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How Retired Justice David Souter Can Save the Supreme Court

The reputation of the United States Supreme Court is in trouble. Americans’ approval of the Court dropped fifteen points from 2009 to 2011, according to the Gallup Poll. Faith in the Supreme Court is dropping right along with confidence in government as a whole. Less than 2/3 of Americans say they trust the judicial branch, Gallup says.

And with good reason. Beginning with Bush v Gore in 2000, the court has issued a series of starkly partisan rulings in favor of conservative and corporate causes.

The decision of the high court that has most inspired outrage and derision in recent years is Citizens United. The Supreme Court rewrote the First Amendment to equate money spent on influencing elections and lobbying elected officials as a form of free speech under the First Amendment. Then the Court granted corporations the same First Amendment rights as humans. This twofer has unleashed a spree of legalized bribery by corporate America that will reach epic proportions in elections this year. It’s also ignited a grassroots firestorm. Where’s Our Money, and many other organizations, are backing a Constitutional Amendment to restore the primacy of humans to American Democracy.

As Justice John Paul Stevens pointed out in his blistering dissent to the majority’s opinion in Citizens United, the decision overturns a hundred years of Supreme Court rulings upholding restrictions on corporate campaign spending. Such a sudden and profound reversal in what the Constitution supposedly means is an offense in itself. It flouts a core principle of the American judiciary, known as “stare decisis,” which requires judges to respect the judicial decisions of their predecessors. “Stare decisis” is the basis for public faith in the integrity and honesty of judges and courts.

Perhaps for that reason, the Citizens United decision seems to have inspired several former justices of the Supreme Court to speak out.

In late May, now retired Justice Stevens, in a speech at the University of Arkansas, condemned the majority’s opinion in Citizens United as internally inconsistent because it leads inexorably to the conclusion that “the identity of some speakers may provide a legally acceptable basis for restricting speech,” something that can’t be squared with the text of the First Amendment – even as interpreted by the Republican majority in that very case.

Stevens also defended President Obama for taking on the Citizens United decision in his State of the Union speech in 2010, right in front of several of the justices. Which may or may not have something to do with why Stevens was at the White House last week to receive the Medal of Freedom. Stevens took the opportunity to again criticize Citizens United.

Another retired justice has also weighed in, perhaps involuntarily. As Jeffrey Toobin reported in the New Yorker two weeks ago, Citizens United started out as relatively modest challenge to a federal campaign finance law. Supreme Court Chief Justice John Roberts and his conservative fellow travelers on the Court subsequently decided to use the case as an opportunity to rewrite the First Amendment in favor of big corporations. But Justice David Souter, a fiercely independent and revered jurist, objected to this tactic. According to Toobin, Souter, scheduled to retire in June, 2009, “wrote a dissent that aired some of the Court’s dirty laundry. By definition, dissents challenge the legal conclusions of the majority, but Souter accused the Chief Justice of violating the Court’s own procedures to engineer the result he wanted.” Toobin describes Souter’s draft dissent as “an extraordinary, bridge-burning farewell to the Court.”

To avoid a published dissent that would have profoundly questioned the integrity of his Court, Chief Justice Roberts set the case for re-argument on June 29, 2009. This highly unusual move kicked the decision over until the next court term. Toobin says that Roberts did this knowing that Souter would be gone by then.

The source for this explosive reporting could be Justice Stevens... or it could be retired Justice Souter himself.

Souter has donated his papers – including presumably his draft dissent in Citizens United – to the New Hampshire Historical Society. Unfortunately, he has barred any access to them for fifty years.

We can’t wait that long. It’s hard to estimate how much damage to American politics will be done between now and 2056. A nation dominated by corporations and mega-wealthy CEOs for the next half-century will look a lot worse than even the corrupt system in effect today.

And the erosion of trust in the integrity of the Supreme Court is something all Americans – not merely we lawyers devoted to justice – should be alarmed about. The judicial branch used to be the one branch of government where the average person could take on City Hall or a giant corporation and expect to be treated equally, free of political influences. Lose that option, and what’s left for the 99%?

