James Clay Fuller

Things We're Not Supposed to Say

Wednesday, February 03, 2010

Extreme Court wrote law it wanted

On Jan. 21, 2010, the Supreme Court of the United States handed the members of a tiny, almost exclusively male club the ability to amplify their already too-powerful voices in the country's political arena to the point that they can, at will, drown out all other voices.

Corporations, which is to say top-level executives, have the right to spend unlimited amounts of company money to support candidates of their choice in political campaigns, the court said.

Members of that little club -– membership determined solely by massive wealth -- don't even have to be citizens of the United States.

By acting through businesses incorporated in this country, an oil sheik from Saudi Arabia or the government of China can have more to say about who is elected to run our government than millions of U.S. citizens, as individuals or groups. Money absolutely determines who is elected to office in this country of half-educated, television-benumbed, badly led voters.

Right wing pundits and various Pollyannas to the contrary, that is not hyperbole. It is fact. If you are not one of the elite, but find your glass still half full, the content of that glass is poisoned Kool-Aid.

The decision to allow unfettered campaign spending by corporations was committed by five proud right wing activists among the nine justices.

Make that four proud right wing activists and one man, Thomas, who always votes with them for unfathomable reasons that appear to be rooted in constant rage.

The decision hangs on a legal fiction, the personhood of corporations, that was almost accidentally arrived at in the nineteenth century and gradually and carelessly strengthened over the years. Even so, the doctrine of corporate personhood never until Jan. 21, 2010, meant what the court of Chief Justice John Roberts said it means.

Justice Roberts and the court's other warriors of the right made a carefully calculated move to advance their political and social goals. Legal experts not financially and ideologically attached to right-wing organizations widely agree that the case that was the basis for the decision, Citizens United v. the Federal Election Commission, did not call for such a far-reaching conclusion.

In its ruling, the court overturned roughly a century of precedent -– numerous previous rulings that allowed Congress to establish restrictions on corporate spending on political campaigns.

The majority explained the hurry-up by claiming the situation was a “legal emergency” but offered no serious explanation or evidence to support that claim.

To get to where they wanted to go, Roberts and Co. took a case that, in the eyes of numerous Constitutional law experts I've heard and read, begged to be decided on a quite narrow, technical question. Instead, the court made a sweeping declaration that all restrictions on corporate campaign spending are illegal.

It was in such a rush that, as the New York Times said, it moved “at breakneck speed,” giving lawyers just a month to prepare their briefs on a complex issue -– much less than is usual -– and even held hearings during its vacation period.

Roberts and his group had something it wanted to do, and it's logical and reasonable to conclude from their actions that they knew what that was before they read the briefs or heard the arguments.

The court majority made law, it did not interpret law.

It's members haven't admitted political motivation, of course, nor will they. There simply is no other rational explanation for what occurred.

Look at the players in this tragic farce:

Roberts was known to openly favor the interests of corporations and very wealthy individuals over the interests of ordinary citizens long before his appointment by George W. Bush to the Supreme Court.

As a judge, Roberts took at least two questionable stands against environmentalists and for corporations accused of polluting the environment and breaking environmental laws. As a lawyer he worked pro bono (taking no fee) to break a Colorado state constitutional amendment protecting gay rights. He was closely involved for some time with the right-wing Federalist Society but during his confirmation hearings denied ever being a member. His decisions and his activities as a lawyer show him as a fighter for the powerful and dismissive of individual rights. Roberts was a legal adviser to Jeb Bush during the election debacle of 2000, helping him to find ways to give the Florida vote to Bush's brother George.

At his confirmation hearings in 2005, the unmistakably smug Roberts repeatedly testified, often sporting his trademark smirk, that he would be “conservative” in deciding matters of law and very, very respectful of precedence. He lied and, given his behavior since joining the bar, it was obvious that he lied. He already personified the “activist” judge. Millions of us were disgusted with Democrats who joined in the 78-22 confirmation vote.

In 2000, Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas voted to hand the presidency to George Bush in what was, obviously to almost all of America, a purely political decision. No further detail is needed.

The fifth vote in January to give corporations complete freedom to buy elections was cast by Samuel Alito Jr., a George W. Bush appointee. During his confirmation hearings four years ago, Alito also promised, falsely, to interpret law, not make it, to be respectful of precedence and to be anything but political in his consideration of law. Since joining the court, he has taken an unfailingly right wing approach and brought new energy to the term “activist judge.”

Much has been written about Alito's obvious anger and mouthing of the words “not true” (I lip-read it as “simply not true”) when President Obama criticized the court's January decision during his state of the union speech. I half expected Alito to add “boy” to the sentence.

But in truth, Roberts' reaction was more telling: Roberts sat tall and smirked; he had won for the rich and powerful, those he clearly sees as the country's rightful rulers, and he damned well took pride in that. Watch the video.

