Citizens United Was Not the First (And May Not Be the Last)

Citizens United is hardly the first time that five justices of the U.S. Supreme Court have granted corporations special rights under the Constitution. In fact, you can chart the twists and turns in the politics of our country by the Supreme Court’s interpretation of the Constitution’s protection of big business.

During the First Gilded Age, when utility and railroad companies accreted enormous political power, the nation’s high court routinely blocked progressive reforms on the ground that they interfered with “freedom of contract.” The era is known by its most controversial decision, Lochner vs. New York, in 1905. The U.S. Supreme Court struck down a state law that barred bakers from being forced to work more than ten hours a day.  The Court relied on a creative interpretation of the Fourteenth Amendment, which commands “No State shall … deprive any person of life, liberty, or property, without due process of law…”

Just as Citizens United equates money with freedom of speech under the First Amendment, the five to four majority of the Supreme Court in Lochner equated “liberty” with the “right” of a company to impose onerous and often dangerous working conditions on men, women and children. This judicial policy of deregulation combined with speculation and greed to produce the Great Depression. But President Roosevelt’s efforts to rescue the nation from the financial abysss were blocked by the Supreme Court, until Roosevelt provoked a constitutional crisis by proposing to add additional justices to the Supreme Court (one for every justice over seventy years old!) to create a majority that would support his legislation. In effect, FDR chose to fight politics on the high court with more politics. Having impaired the Court’s integrity and independence, the pro-big business Justices backed down, permitting New Deal legislation to take effect. Twenty years later, the Supreme Court acknowledged that, “the day is gone when this court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.”

Though the Supreme Court ultimately stopped second-guessing the policies enacted by the Legislative Branch under the guise of interpreting the Constitution, its decision in Citizens United reflects an increasingly politicized Supreme Court. And what goes around, comes around. Even as Citizens United has ignited a grassroots rebellion and calls for a constitutional amendment to undo the Supreme Court's damage to our democracy, scholars and pundits on the corporate-funded right are promoting the resurrection of Lochner.  The legal attack on the 2010 federal health care reform can be seen as one manifestation of a revived challenge to the power of government to regulate industry.  We’ll see how this plays out with the current majority of the Supreme Court when they begin to hear arguments against universal health care later this month.

Citizens United / Harvey Column / Supreme Court - 03/12/2012

The Supreme Court Shot the Sheriff

"Corporations are people." Two years ago, that's what five justices of the United States Supreme Court gaveled into our Constitution, ruling in the now-infamous Citizens United case that spending money is a form of "freedom of speech" and that when corporations put up money to elect people, they are just exercising their First Amendment rights.

Two months ago, the Montana Supreme Court said wait a minute. It upheld a state law, enacted by Montana voters through the initiative process in 1912, that bars corporations from trying to influence elections. The justices of the Montana Supreme Court argued that the Montana law is different than the federal law that the US Supreme Court threw out, relying on what they described as an especially disturbing history of corporate corruption in Montana government.

When it comes to constitutional law, you can't get closer to the Gunfight at the O.K. Corral than this, as I recently explained.

That's a better analogy than you think.

The campaign finance laws, designed over decades to slow down the accretion of political power by special interests, were like a lazy sheriff in a western gold rush town - barely able to keep up with the legal and illegal maneuverings of outlaw corporateers, while average citizens became increasingly like bystanders in their own democracy.

Then the Supreme Court rode into town and shot the sheriff.

Now we are back to the Wild West, with corporate gunslingers targeting anyone - officials and civilians – who are in the way of their profits and prerogatives. Corporate money, often disguised and hidden behind a fortress of deception, has charged through the Republican presidential primaries, not to mention an untold number of state elections throughout the country. The full fury of this greed-driven onslaught will become apparent in the fall, as Wall Street and the .01 percenters weigh in not just to defeat President Obama (who has not cooperated enough) but any number of other candidates on ballots nationwide, not to mention initiatives put on the ballot by real, live citizens detouring corrupt legislators by taking matters into their own hands.

You can already sense defeat among government officials trying to figure out what defenses, if any, are left against the corporate hordes - the CEOs in their sky-high boardrooms quietly counting dollars and deciding which politicians have earned their financial support (or can be bought); the lobbyists with unlimited expense accounts to wine, dine and drive the quid pro quo; the vast underground of consulting firms and PR flacks that follow corporate orders.

