James Clay Fuller

Things We're Not Supposed to Say

Wednesday, February 03, 2010

Another day that will live in infamy

“...and that government of the people, by the people, for the people, shall not perish from the earth.”
-- Abraham Lincoln, Nov. 19, 1863; “The Gettysburg Address.”

It's a good idea, I think, to take out a sizable piece of white paper and write on it in bold, black lettering this date: January 21, 2010. Then, with or without frame, hang it somewhere in your home where you will see it daily.

If you're clever with computers, perhaps you can get yourself a presentable printout to frame. You might want to add a simple elucidation. The piece of printer paper I've pinned temporarily to the wall in my office carries, under the date, the words “Roberts court kills U.S. democracy.”

I was angry and hurried when I did that. The date may be sufficient. The truth is that the court merely injected the final, fatal dose of poison into the veins of a representative democracy that already was critically sick. It will be a lingering death, probably with occasional spurts of what look like potential returns to health.

January 21, 2010.

It is a date as important as any we were required to memorize as school children. It is far more significant than the ubiquitous 9/11. The latter is a political expedient, a rallying cry for demagogues who lead their thoughtless followers by means of fear and lies. January 21, 2010 is a day on which, truly, this country changed drastically for the worse, and probably for the remainder of its existence.

That is not exaggeration, not hyperbole, as I trust Americans are beginning to realize.

Some people, supporters of the power of wealth and the tweedy sort of (figuratively) pipe sucking academics who want always to appear serene and ever so objective, dismiss the importance of the court decision on the grounds that corporations already have so much power a little more won't make much difference.

One answer to that is that, yes, corporations – that is, the highest level of corporate executives – have too much political power. We need to take away some of that power. If members of a gang carrying knives confront us on the street and demand everything we have, we don't immediately go to our government and plead with it to provide the gangsters with guns because they are inadequately armed.

Another answer is that the decision by the Corporate Five on the court is, without question, a signal to those whom they serve that even the thin gloves they wear now can come off. Whatever the corporate leaders choose to do to win and hold decisive power over our government, presumably short of open physical intimidation, this court will support. If representative democracy is to function in this country, we cannot allow that.

If, as I now hope, there is a rebellion – I do hope for a bloodless rebellion – in this country, that date will be the rallying cry. If, as is almost certain, there is no rebellion, it will be the date we will have to point to as the day that signaled that there was no future for government “of the people, by the people and for the people.”

The next two articles below deal in more detail with the Extreme Court's decision of Jan. 21, 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.

We'll pay for the court's excess

“Fascism should more appropriately be called Corporatism because it is a merger of the state and corporate power.”

...Benito Mussolini, founder of Italian fascism.

Government officials and the armies of pundits will not admit it – at least not in public – but the plain truth is that representative democracy in the United States is all but dead.

It will take a bit of time before it turns entirely to dust and collapses, but it is no more than a decaying zombie. By late this year, the advancing mortification will be unmistakable to anyone with clear eyes. By the middle of 2012, even the boobs will be able to see what's going on, if they care.

Mouthpieces for corporations and the economic elite are out and about now, cool and smiling, telling Americans that the widespread concern and anger over the U.S. Supreme Court's Jan. 21 decision that allows corporations to spend without restraint on political campaigns is greatly exaggerated.

Haughty and dismissive of critics, they sneer at the supposedly gaga liberals who say the decision is a disaster for democracy.

Given the fawning respect right-wing spokesmen get from todays faux reporters, and given the corporate-owned “news” media's disdain for liberals, the public undoubtedly will come rapidly to accept their message for a time, even as our governmental system disintegrates.

Who are you going to believe, your own eyes or the beautifully dressed, handsome, smooth talkers on television?

Americans choose television every time; that's part of how we got here.

Attack ads work. Unanswered and inadequately answered attack ads work absolutely. A massive campaign advertising a vicious darling of the right as a sweet fellow who has only your interests at heart also works, though not quite so well.

The Supreme Court has told the world's corporations that they may spend whatever it takes to overwhelm the voices of liberalism, that they are free to buy and control government in this country.

In fact, the consequences of the court's poisonous decision inevitably will be far broader and far worse than acknowledged by any of the politicians and pundits whose comments I've seen or heard.

* Many people are predicting a flood of corporate-financed attack ads against any politician who stands against anything any major business interest favors.

Of course they are right, though the flood may not be quite as bad this year as it surely will be in following years. It's a fair guess that many and perhaps most giant corporations, completely unleashed for the first time in the modern media era, will test the water this year, and refrain from a total assault across the country.

They'll want to figure out whether there will be a consumer backlash if they go too far – and figure out what is “too far.” They'll want to know how much honest reporting the vestiges of news operations will do on their activities and how much they can keep from the public. They'll want to conduct polls and other research to calculate finely just how far they can go.

And, probably, some executives will simply be intimidated at first by the freedom, uncertain of how to use it, like hormone-driven teenagers together in a safely private place for the first time. Learned inhibitions will hold back natural desire for awhile, but probably not for long.

