The Supreme Court Decision as an Opportunity for Real Change

by Sheila Musaji

When it was announced that the Supreme Court had ruled 5 to 4 in the Citizen’s United v. Federal Election Commission case that former rulings against unlimited expenditures by corporations and unions violated the First Amendment, I was very angry.  I, like many others thought immediately in terms like - democracy for sale, America for sale, the end of campaign finance reform, and that this was the worst Supreme Court decision since the Dred Scott decision which upheld slavery.  Corporations now have the same rights as individual citizens - and in an age of multi-national corporations, and with many corporations having majority interests owned by individuals, organizations and countries overseas - this means that non-citizens may have in the case of corporate non-citizens the same rights as individual citizens of the U.S.  Perhaps we are now in a situation where we need to edit the Declaration of Independence to read: instead of “of the people, by the people, for the people” - “of the corporations, by the corporations and for the corporations.”  Perhaps our elected leaders should now be referred to something like this:  Senator John Doe (D/Halliburton), Senator Mary Doe (R/Bank of America).

I am still angry, but attempting to make sense of this from a logical point of view, to understand the issues at stake and to figure out what the best method of avoiding the worst excesses that this may lead to might be.  We know we have a problem, and this decision has made it worse, but how can the problem be fixed within the constraints of the Constitution?  I pretty much agree with David Kairys position that Money Isn’t Speech and Corporations Aren’t People and with Justice Stevens who wrote in his dissenting opinion “The court’s blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve.” Stevens also wrote that the majority’s position “would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.”  Stevens full dissenting opinion can be read here

Before this decision we knew that we needed campaign finance reform and that large corporations had too much influence on our government through their lobbies.  The recent attempt to reform health care and its sidetracking by huge amounts of money thrown into lobbying by large drug companies is only one example. 

In reacting to this decision President Obama said that the decision “strikes at our democracy itself.” “It gives the special interest lobbyists new leverage to spend millions on advertising to persuade elected officials to vote their way - or to punish those who don’t,” Obama said, calling the ruling “devastating.  ...  The President promised a “forceful, bipartisan response” in Congress to “repair the damage that has been done” by the ruling, which Sen. Chuck Schumer (D-N.Y.) Saturday called “one of the worst decisions I have seen in a hundred years.”

Nice words, but after watching what has happened to all the nice words played out in actual actions in the real world during this past year I wouldn’t hold my breath that either the President or any of our elected officials will be the ones to help us to regain our Constitutional rights.
 
Ben Heineman gives an excellent summary of the 183 page Supreme Court ruling:

“In declaring unconstitutional Congress’ limits on independent expenditures advocating the election or defeat of a candidate by unions and corporations in a brief period (30 or 60 days) before an election, the Court majority (Justices Kennedy, Alito, Scalia, Thomas and the Chief Justice) stated in essence:  —Political speech is at the core of the First Amendment.  —Curbs on such speech can only be sustained by a compelling state interest.  —Corporations and unions have the same free speech rights as individuals.  —The Congressional interests—- in protecting against corruption, against distortion of the political process and against use of corporate or union funds for political purposes not approved by shareholders or members—were not sufficiently compelling to justify the free speech restriction on corporations and unions.      The majority left untouched Congressional prohibitions on direct corporate or union contributions to candidates because, as decided in 1976 in Buckley v. Valeo, such contributions constituted a real threat of quid pro quo corruption.”

Jeffrey Toobin summed the decision up even more succinctly

“But Justice Anthony Kennedy’s opinion blithely overturned Court precedent, and rejected the work of the elected branches—all in service of the bizarre legal theories that (1) corporations have the same rights as human beings, and (2) spending money is the same thing as speaking. This was judicial activism of the most egregious kind. Indeed, it wasn’t as much a judicial opinion as it was Republican talking points.

Anger towards this decision seemed the only reasonable response, but then as I read commentaries by correspondents that I respect, I began to see that it might be that the response required to change the direction our country is heading because of this decision may be more nuanced than I had originally thought.  Here are a few quotes from important articles on this subject which need to be pondered: (NOTE: all highlighting is mine)

”...  I do think corporate influence is one of the greatest threats we face—but, ultimately, it’s because I don’t believe that restrictions on political speech and opinions (as opposed to other kinds of statements) can ever be justified that I agree with the majority’s ruling. There are reasonable arguments on all sides of that question.  ...  The “rule of law,” however, means that if the Constitution or other laws bar X, then X is not allowed regardless of how many good outcomes can be achieved by X.  That was true for the “crisis” of Terrorism, and it’s just as true for the crisis of corporate influence over our political process.  Whatever solutions are to be found for either problem, they cannot be ones that the Constitution explicitly prohibits.  That’s what “the rule of law” means.  ... “ Glenn Greenwald