No one could have imagined that Montana, with a population barely larger than a big city, would rise to challenge the United States Supreme Court. The Montana court ruling is an inspiring attempt to evade the deathly embrace of Citizens United and, at the same time, inescapably a courageous challenge to the ideologues now re-writing the nation's laws. It can be found here (PDF).

"Western Tradition Partnership" – the shadowy entity that was caught violating Montana's anti-corrupt practices act – immediately challenged the Montana decision, and last Friday, United States Supreme Court Justice William Kennedy (chief author of the Citizens United decision) issued an order blocking the Montana court ruling from taking effect until the court decides what to do with the appeal.

At least two of the Supreme Court justices who disagreed with their colleagues in Citizens United are hoping the Court will reconsider that ruling. In Friday's order, Justices Ginsberg and Breyer stated:

Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” .... [The appeal] will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.

Observers of the Court think that's a lost cause. Renowned constitutional scholar Erwin Chemerinsky believes that the U.S. Supreme Court will reverse the Montana Supreme Court by the same five to four majority in Citizens United. Still, Citizens United's impact on America's democracy has already been catastrophic, and support for proposals like ours to amend the Constitution has spread across the United States and transcends partisan labels. At the same time, Justices Scalia, Thomas and Alito are under fire for their close ties to conservative pro-business organizations, further undermining confidence in the impartiality of the nation's highest court. I would not underestimate the power of public opinion to affect the outcome of this showdown – if not now, then in the not too distant future of our country.

 

 

Citizens United / Harvey Column / Uncategorized - 02/21/2012

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.

Citizens United / Harvey Column / Occupy / Outrage / Supreme Court - 10/24/2011

The American Flag Deficit Reduction Program

The US deficit is estimated at $1.5 trillion. In Washington, the debate is between raising taxes or cutting spending. Neither is necessary, if we take advantage of America’s greatest asset, the Star Spangled Banner.

In dire straits after the Wall Street debacle, many governments across the United States and throughout the world are being pressed to sell public assets – buildings, utilities, trains, even highways. Just last year, Governor Action Hero tried to sell off California courthouses and other historical landmarks to a private consortium for $2.33 billion. Naming rights on sports stadiums and convention centers have always been a revenue strategy for municipalities and closely associated private firms like Anschutz Entertainment Group, which wants to build a football stadium in downtown Los Angeles. In addition to seeking tax breaks from the city, the firm has already sold the stadium's naming rights to Farmers Insurance for $700 million.

Why not rent some or all of Old Glory on a daily basis to pay off the debt we have racked up to bail out Wall Street?

Here’s the math.

There are fifty stars on the flag (each one added when a state entered the Union). So if those stars were to be made “available” on a daily basis, there would be at least 18,250 “opportunities” every year (50 x 365).

Divide the deficit by 18,250, and we could eliminate the federal debt in one year if each star were offered up at the price of $82 million ($82,191,780.08, to be exact).

Sure, that’s hefty price, you might say. Who would pay it?

Answer: the folks who got America into this mess in the first place.

So let’s say J.P. Morgan Chase wanted the highly prestigious opportunity to occupy the entire flag for one day each year. Here’s what that might look like:

As a special inducement to pay $4 billion, companies that agreed to take the entire flag for a day could also be given the right to put some text on one of the stripes. It could be the company's most important message:

Or anything its CEO might desire:

Some may object that it is inappropriate to put the American Flag in the hands of big corporations.  First of all, like the United States Supreme Court said in its Citizens United decision applying freedom of expression to corporations, all Americans will have equal freedom to buy access to the flag for $82 million per star. Corporations are Americans, too. Second, these companies own the United States anyhow, so what’s the biggie?

What about foreign countries? Should we rent the Stars and Stripes to our trading partners, the Chinese? If so, should we require them to write in English, or should we allow them to use Chinese characters?

That’s a tough question, and like all decisions concerning the American Flag Deficit Reduction Program, should be decided by the United States Congress.

Which, by the way, has a spectacular building in a prime location that would be highly attractive to certain firms. Consider this on the East Face of the Capitol Building:

"Congress. Brought to you today by Goldman Sachs."

Just think about it.

Financial Crisis / Harvey Column / Privatization - 07/07/2011