Retired justices typically refrain from criticizing their former colleagues. A sense of decorum, and the sanctity of the judicial process, mandates a quiet retirement for most departed members of the Supreme Court. But the integrity of the institution itself is now in question. The rule of law is being supplanted by the political preferences of the appointees on the Court. It won’t be long before the monstrous swelling of money in politics spread by Citizens United directly infects the composition of the high court itself. Those who care about the independence of the judicial branch should do everything in their power to save the Supreme Court. This includes justices who have left the Court.

Like everything else in our democracy, exposure is the first step toward healing. Americans deserve to know what is going on behind those closed bronze doors, above which reads the promise, “Equal Justice Under Law.”

Justice Souter should permit the immediate release of his original draft dissent in Citizens United.

Citizens United / Harvey Column - 06/06/2012

President aims to take the money and run

Here’s what President Obama wants you to believe about his relationship to the Supreme Court’s Citizens United ruling and the toxic torrent of corporate cash polluting our politics: “it’s complicated.”

In their ruling, the justices determined that corporations had a free speech right to anonymously contribute as much as they wanted to third-party political action groups that worked in support of candidates, as long as those PACs had no formal connection to the candidate.

On the one hand, the president blasted the court’s ruling less than a week after it was issued, with the justices seated right in front of him, in his January 2010 State of the Union speech, for opening “the floodgates for special interests – including foreign companies – to spend without limit in our elections.”

On the other hand, his campaign decided two years later to “level the playing field” with Republicans and encourage Super PAC support for the president, by allowing cabinet members and senior White House officials to cooperate with a Super PAC that supports their boss.

On yet another hand, the president insisted he would support a constitutional amendment to undo Citizens United.

And on yet still another hand, when the president had the opportunity to actually do something to shed some sunlight on the secretive stash of corporate donations unleashed by Citizens United, by issuing an executive order requiring government contractors to reveal all their political spending, he balked.

When you follow the president’s actions, rather than listen to his words, it’s not complicated at all.

The president and his Democratic Party colleagues are determined to “take the money and run.”

For nearly a year, President Obama had floated the idea of issuing an executive order requiring government contractors to disclose all their political contributions – including contributions to PACs and organizations like the US Chamber of Commerce – when they submit a bid.

The biggest contractors, for the most part, are defense contractors like Lockheed Martin, which smother the politicians in contributions to keep the weapons contracts flowing. In the 2012 cycle, Lockheed’s PAC has spent more than $2 million in contributions that we know of, 59 percent to Republicans and 41 percent to Democrats.

Its contributions go beyond an attempt to win a single weapons contract. What they and the other contractors have been able to do is to purchase the country’s entire debate over defense spending, so that few of our representatives ever raise a peep about whether the expensive defense systems are necessary.

Republicans howled at the President Obama’s proposal, accusing him of attempting to politicize the bidding process. President Obama wanted to know who had made the contributions, the Republicans charged, so he could award bids to the highest-contributing bidders.

While President Obama stewed, the Republicans passed measures in May 2011 to block [m1] an executive order if it was issued.

The venerable Public Citizen organization made a suggestion that would sidestep the Republicans’ stated objection.

Why not, Public Citizen said, limit the disclosure requirement to the winning bidder?

But the president backed off – either because he didn’t want a fight with Republicans or because his fundraisers reminded him he had a tough campaign ahead and the little people they dote on with their solicitation emails weren’t going to be able to foot the bill.

On the most critical issue facing our political system, the president of the United States is incapable of leveling with the American people.

President Obama may want to do the right thing, but he is trapped in a system controlled by big money that is bigger than he is.

The first step to fight back against that system won’t come from Washington. It will come from building a grassroots movement to undo Citizens United. Read more about it, and our proposed constitutional amendment, which is easy to understand and will withstand any legal challenge, here.

Citizens United / Congress / Martin Column - 04/13/2012

Why the Supreme Court Wants to Kill Universal Health Care

Name the most popular federal program of all time, and you’ll understand why the Republican Supreme Court wants to kill health care reform before it gets going in 2014.

