that has overtaken our government.

 

 

 

 

 

 

 

The Right to Remain Silenced

Here’s another stark inequality that has come to characterize our nation: for every 99 Occupy Wall Street protestors who’ve been arrested, about one millionth of one fat cat has been arrested. Okay, I realize you can’t arrest a tiny slice of a fat cat, no matter how fat, so let me put it this way: Over a thousand Americans have been arrested around the country for protesting Wall Street in recent weeks, according to estimates. But after a half hour scouring the web, I can only find a handful of  instances of financiers or speculators being arrested for causing the collapse of our economy back in 2008 – that’s out of the hundreds of thousands who work for the Money Industry. Not one of the titans of Wall Street – the hundred-million-dollar-a-year wizards who were manipulating our economy for their personal pleasure – have been perp-walked into a paddy wagon, much less prosecuted.

The internet’s aflame with this irony, so there’s no point in belaboring it.

More important, but far less noticed, is the nature of the crime for which most of the 99% protestors have been arrested:  exercising what many Americans consider basic First Amendment rights – the freedom of speech and assembly. As we’ve witnessed over the last few weeks, in many places in this country you have no First Amendment right to walk down a street, sleep in a park, enter a public building. This isn’t anything new: under many court rulings interpreting the US Constitution, government can place “reasonable” restrictions on your rights, so as to protect the rights of others not to be disturbed.

That made sense back when “rights” belonged only to human beings.

But we now live in a new day, under a different view of the Constitution, courtesy of five members of the United States Supreme Court. According to their infamous decision in the Citizens United case, corporations have the same First Amendment rights as human beings when it comes to the freedom to express themselves by spending money to buy elections or influence votes.

There’s just one hitch to the Supreme Court’s equation of humans with corporations: when corporations exercise their First Amendment right to spend money, they completely overwhelm the First Amendment rights of humans. Sure, you can exercise your First Amendment right to donate a few bucks to a candidate for public office, or to a ballot initiative. But once a corporation opens its bank vault, your freedom of speech right is obliterated.

It used to be that the Supreme Court upheld laws that put “reasonable” restrictions on corporate spending in politics, under the theory that one person’s exercise of their rights should not disturb another’s. But Citizens United stripped that quaint notion from the law books. Until we amend the Constitution, the fat cats get to make the laws and break the laws. The rest of us have the right to remain silenced.

This travesty of democracy is now laid bare in cities and towns throughout the United States. There’s been plenty of fun poked at the strange hand gestures developed by the Occupy Wall Street supporters to substitute for applause or boos – so as not to disturb the peace of the nearby corporations. Protestors who dare to up the decibel level by using more advanced technology – a megaphone – in a public park in New York City, in the hope they can make themselves heard merely across the street, face arrest. Meanwhile, up in the executive suites, a small number of stupendously wealthy and powerful individuals order billions of dollars worth of lobbyists, lawyers and propaganda pumped into our democracy every year. It’s a deafening and unstoppable inundation… intended to make sure no one can hear what the rest of us have to say.

9 For the 99 – Restoring the Real Economy

Remember how aggressively our leaders have talked about tackling unemployment and the housing crisis?

Remember all the strong action to make good on their promises?

Me neither.

Remember how all our leaders criticized each other for taking money from Wall Street and other powerful corporate interests?

Remember all the potent steps they took to rid our democracy of corporate money?

Me neither.

You’ve probably heard of Herman Cain’s 9-9-9-tax plan, the scheme he says will get the economy going. Do you think it will work?

Here’s our proposal to restore the real economy. Unlike the solutions proposed by our leaders, these proposals focus on the problems faced every day by most people, not bankers.

We’ll be offering it at OccupyLA in the next couple of days to complement their work.