Many millions of corporate dollars will be spent on the 2010 campaign, but they may be only a fraction of what will be poured into the elections of 2012 and thereafter, at least until the corporate hold on government is so complete as to be dent proof. After that, the political frontmen will have to work harder for a smaller share of the wealth, I'd guess.

* An inevitable result of the court's obviously political decision is one I've yet to hear anyone speak of: The disdain and, in truth, contempt it brings on the court itself.

Throughout my longish life, Americans have revered the Supreme Court even when we haven't agreed with its decisions. We have accepted it as the final arbiter of what our government can and cannot do, what we as citizens may and may not do. The 2000 decision to give the presidency to George W. Bush even though he did not win election did much harm to the court's standing with the public.

In the end, though, we accepted that patently partisan decision in the expectation that the court eventually would return to operating for and under law.

In fact, it has become even more politically motivated – remember how Republicans used to rail about “activist judges?” -- and millions of us hold the “justices” who participated in the Jan. 21 fraud in utter contempt. Three of the justices who handed the presidency to Bush also voted with the majority in the Jan. 21 travesty, thus demonstrating their fealty to ideology over law. We are justified in our contempt.

Reverence for the court? Not again for decades, if ever. It is just another right wing political body. When it screws us over, we must try to fight back, and if that means greatly reducing the court's power, so be it. If it takes altering the Constitution, let's try to do it. The court deserves no more referential treatment than any other piece of Republican party machinery.

This may well weaken the rule of law in this country. It is not our fault, but the doing of the court itself.

* Approximately 85 percent of all judges in America are elected. A majority of even the voting public ignore judicial races, and either don't vote or simply vote on the basis of name recognition. Incumbents always win unless they have achieved public attention through some egregiously bad behavior. But judicial campaigns still cost money.

It is henceforth amazingly easy, and pretty cheap, comparatively, for the corporate elite to buy our judges on all levels. Despite false protest from the right, it's extremely difficult now for individual citizens or even groups of citizens to win a legal fight against a large corporation. The businesses can afford to drag things out, to use the best legal help money can buy, to overwhelm the lowly citizen.

You can see how much easier that will be when the corporations have purchased the benches for those who sit upon them. Prepare your farewells to any vestiges of an honest judicial system.

* An obvious corollary to the point above is that businesses will be more eager to challenge citizens in court, and to challenge any regulatory law or, say, laws protecting employees or consumers from corporate wrongdoing. The likelihood of a corporate win in any such case will rise dramatically as soon as the hired judges are in place.

* In every story about the court decision, the corporate media equates “corporations and unions” as though they are equal players on the political field. Even the nuttiest of the teabaggers probably doesn't believe that, but it goes on. Labor unions can't raise one twentieth of the money that corporations can, and the unions are becoming weaker by the day as the right presses attacks against them.

Soon we'll see more stories equating MoreOn and other Internet-based liberal organizations with corporations and their trade organizations. The great majority of the public also will see that fiction for what it is. Labor unions and all of the money-raising liberal organizations together cannot raise half of what just one of the lobbying industries can spend on a campaign. To insinuate that they can play dollar for dollar against the combined powers of the pharmaceuticals, insurers, war industries, mining industry, lumber industry, and all the rest is wildly absurd.

But that's how the corporate press plays it; it must work for them to some degree.

* Although I've been avoiding most other comments on the Jan. 21 decision until I complete this piece, I am aware that while recognition was a little slow, a number of people now have pointed out that the Supreme Court – Justice Anthony Alito's insolence to the contrary – has opened the door to heavy foreign involvement in our electoral process. Hell, it blew away the door and the wall it hung in.

Aramco, the American subsidiary of Saudi Oil, is now free to play in our elections; it is a duly-registered American corporation. Several American corporations are owned by the government of China, and that country has pieces of many others. Bin Laden Construction operates legally (and as far as I know legitimately) in this country. So does an oil company in which the Bush family and the bin Laden family share ownership. Yes, really. The list is extremely long.

As Greg Palast of Greg Palast.com put it Jan. 22, “There is nothing that stops, say, a Delaware-incorporated handmaiden of the Burmese junta from picking a Congressman or two with a cache of loot masked by a corporate alias.”

Heavy spending by foreign interests, including foreign governments, to elect people who are favorable to them, or can be paid to be favorable to them, is certain. It will happen.

* Let's lump these: The essential facts are the same from a political standpoint. Among things that will not happen in Congress – or that will be reversed – because of massively increased corporate control of elections are these: Passage or enforcement of laws governing health and safety of workers; employee rights in labor organizing; laws requiring overtime pay; laws governing discrimination in employment because of sex, race, religious affiliation and sexual orientation; meaningful regulation of financial institutions; genuine health care reform; laws allowing reimportation of prescription drugs; serious regulation of insurance companies; meaningful improvement in laws governing the environment, clean air, clean water, preservation of wildlife habitat; protection of wilderness areas from lumbering and mining, and any other protections of natural resources against exploitation by corporations.

There will be some things done for show, and some existing laws will be enforced at their present levels for a while, but as corporate power grows, even those things will be pushed aside as unnecessary.