It’s Social Security, of course. Part of FDR’s New Deal, Congress enacted it in 1935 to provide insurance against the vicissitudes of old age, poverty and unemployment, all of which were made more horrific by the Great Depression.

Social Security retirement benefits are based on an individual mandate, just like the new health care law is. Workers and employers are required to pay taxes into the system now, to cover them later. You can’t have a solvent health or retirement insurance program if participation is voluntary, because no one will contribute until they need the benefits – and then they can’t pay for them, as I’ve noted. Social Security, like the health care law, is a universal system - everyone has to be part of it – both getting the benefits and paying for its cost.

Due to a limited grasp of their own history, most Americans don’t realize how similar today's campaign against universal health care is to the one waged against Social Security.

Republican lawmakers bitterly opposed (PDF) FDR’s measure – and still do, though these days they cloak their hostility behind the hysterical and unfounded argument that Social Security is about to go bankrupt. Federal Reserve Chairman Alan Greenspan claimed in 2004 that retirement benefits had to be cut and the system “privatized” or the nation would face an economic disaster (it did four years later, thanks not to Social Security but to Greenspan’s policies). The Bush Administration concocted a plan to turn over Social Security proceeds to Wall Street, which it claimed would do a better job of investing people’s retirement savings. Had it succeeded, most of that money would have been lost in the financial crash of 2008.

But the conservatives’ attempts to demolish Social Security have consistently failed. Why? Because Social Security works. Americans support it by huge margins – even Republicans.

Hence the vehemence of the attack on the health care law now. The anti-government forces realize that once Americans begin to receive the benefits of universal health care – no denials for pre-existing conditions, no medical underwriting, no caps on benefits – they won’t want to give them up.

That’s not all. Under the law passed by Congress, the insurance industry stands to gain the most from the mandate that all Americans buy health insurance. But the experts understand that the program will end up being too expensive – in most states, private insurance companies are going to be able to raise their rates at will. If this doesn’t kill universal care, it will eventually lead to a single public system just like Social Security.

Last week’s spectacle at the Supreme Court – three days of “hearings,” with some lawyers appointed by the Court itself to argue positions no party had taken – looked more like a political ambush by a legislative body than the supposedly chaste pursuit of constitutional principles. It’s important to remember that an unelected majority of the U.S. Supreme Court almost nipped Social Security in the bud 75 years ago. Pro-industry conservatives on the Court consistently rejected FDR’s proposals to provide Americans relief from the New Deal, as I explained recently. The Social Security law was considered in danger by FDR’s advisors. Criticism of the Supreme Court became widespread, and FDR began to prepare a plan to add more justices to the nine serving on the high court. Unwilling to provoke a constitutional confrontation that would sully the independence of the judicial branch, the Supreme Court backed down, and upheld the law.

It’s difficult to discern any similar hesitation by the current majority of the Supreme Court, with five of its nine members increasingly unabashed ideologues willing to rewrite the Constitution. Think about the Court’s decision to interfere with the Florida vote count and award the 2000 election to George Bush. Consider its 2011 decision in Concepcion v. AT&T, where five Republican appointees determined that “arbitration clauses” inserted in the fine print of virtually every contract between a giant corporation and consumers can rob people of their right to their day in court. And then there’s the infamous 2010 Citizens United case, in which the five ruled that spending money to influence elections is a form of free speech, protected by the First Amendment. In one fell swoop, the Court disenfranchised the vast majority of Americans who cannot hire their own lobbyist or fund the election of a friendly politician.

On the other hand, yesterday President Obama sent the politicians on the high court a powerfully worded message. Briefly channeling FDR, he said: “I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.”

Much is at stake here – more than health care reform itself. Public confidence in government is at record lows. As the financial crash of 2008 confirmed, money has corrupted the electoral process; the wealthy and powerful dictate public policy. The judiciary used to be the only branch of government in which a citizen could take on any person or corporation and be accorded equal stature. When Americans loses their confidence in the integrity of the courts, what is left?