  1. Support 28A, constitutional amendment overturning U.S. Supreme Court “Citizens United” ruling to stop the flood of toxic corporate cash poisoning our democracy
  2. Prosecute Wall Street crime, not Wall Street protestors
  3. Give citizens same right to borrow taxpayer money from the Fed at the same low interest rates that Wall Street got in the bailout
  4. Cap bank fees and interest rates
  5. Offer real foreclosure relief:  Require banks to provide principal reduction for underwater mortgages, including allowing judges to reduce home mortgage principal in bankruptcy court to encourage mortgage modifications
  6. Repeal unnecessary tax loopholes and other corporate subsidies (overseas tax breaks, local & state tax bribes for moving jobs from one community to another, make corporations pay taxes) and transfer savings to taxpayers and small businesses in the form of tax cuts.
  7. Repeal corporate-backed NAFTA-style trade deals, which export U.S. jobs overseas, reduce wages of American workers to that of laborers in foreign countries and weaken environmental regulation.
  8. Restore traditional separations between federally guaranteed consumer banking from other, riskier, financial business.
  9. Reform student debt, stop predatory practices.

 

 

For more information, check out http://www.wheresourmoney.org

On Facebook https://www.facebook.com/wheresourmoney

Twitter http://twitter.com/ - !/WheresOurMoney

Support 28A http://www.wheresourmoney.org/campaign-2011/

 

 

 

 

 

It's Alive!

Wall Street has weighed in with powerful evidence that the United States Supreme Court was right when it concluded a few weeks ago that corporations are the same as human beings. Turns out, Wall Street has feelings, and they are hurt.

Wall Street is so “irked” at President Obama and the Democratic Party that it is rebuffing their requests for political money, according to the New York Times. “[I]t doesn’t feel good,” when Obama talks about Wall Street greed, complained a Morgan Stanley executive. “The expectation in Washington is that ‘We can kick you around, and you are still going to give us money,’” whined a major Wall Street executive. He warned: “‘We are not going to play that game anymore.’”

That’s just a bluff, of course, because Wall Street has been playing the Washington money game for decades – in fact, as we documented in our two hundred page report (PDF) last year, the nation’s economy is in the toilet now because between 1998 and 2008, Wall Street spent $5 billion on Washington, and Washington, without even a hint of partisanship, rolled over – deregulating the industry and encouraging the orgy of speculation that led to the crash.

The Supreme Court’s decision last month in the Citizens United v. Federal Election Commission case guarantees that big business will always be happy by solidifying corporate control over the nation’s legislative process. Discarding one hundred years of previous decisions, the court held that, under the First Amendment, when corporations spend money in the political process, it’s the same as when people make speeches.

This is a travesty. The practical effect of the decision is to accord huge multinational corporations the power to nullify the First Amendment rights of individual Americans. While you and I are “free” to drag a soapbox on to a street corner and  proclaim to our heart’s content, credit card companies, hedge funds, insurance companies are now “free” to unleash tens of millions of dollars from their corporate treasuries in an attempt to fix the outcome of any political debate in their favor. Sometimes that will backfire, as it did when insurance companies spent $80 million trying to persuade voters to defeat Proposition 103, the insurance reform I wrote back in 1988.  Californians figured out who was on the their side, and who wasn’t. But in the vast majority of lower profile issues, in which elected officials are called upon to choose between the policy choice favored by a huge money donor and the one that’s better for constituents, the money talks.

That’s why, despite the near-collapse of our financial system at the hands of the Money Industry, their lobbyists have still been able to stymie just about every congressional proposal to prevent another crash: reform of derivatives and the student loan system, creation of a Consumer Financial Protection Agency, and the recent proposal by the White House to ban banks from speculation.

The tyranny of the British monarchy led to the American Revolution. The Supreme Court’s decision substitutes a corporatocracy for the oppression of kings. So far, the tea parties that seem to be erupting spontaneously around the nation are directing their fire at the bailouts and other encroachments of government. They also need to keep an eye on the corporations that are arguably more powerful than the government already, or will soon be so thanks to the Supreme Court.