“I’m just enough of a First Amendment fundamentalist to believe that there are plausible arguments for allowing corporations to make political contributions; just enough of a realist to think that it might not make as much difference as a lot of people think; and just enough of a cynic to think that corporations might not be as eager to spend huge pots of political money in plain view of their customers as you might suppose. On the other hand, I’m not credulous enough to think that modern multinational corporations are mere voluntary assemblies of concerned citizens who deserve to be treated the same way as the local PTA. The world is what it is, and in a practical sense corporations have such enormous power that it would be foolhardy in the extreme to think that we can just blindly provide them with the same rights as individuals and then let the chips fall where they may.    In the end, I guess I think the court missed the obvious — and right — decision: recognizing that while nonprofit corporations created for the purpose of political advocacy can be fairly described as “organized groups of people” and treated as such, that doesn’t require us to be willfully oblivious to the fact that big public companies are far more than that and can be treated differently. Exxon is not the Audubon Society and Google is not the NRA. There’s no reason we have to pretend otherwise.”  Kevin Drum

“Yesterday’s 5-4 decision by the U.S. Supreme Court in Citizens United v. Federal Election Commission shreds the fabric of our already weakened democracy by allowing corporations to more completely dominate our corrupted electoral process. It is outrageous that corporations already attempt to influence or bribe our political candidates through their political action committees (PACs), which solicit employees and shareholders for donations.    With this decision, corporations can now directly pour vast amounts of corporate money, through independent expenditures, into the electoral swamp already flooded with corporate campaign PAC contribution dollars. Without approval from their shareholders, corporations can reward or intimidate people running for office at the local, state, and national levels.”  Ralph Nader

“This week’s Supreme Court ruling that corporations are protected by “free speech” rights and can contribute enormous sums of money to influence elections is a de jure endorsement of the de facto dominance of corporations over our lives. Indeed, corporations are the new citizens of this country, and ordinary Americans, who used to be known as “citizens,” now fall into three categories: consumers, warriors and prisoners.”  William J. Astore

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“So we have a government fused with corporations, a legislature run by corporate lobbyists who have just been given a massive financial gift to control the process even more deeply; we have a theory of executive power advanced by one party that gives the president total extra-legal power over any human being he wants to call an “enemy combatant” and total prerogative in launching and waging wars (remember Cheney did not believe Bush needed any congressional support to invade Iraq); we have a Supreme Court that believes in extreme deference to presidential power; we have a Congress of total pussies on the left and maniacs on the right and little in the middle; we have a 24-hour propaganda channel, run by a multinational corporation and managed by a partisan Republican, demonizing the president for anything he does or does not do; we have the open embrace of torture as a routine aspect of US government; and we have one party urging an expansion of the war on Jihadism to encompass a full-scale war against Iran, an act that would embolden the Khamenei junta and ensure that a civilizational war between the nuttiest Christianists in America and the vilest Islamists metastasizes to Def Con 3.  There’s a word that characterizes this kind of polity. It’s on the tip of my tongue ... “[url=http://andrewsullivan.theatlantic.com/the_daily_dish/2010/01/the-scotus-decision.html]Andrew Sullivan

“Great works of literature have dealt with the erosion of personal rights as usurped by institutions of power.  The likes of George Orwell, his classic 1984, envisioned the enemy of personal freedom as socialist dictatorship.  Orwell did not live in a world wired together by CNN and the internet.  He could not have imagined an era of newspapers in decline and news organizations owned by corporations.  He saw armies in perpetual war, fighting for anonymous governments oppressing personal liberty.  As recent as the 1960s, Dwight D. Eisenhower spotlighted a Military Industrial Complex eager to function as invisible government.  The last foothold on rights dedicated to individuals is being redacted.  Private entities are maneuvering to claim Constitutional rights intended for individuals- people: not banks, insurance companies, energy purveyors and special interest groups.  When they cannot buy power, they send in the lawyers to claim it.  Witness the economy and public dissatisfaction, then understand why the faltering corporate world is scrambling to tie up loose ends.” C.M. Barons