Citizens United / Harvey Column / Supreme Court - 04/03/2012

The Health Care Games

Like the Hunger Games, in which leaders of the 1% connive to rig a contest so that a charismatic representative of the 99% is defeated, there’s lots of intrigue behind the US Supreme Court hearings on the federal health care law that begin today.

The ostensible issue before the high court is whether the universal health care system established by Congress in 2010 is constitutional. Like the systems in most other developed nations, that law requires all Americans to be covered – whether through their employer or by purchasing it directly. Now this is just plain arithmetic: you can’t have a solvent universal care program if participation is voluntary, because the young and healthy won’t bother to pitch in until they get sick, leaving the older and less healthy to cover most of the cost. Universal means everyone has to be part of it – both getting the medical benefits and paying for its cost. Today, taxpayers end up bailing out people who don’t buy insurance and then get sick or in an accident.

But the corporate funded US Chamber of Commerce and other right wing entities, plus anti-government foes (including most of the Republicans candidates who want to run the government), argue it was unconstitutional for Congress to order everyone to pay for health insurance. My problem with that part of the law – known as the "individual mandate" – is that you have to buy the insurance from private insurance companies, and there is no limit on what they can charge you. That’s gotta be fixed, and a campaign is underway to do that in California. As everyone knows, however, Obama lifted his health care proposal from the law that Mitt Romney, then Governor of Massachusetts, enacted there in 2006. So its obvious that a big part of why the corporate Republican establishment opposes the law is that it was backed by a Democrat – Obama – and they don’t want him or any other elected Democrat to be able to claim any political victories.

There’s much more to the Supreme Court case than crass party politics, in any case. Many on the corporate right are hoping the US Supreme Court will issue a sweeping decision like they did in Citizens United, this time ratcheting back Congress’s regulatory authority across the board and therefore bolstering the power of big corporations – just as Citizens United did, in the guise of granting corporations a new right to corrupt elections under the First Amendment.

A decision limiting Congress’s power to regulate pollution would be a huge win for chemical manufacturers; drug and tobacco companies want to escape the Food and Drug Administration’s safety requirements; Wall Street wants taxpayer bailouts with no strings attached. As I wrote a few weeks ago, the powerful elites in this nation think that the health care case is the Supreme Court’s best opportunity in decades to roll back constitutional rights to the deregulated era of excess that led to the First Great Depression eighty years ago. This will be done in the name of protecting Americans against the intrusion of government in their lives.

In the Hunger Games, the hundred thousand wealthiest people in “Panem” gather in their Capitol to watch as twenty-four randomly selected citizens fight each other to death. This is a yearly penance, we are told, imposed by the wealthy in response to an earlier, unsuccessful revolt by the 99%. The Games provide an excuse for a non-stop party for the powerful – like Mardi Gras only with unimaginable excess. The citizens – known as “Tributes” – come two each from all twelve “Districts” in the country. Those Districts looked a lot like many parts of the United States. People trudge to poor-paying jobs and live in flimsy structures one step up from homelessness. They shop at flea markets where barter is common. They catch their own food. They help each other out because the Capitol has long since abandoned them.

There are other eerie similarities and ironies. In the Hunger Games, the entire game area is wired with cameras and the contest is continuously broadcast to the nation on enormous screens. This quickly turns to the disadvantage of the 1% in the Capitol, because the 99% become inspired by watching the heroine’s courage and humanity and start to rebel anew. This is a lesson our Supreme Court has already learned: you can forget about seeing any of its hearings on the health care law on a screen of any size. Watching the Justices and corporate lawyers rework the Constitution into a weapon of the mighty might anger some Americans. So the Supreme Court has banned any video… but says it will release audio at the end of each day’s hearing.

It’s clear from the movie that the elites have powerful medicines that can instantly eliminate infections and heal wounds, but residents of the Districts have never seen that kind of health care. I guess the Panem Chamber of Commerce would argue that these citizens are fortunate to be “free from government interference in their lives.”