Some people do and will doubt that corporations would move forcefully in the mentioned areas. I do not understand that doubt. They are all situations on which corporations and their industrial associations have spent millions of dollars for lobbying. Why would they not press forward now that their advantage is greatly increased?

* The corporate world, often in alliance with the religious right, has been shoving its nose farther and farther into the tent of public education for decades. Look for that to accelerate. The corporate elite, as the brilliant comedic social commentator George Carlin long ago pointed out, does not want an educated American public. They want a trained workforce, able to run the machines that remain in this country, and to keep the books and stock the shelves; the last thing they want is millions of citizens capable of critical thought. Involvement in education will accelerate.

Even before the Jan. 21 decision, the religious anti-intellectuals of Texas had a big and growing effect on the contents of textbooks used throughout this country. The religious right controls the Texas Board of Education and Texas has a unified textbook purchasing system. If Texas wants science out and statements favorable to the religious right in a book, it often gets in or the publisher loses sales to all of Texas. In most areas, local school boards make book-buying decisions; a publisher will sell to all of Texas, even if it loses sales to local districts here and there. And the creationists are pushing again, even in places such as my native, generally educationally liberal Minnesota.

Corporations are happy to ally with the religious right if both get the kind of teaching they want. The children of the corporate elite do not go to public schools.

* Eventually, the relationship of the corporate elite and the religious right will change, but the shift probably will take a long time. The corporate hierarchy – highly educated, for the most part, and arrogant beyond measure – are, in private, extremely contemptuous of the spitting, shouting preachers and their bumpkin followers. The religious nuts are useful to the corporatists yet, but as the latter grow in open power, they'll undoubtedly get tired of catering in any way to people they see as hugely inferior. But we may be talking decades before an open split occurs.

* The “two party system” will continue. It's a handy fiction that keeps much of the great uninformed public relatively happy. Liberals will be almost entirely out, however. Not a huge change, since the billions of dollars in corporate lobbying money has long given the edge to right-leaning politicians. Now, however, we'll see the start of more and more openly dismissive treatment of genuine liberals who want public office. Give us exactly what we want or forget being elected to anything, the corporations will say, and they will be served. Liberals, already scarce, will become an almost extinct breed in the world of elected office.

* Let's not forget one of the biggest and worst of certainties resulting from the ability of corporations to buy elections: Settle down to perpetual war, people. War is immensely profitable, and profit is why we've been in Iraq for so long, and why we'll be there for some years yet and why we'll be in Afghanistan for many years yet and why we are almost certain to get into yet another unwinnable, perpetual war if and as the Iraq killing winds down. It's incredibly easy in this day of Fox Nooz and bent politicians and right wing preachers to drum up public support for yet another holy war, and with Congress bought and paid for, there's no stopping it. “We have always been at war with East Asia.”

The only thing George Orwell got wrong in “1984” was the year.

* There is a flood of ideas pouring out now from many irate liberal commentators, organizations and a few politicians. There are several small pushes now for Constitutional amendments. The public won't get behind any of them in meaningful numbers. The American public is past caring about much except taxes and, in a substantial minority, guns and Gawd.

Several bills have been suggested, some of them very sensible. Alan Grayson, the rich liberal from Florida, has introduced five bills, all of which would alleviate the situation to some degree. They won't pass, almost certainly won't even get hearings. Members of Congress are looking at who will contribute to their re-election campaigns and who might pour in millions against them.


* Speaking of corporate spending and legislative attempts at blocking corporate power in campaigns, one noble attempt looks like it should work, if it gets enough coverage from the corporate media. That is an attempt to bar corporations that have federal contracts from using their money to support political candidates. It is a supremely rational and righteous plan, and should run through Congress...maybe even with the support of two or three Republicans. Except...

The Roberts court still sits at the top of the pile. Given their history, there seems little to no chance that the five pimps would allow such a law to stand. If it comes to a test, they will do what they did on Jan. 21 – decide their course in advance and in favor of corporations over citizens and then create law to cover their decision.

* There already is a major rush from liberal organizations to raise money to fight the corporate takeover of elections and to combat right-wing candidates. Do what you like on that. I'm going to save my money to be used as best we can for the survival of my family. MoveOn, TruthOut, Progressive Democrats of America, Credo and all the rest, taken together, can't put as much money into a campaign as any two of the biggest insurance companies and one pharma. Goldman Sachs alone can outspend any six of the liberal organizations and not even have to reduce its executive bonuses.

Some people, not all of them corporate toadies, say now that the Jan. 21 decision to allow corporations to run free in the field of electoral politics won't bring much of a change from what we have now, because corporate money, dispersed by lobbyists, already pretty much runs Congress.

Yes, it does to a disgusting degree. But there have been some restraints. Now and then overreaching lobbyists and even some of the people they've bribed, have gone to jail or lost their Congressional or statehouse sinecures.

The new situation means that the corporations and their lobbyists don't have to risk illegal activity or worry about possible opposition. They can simply buy Congressional seats, and state legislative seats and judgeships.

This is Benito Mussolini's dream come true. In fact, it goes beyond his realistic dreams. And it's done without a drop of blood being shed or any need to face the anger of the leaders of the world. Quiet and clean, like a good mob hit.