Even retired Justice Sandra Day O'Connor, a conservative who has been deeply reluctant to criticize the court, allowed the other day that the Jan. 21 decision was not a good one and that one result is likely to be “an increasing problem for maintaining an independent judiciary,” because big-money interests undoubtedly will greatly influence the elections of judges.

The Roberts majority maintained in its ruling that to keep corporations from unrestrained campaigning for specific candidates is contrary to the First Amendment right of free speech.

That's false on the face of it, because the individuals who make up a corporation -– U.S. citizens, anyway -– have and always have had as much right as anyone else to speak up on behalf of politicians they favor and against those they don't like. Forbidding direct corporate participation in campaigns does not in any way limit the rights of those living, breathing individuals.

I can publicly declare that Minnesota's absentee governor, Tim Pawlenty, is a heartless servant of billionaires and send contributions to any candidate who runs against him. Brian Moynihan, CEO of Bank of America, can say that Barack Obama is a revolution-seeking Marxist and can contribute to the campaign of anyone who runs against the president. That was true before this court decision. He and I and you and Aunt Sophie all had those rights and have them still.

Our Supreme Court now says, however, that Moynihan and others of the Corporate Rich Guy Club have rights that go a thousand times beyond your rights and mine and those of Aunt Sophie. They have a right to blare their opinions so loudly that other voices disappear under the din.

Not so incidentally, the Moynihans of the world get to decide who they shout for and against with the corporate loudspeakers. Under the law written by Roberts, Scalia, Kennedy, Thomas and Alito, there is no requirement that the super rich guys at the top of big corporations have to consult their employees or even their shareholders on which politicians to back.

Big business is fond of claiming in its advertising that “we are our people” or some such crap. Have any of you who have worked for corporations ever been consulted by the top-tier executives about what political stances the company should take?

Shareholders, including those who hold shares through mutual funds, have real financial stakes in corporations. I've owned corporate shares in small quantities since I was in my early 20s. I've yet to have any executive or representative of any company ask my permission before spending corporate millions to lobby for or against various bills and laws.

The Supreme Court did not explain why top-level corporate executives have a “right” to spend your money and mine to buy politicians they favor, even though we may oppose those politicians.

(That raises some very interesting questions about what corporate stock ownership really means, but don't look for any straight answers anytime in this century.)

Why do corporations have First Amendment rights? the naïve citizen asks.

Because, the Roberts court says, it is established through much law and many decisions that in the United States, a corporation has the legal status of a person.

Only that ain't true.

Supporters of the Jan. 21 decision are disingenuously claiming that the four dissenters to that decision admitted in the dissent that corporations have such “personhood” status. Actually, the minority noted clearly that corporations have a “limited” status as persons. The majority conveniently forgot about the limitations.

The economic royalists also deliberately overlooked another fact pointed out by the court's dissenters: That numerous court decisions going back to the 1880s, but especially since 1908, have affirmed that Congress has the right to bar corporations from many political activities.

In fact, the establishment of the doctrine of corporation as person has a murky and dubious history. The first declaration of that doctrine apparently was made by one Supreme Court justice, Morrison Remick Waite, in 1886.

Despite the fact that the U.S. Constitution makes no mention of corporations, Waite issued his opinion in a lawsuit involve a county and a railroad. The decision was rendered without the court hearing arguments on the case, according to the book “The Post-Corporate World, Life After Capitalism” by David Korten. Other researchers agree.

In fact, Waite's decision, to be found on http://laws.findlaw.com/us/118/394.html states flatly that “the court does not wish to hear argument on the question” of whether corporations are entitled to “equal protection of the laws.” Equal to the protections offered individuals, that is. That decision referred to the Fourteenth Amendment, not the First.

Some reports and histories say that Waite's solo declaration may then have been amplified by a court reporter, who wrote that the Constitution, “which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations.”

In any case, the “personhood” of a corporation is undeniably a fiction. A corporation cannot serve on a jury, cannot hold public office, cannot be drafted into the military, does not go to jail for crimes committed –- and, in fact, neither do its officers, generally. Murders have been committed on behalf of corporations, but no corporate executive has ever been executed or sentenced to life in prison for those capital crimes.

A corporation cannot have all of the privileges of citizenship if it does not bear all the responsibilities of citizenship.

If the law does not recognize that simple fact, then the law is wrong and must be changed. If the Supreme Court refuses to recognize the reality, then the court should be somehow overturned, through legislation, through an alteration of the Constitution and/or through impeachment of the justices who denied the truth of the law for political reasons.

Up to now, the court has maintained that the rights of corporations are limited and can be further restricted “when there is compelling national interest” in establishing restrictions.

Preservation of the integrity of our electoral system would appear to be a compelling national interest.

But...Don't expect politicians, Democrat or Republican, to act. Certainly they will not move for impeachment. Almost as surely, they will do nothing to reestablish limits on corporate campaign spending; there probably aren't more than 40 members of Congress, both houses, willing to displease corporate funders to that degree.

We sink or swim without the help of politicians.