Citizens United / Congress / Harvey Column / Supreme Court - 03/25/2012

“There Oughta Be A Law” – Want to Play?

I wrote last week that until we change the Constitution to permanently kick corporate money out of politics, we can forget about Congress protecting us from cell phone company contracts that strip consumers of their right to go to court.

I got a lot of interesting email on that post, because most people who read “Where’s Our Money” and other blogs think there “oughta be a law” of some kind. But no matter what you believe in or where you stand on the ideological spectrum, anybody who is trying to make America a better place for human beings is going to have a hard time overcoming the corrupting effect of corporate money on public officials and the democratic process.

Think I’m wrong? Here’s my challenge:

Name a policy issue that involves our power as voters, consumers, workers, taxpayers or even shareholders and I will show you how corporate money has derailed any serious progress on the matter.

If you don’t want to post it publicly, just ask that your comment remain private, or send me an email.

The same day I mused on our new status as second-class citizens courtesy of the US Supreme Court’s Citizens United decision, President Obama’s re-election campaign endorsed a constitutional amendment to reverse that ruling. "The President favors action—by constitutional amendment, if necessary—to place reasonable limits on all such spending," the Obama campaign said. This came in the context of a another controversial move: the President had decided to encourage supporters to donate to one of the Super PACs supporting him. “Super PACs” are the shadowy groups that the Supreme Court freed of restraints on political spending in Citizens United. Tens of millions of dollars, most of it from unidentified corporations and wealthy donors, have poured into the Republican primaries. But that’s just a fraction of what Super PACs are expected to spend to unelect Barack Obama in November.

In a stark example of biting the hand that has fed it, Wall Street has made it clear that it is offended even by the timid financial reforms mustered by the Obama Administration over the last few years. Now that the taxpayers have resuscitated the Money Industry, it wants to go all the way back to the insane deregulatory policies that pushed the nation into a depression in 2008.

There was a lot of critical commentary about the announcement, not just by hypocrite Republicans like John Beohner, but also by commentators on the left who feel Obama betrayed his commitment to campaign finance reform.

I for one can’t see how any candidate from either party can afford not to play by the deregulated rules of legalized bribery blessed by the Supreme Court. Like Obama’s campaign manager said, “unilateral disarmament” in the face of a massive attack of big money makes no sense. Our electoral system now assures the survival only of the financially fattest.

But will Obama really fight for the 28^th Amendment? It’s one thing to endorse the concept and quite another to press for a change in the Constitution that would strip the corporate establishment of its power to elect candidates and dictate laws. The President has the bully pulpit and phenomenal power, but like the rest of us, he can't hope to pass any laws if corporations maintain a hammerlock over the legislative branch. No one knows better than he how the powerful insurance lobby turned health care reform into a corporate boondoggle. If President Obama thinks there oughta be a law, any meaningful law, in his second term, he's going to have confront Citizens United.

Citizens United / Congress / Harvey Column / Supreme Court / Uncategorized - 02/13/2012

There Oughta Be A Law…. But There Won’t Be Unless We Change the Constitution

Are you one of those people who are constantly saying “there oughta be a law”? I am - which is probably why I ended up a consumer advocate.

Some pretty lofty assumptions about democracy are built into that quaint phrase, if you think about it. For one, it assumes that law is a good way to resolve disputes (as compared, say, to fists or guns). Also, that everybody will obey the law. Perhaps most obvious, when someone says, “there oughta be a law,” they’re asserting our right as Americans to make things better for ourselves by getting the legislative branch to address an issue of public importance.

Indeed, the "the right of the people...to petition the Government for a redress of grievances" is built into the First Amendment - the same amendment that five members of the United States Supreme Court pretty much erased from the Constitution in the Citizens United case two years ago.

By now, everyone understands that by giving corporations the same First Amendment rights as humans, and then ruling that spending money to influence elections is a form of “free speech,” the Supreme Court in Citizens United unleashed a tsunami of corporate money that will drown out the voices of 99% percent of Americans in favor of the 1% who have the wealth to determine who wins elections. “Free” speech can’t compete with hundreds of millions of dollars of paid propaganda.