“The UK’s BP bought Amoco for $48 billion - now Amoco’s profits go to England. Deutsche Telekom bought VoiceStream Wireless, so their profits go to Germany, which is where most of the profits from Random House, Allied Signal, Chrysler, Doubleday, Cyprus Amax’s US Coal Mining Operations, GTE/Sylvania, and Westinghouse’s Power Generation profits go as well. Ralston Purina’s profits go to Switzerland, along with Gerber’s; TransAmerica’s profits go to The Netherlands, while John Hancock Insurance’s profits go to Canada. Even American Bankers Insurance Group is owned now by Fortis AG in Belgium.    Foreign companies are buying up our water systems, our power generating systems, our mines, and our few remaining factories. All because “flat world” so-called “free trade” policies have turned us from a nation of wealthy producers into a nation of indebted consumers, leaving the world awash in dollars that are most easily used to buy off big chunks of America. As http://www.economyincrisis.com notes, US Government statistics indicate the following percentages of foreign ownership of American industry: ... (read the article for the frightening list)” and as Thom Hartman Thom Hartmann (in 2006)

“The civic, patriotic and political language we use to describe ourselves remains unchanged. We pay fealty to the same national symbols and iconography. We find our collective identity in the same national myths. We continue to deify the Founding Fathers. But the America we celebrate is an illusion. It does not exist. Our government and judiciary have no real sovereignty. Our press provides diversion, not information. Our organs of security and power keep us as domesticated and as fearful as most Iraqis. Capitalism, as Karl Marx understood, when it emasculates government, becomes a revolutionary force. And this revolutionary force, best described as inverted totalitarianism, is plunging us into a state of neo-feudalism, perpetual war and severe repression. The Supreme Court decision is part of our transformation by the corporate state from citizens to prisoners.”  Chris Hedges

“Moreover, the difference between Goldman, Sachs making a video and buying time for it on television, and a group of middle managers at firms like Goldman, Sachs forming a PAC and doing the same thing is not entirely clear to me. Because the top one percent of individuals in the US owns over 40% of the country’s privately held wealth and takes home 20% of its income every year, those roughly 1.3 million persons already had lots of means of influencing campaigns. Videos are not that expensive to make and even television time is inexpensive for executives in a firm that gives out $40 billion in Christmas bonuses. In other words, given the extreme maldistribution of wealth in the US, the corporate sector already had things stacked in its favor through wealthy persons employed by corporations. Jeffrey Toobin on CNN pointed out that in a congressional race, a million dollars is a lot of money, but would be chump change for a corporation. But it would be chump change for a lot of corporate executives, too.  ...  For all these reasons, a much greater danger to the republic than the anointing of corporations as persons with the right to flood our airwaves with propaganda is any attack on Net Neutrality. Net Neutrality is the principle that my blog is inexpensive to publish and to access, so that I and my readers have the same advantages in this regard as a corporation would. If the Right Wing ever manages to scale the internet and make me pay $70,000 a year to put up this blog and have it easily available to my readers, it will kill it and would signal a return to push media like the networks. And a push-media world where corporations own the Web and can push at us what they please, including their weird ideas about political reality, really would be Orwellian and dangerous.  This horrible ruling, bad as it is, is not the Waterloo of democracy. The abolition of Net Neutrality would be.”  Juan Cole

Juan Cole raises an important point especially since although no one government or company owns the internet, there are many corporations who own or control key aspects of the internet.  And, he might have added that the top 20% of the population controls 85% of the country’s wealth which means the other 80% of us are at a serious disadvantage.

According to How Stuff Works “Today, several large corporations provide the routers and cable that make up the Internet backbone. These companies are upstream Internet Service Providers (ISPs). That means that anyone who wants to access the Internet must ultimately work with these companies, which include:  UUNET, Level 3, Verizon, AT&T, Qwest, Sprint, IBM.  Then you have all the smaller ISPs. Many individual consumers and businesses subscribe to ISPs that aren’t part of the Internet backbone. These ISPs negotiate with the upstream ISPs for Internet access. Cable and DSL companies are examples of smaller ISPs.  ...  There are several organizations that oversee the Internet’s infrastructure and protocols. They are: — The Internet Society: A nonprofit organization that develops Internet standards, policies and education.  — The Internet Engineering Task Force (IETF): An international organization with an open membership policy that has several working groups. Each working group concentrates on a specific topic, such as Internet security. Collectively, these working groups try to maintain the Internet’s architecture and stability.— The Internet Architecture Board (IAB): An IETF committee, the IAB’s mission is to oversee the design of Internet protocols and standards.— The Internet Corporation for Assigned Names and Numbers (ICANN): A private nonprofit corporation, ICANN manages the Internet’s Domain Name System (DNS). ICANN is responsible for making sure that every domain name links to the correct IP address.  ...  ICANN, on the other hand, is a private organization. The exclusive nature of ICANN concerns some people. They argue that ICANN holds a lot of power over anyone who wants to register a domain name. ICANN makes money by accrediting vendors called registrars. These registrars then sell domain names to consumers and businesses. If you want to register a specific domain name, ultimately ICANN decides if you can have it.”