What’s not been much discussed is how the Supreme Court decision actually conflicts with the rest of the First Amendment: it has negated our right to petition government for a redress of grievances.

Consider another Supreme Court-imposed debacle: in 2011, the high court ruled that consumers who sue big companies in class actions can be thrown out of court and forced to go into “arbitration” – a system in which the company hires private “judges” to determine whether the company broke the law. The Federal Arbitration Act specifically says that arbitration doesn’t apply if the arbitration clause violates a state’s consumer protection law. But the Supreme Court refused to recognize that exception. The case is Concepcion v AT&T Mobility. In that lawsuit, consumers challenged AT&T for adding extra charges to the purchase of a cell phone that the company had advertised as “free.” The decision – another enormous victory for big corporations – strips American consumers of their right to hold a company accountable for rip-offs big or small.

Unlike the Court’s ruling in Citizens United, which interpreted the US Constitution, Congress could easily amend the Federal Arbitration Act to reverse the Concepcion decision. But will it? Forget about the House of Representatives: it’s controlled by corporate Republicans who are owned by the cell phone companies. (The House was close to passing a bill that would have allowed telemarketers and debt collectors to call consumers’ cell phones with recorded messages. A huge public outcry delayed the legislation.)

But in the Democrat controlled US Senate, a bill to override the Supreme Court’s arbitration ruling has only fifteen cosponsors.

In California, we are lucky to have the ballot initiative, which allows us to take matters into our own hands when state legislators are too beholden to special interests to deal with important issues. Using the initiative process, California voters passed Proposition 103 to restrain price gouging by auto, home and business insurance companies. My colleagues at Consumer Watchdog are now proposing an initiative to put health insurance premiums under Proposition 103’s controls. But even the people’s initiative process has been corrupted by corporate money. And attempts to ban corporate interference in ballot initiative campaigns ran smack into, once again, a decision by the United States Supreme Court.

Indeed, you don’t have to be an astute observer of politics to know that corporate money has long corrupted politics. Our report, “Sold Out: How Wall Street and Washington Betrayed America” (PDF), published in March 2009, got right to the bottom line in its title. Between 1998 and 2008, Wall Street invested $5 billion in Washington, a combination of money for lobbying and campaign contributions that won deregulation and other policy decisions that enabled the financial industry to do as it pleased. The ensuing orgy of unbridled speculation came to a halt in 2008 when the financial industry threatened to shut down the system unless they got trillions of dollars in loans, tax breaks and other taxpayer bailouts.

Laws regulating corporate spending in elections and lobbying were intended to limit the damage to democracy. Some, including me, would argue that they didn’t work anyhow. But Citizens United has eliminated any chance of righting the imbalance of political power between corporations and human beings short of changing the United States Constitution itself. We’re proposing exactly that: a 28^th Amendment to the Constitution that reads “The protections of the First Amendment that apply to the spending of money on lobbying and elections, whether by contributions, expenditures or otherwise, shall extend only to human beings.” Join us right now.

Citizens United / Harvey Column - 02/06/2012

Is There a Secret White House Memo on Corporate Control of our Country?

An internal White House memo in 2010, just before the Supreme Court’s outrageous decision in Citizens United, suggested President Obama address the influence of money in politics. Other items crowded his agenda instead, but this election year President Obama would be wise to take up the citizen call for a 28^th Constitutional Amendment to end the corruption caused by the Court’s corporate personhood decision.

First, some important background on the 2010 memo. It used to be that a history of a presidential administration would await the president’s departure, but in recent years mid-term profiles have become the norm. Bob Woodward chronicled the Bush White House with four books, and Ron Suskind’s “Confidence Men,” published last year, captured President Obama’s errors in strategy and communications. Both authors had access to sources close to the top of the White House. But this week’s New Yorker takes the genre to a new level. Ryan Lizza’s “The Obama Memos” is a fascinating analysis of the Obama presidency that relies greatly on White House memos that Lizza somehow obtained. One of them, the transition team’s memo to the president-elect in 2008 on the economy, is available in its entirety for download on the New Yorker site.

It was another memo, excerpted in a sidebar, that really got my attention. It was from the President’s political advisers, in late December 2009 according to Lizza, and listed “ideas on how on how try and recapture some of the anti-Washington spirit of his 2008 campaign” in the President’s 2010 State of the Union address. One of the suggestions in the memo anticipated the Supreme Court’s decision in the Citizens United case.

Campaign Finance reform: By the time of the SOTU [State of the Union], the Citizens United case will have been handed down and at the time of the decision will likely make an announcement on our response/plans. We could use the SOTU opportunity to push the ball forward on whatever proposal we put forward, calling on Congress to act by a ‘date certain’ or further fleshing out our proposals.

The Court handed down its decision on January 21, just a week before the State of the Union speech. Of course, no one expected the decision to cement into American Constitutional law the proposition that corporations have the same First Amendment rights as human beings and that spending money to influence elections is a form of free speech. So when the advisers referred to the White House's “response/plans,” it was not clear what kind of decision they were expecting, or what they thought they could do about it.

We now know that the only thing that can be done about Citizens United is for the American people to join together to overrule it, by passing the 28^th Amendment to the Constitution, such as the one we have proposed.

Meanwhile, the President had something to say about corporate money in politics at the end of his State of the Union speech on January 27, 2010, and it stirred quite a controversy. He began by noting that a byproduct of the 2008 financial collapse was the public’s loss of confidence in government of, by and for the people:

We face a deficit of trust -– deep and corrosive doubts about how Washington works that have been growing for years. To close that credibility gap we have to take action on both ends of Pennsylvania Avenue -- to end the outsized influence of lobbyists; to do our work openly; to give our people the government they deserve.

Then, with members of the Supreme Court seated right in front of him, he slammed the Court’s ruling in Citizens United:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems.

It was a powerful moment, to be sure, though hardly the assault on the Court that it was subsequently described as, at least in some quarters.

What happened next created the evening’s drama. Supreme Court Justice Samuel Alito, who had voted in favor of the Court’s ruling, took it upon himself to provide some instant analysis. Cameras caught Alito angrily mouthing the words “not true” in response to Obama’s critique. The New York Times recalled the moment recently.

Whatever the President or anyone else thought that night about the week-old decision, it has since opened the floodgates of corporate money while individual Americans – I’m referring to the human beings who cast ballots, not so-called "corporate citizens" – have become bystanders. Decades-old laws limiting the influence of big money in politics have fallen, with few exceptions – one of which I wrote about last week.

It’ll likely be a few years before we get to read the memos that his political team is forwarding President Obama this year. But focus on Citizens United and the power of corporations to determine the outcome of supposedly “free” elections in what is proudly hailed as the world’s greatest democracy is certainly consistent with the themes of government accountability and the ninety nine percent vs. the one percent that are dominating public discourse and even the debates between the pro-corporate Republican presidential candidates. Obama would find a welcoming, bipartisan audience for the 28^th Amendment. Let’s see how far he’s prepared to go.

Citizens United / D.C. Disconnect / Harvey Column / Outrage / President Barack Obama / Supreme Court - 01/30/2012

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.

Citizens United / Harvey Column / Outrage / Supreme Court - 01/23/2012

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

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.

Support 28A, constitutional amendment overturning U.S. Supreme Court “Citizens United” ruling to stop the flood of toxic corporate cash poisoning our democracy
Prosecute Wall Street crime, not Wall Street protestors
Give citizens same right to borrow taxpayer money from the Fed at the same low interest rates that Wall Street got in the bailout
Cap bank fees and interest rates
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
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.
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.
Restore traditional separations between federally guaranteed consumer banking from other, riskier, financial business.
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/

Action / Citizens United / Congress / Foreclosure / Martin Column / Supreme Court - 10/20/2011