A number of groups are now forming to work to overturn the effects of this Supreme Court Decision, an excellent information page with links to various efforts is at http://reclaimdemocracy.org/corporate_speech/amendment_campaigns_launch.php and http://www.freespeechforpeople.org/   

Public Citizen (Ralph Nader’s group) is advocating a constitutional amendment.  In their statement responding to the decision, Public Citizen’s leaders demanded public financing of congressional elections, and added,

“Public Citizen will aggressively work in support of a constitutional amendment specifying that for-profit corporations are not entitled to First Amendment protections, except for freedom of the press. We do not lightly call for a constitutional amendment. But today’s decision so imperils our democratic well-being, and so severely distorts the rightful purpose of the First Amendment, that a constitutional corrective is demanded.    We are formulating language for possible amendments, asking members of the public to sign a petition to affirm their support for the idea of constitutional change, and planning to convene leading thinkers in the areas of constitutional law and corporate accountability to begin a series of in-depth conversations about winning a constitutional amendment.”

The Free Speech for People petition requesting a Constitutional Amendment may be a way to at least take us back to where we were before this decision.

WHEREAS the First Amendment to the United States Constitution was designed to protect the free speech rights of people, not corporations;
WHEREAS, for the past three decades, a divided United States Supreme Court has transformed the First Amendment into a powerful tool for corporations seeking to evade and invalidate democratically-enacted reforms;
WHEREAS, this corporate takeover of the First Amendment has reached its extreme conclusion in the United States Supreme Court’s recent ruling in Citizens United v. FEC;
WHEREAS, the United States Supreme Court’s ruling in Citizens United v. FEC overturned longstanding precedent prohibiting corporations from spending their general treasury funds in our elections;
WHEREAS, the United States Supreme Court’s ruling in Citizens United v. FEC will now unleash a torrent of corporate money in our political process unmatched by any campaign expenditure totals in United States history;
WHEREAS, the United States Supreme Court’s ruling in Citizens United v. FEC presents a serious and direct threat to our democracy;
WHEREAS, the people of the United States have previously used the constitutional amendment process to correct those egregiously wrong decisions of the United States Supreme Court that go to the heart of our democracy and self-government;
NOW HEREBY BE IT RESOLVED THAT WE THE UNDERSIGNED VOTERS OF THE UNITED STATES CALL UPON THE UNITED STATES CONGRESS TO PASS AND SEND TO THE STATES FOR RATIFICATION A CONSTITUTIONAL AMENDMENT TO RESTORE THE FIRST AMENDMENT AND FAIR ELECTIONS TO THE PEOPLE.

However, taking us back to where we were is not going to solve the problem.  We need campaign reform and we need to find a way for “We the People” to have meaning again.  President Eisenhower warned against a military-industrial complex subverting democracy and the will of the people. Robert F Kennedy warned Americans to keep the greed of corporations from unduly influencing public lawmaking.

”... This conjunction of an immense military establishment and a large arms industry is new in the American experience. The total influence – economic, political, even spiritual – is felt in every city, every Statehouse, every office of the Federal government. We recognize the imperative need for this development. Yet we must not fail to comprehend its grave implications. Our toil, resources and livelihood are all involved; so is the very structure of our society.    In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.    We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.  ...” Dwight Eisenhower

They were not the first to give this warning:

“The concentration of modern business, in some degree, is both inevitable and necessary for National and international business efficiency. But the existing concentration of vast wealth under a corporate system, unguarded and uncontrolled by the Nation, has placed in the hands of a few men enormous, secret, irresponsible power over the daily life of the citizen - a power insufferable in a free government and certain of abuse.”  “This power has been abused, in monopoly of National resources, in stock watering, in unfair competition and unfair privileges, and finally in sinister influences on the public agencies of State and Nation. We do not fear commercial power, but we insist that it shall be exercised openly, under publicity, supervision and regulation of the most efficient sort, which will preserve its good while eradicating and preventing its evils.”  Teddy Roosevelt

And they haven’t been the last to give this warning:

”“The biggest threat to American democracy is corporate power.  There is vogue in the White House to talk about the threat of big government. But since the beginning of our national history, our most visionary political leaders have warned the American public against the domination of government by corporate power. That warning is missing in the national debate right now. Because so much corporate money is going into politics, the Democratic Party itself has dropped the ball. They just quash discussion about the corrosive impact of excessive corporate power on American democracy.”  Robert F. Kennedy, Jr.