Conservative activist Supreme Court gives birth to the new “corporatocracy” in Citizens United v. FEC


Posted by AzBlueMeanie:

At the close of the Constitutional Convention in 1787, “A lady asked Dr. [Benjamin] Franklin "Well Doctor what have we got a republic or a monarchy?" "A republic" replied the Doctor, "if you can keep it.” – Notes of Dr. James McHenry, published in The Records of the Federal Convention of 1787, ed. Max Farrand, vol. 3, appendix A, p. 85 (1911, reprinted 1934), in a footnote.

Today, five conservative activist Supreme Court Justices presided over the murder of our Republic and gave birth to the new "corporatocracy" in Citizens United v. FEC. It is nominally a First Amendment case, but it is so much more than that. This opinion will enter the pantheon of the worst decisions of the U.S. Supreme Court, cases wrongly decided in favor of the wealthy and powerful ruling elite.

You can read the full opinion Scribd at SCOTUSblog » Citizens United v. FEC opinion

From the ABA Journal 5-4 Citizens United Ruling 'a Revolution in Campaign Finance Law':

The 5-4 ruling strikes down restrictions that had barred corporations from spending money from their general treasuries on campaign ads in the days before an election.

Justice Anthony M. Kennedy wrote the majority opinion (PDF) in the long-awaited campaign finance ruling, Citizens United v. Federal Election Commission. The opinion overrules Supreme Court precedent.

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The ruling overturns a 1990 Supreme Court decision, Austin v. Michigan Chamber of Commerce, which had upheld a ban on corporate spending to influence state races. It also overturns part of the 1993 decision McConnell v. Federal Election Commission that had upheld the federal restrictions on corporate independent expenditures.

Kennedy was joined in the First Amendment ruling by Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas. All the justices except Clarence Thomas agreed with a portion of Kennedy's opinion upholding corporate disclosure requirements.

“The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether,” Kennedy wrote.

In his partial dissent, Thomas said Kennedy’s opinion did not go far enough to protect anonymous political speech.

Roberts wrote a concurrence, joined by Justice Samuel A. Alito Jr., explaining why Austin should be overruled despite the importance of precedent. Free speech rights are not confined to individuals, he said. “The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer,” he wrote.

Justice John Paul Stevens dissented from the First Amendment ruling, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor. He said that Citizens United had other alternatives under the campaign finance restriction struck down by the majority. Citizens United could have run the Hillary Clinton film outside the 30-day pre-election window when corporate electioneering was restricted. It could have promoted the video through a political action committee.

The basic premise underlying the court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its 'identity' as a corporation,” Stevens wrote. “While that glittering generality has rhetorical appeal, it is not a correct statement of the law.”

From the Washington Post Supreme Court rejects limits on corporate spending in electoral campaigns:

The decision upends the court's precedent that corporations may not use their profits to support or oppose candidates, and it rejects a large portion of the so-called McCain-Feingold campaign finance reform act that the justices had declared constitutional just six years ago. It seems likely to apply to the political role of labor unions as well.

The decision does not address the restriction on direct contributions to candidates, and it upholds disclosure requirements for groups that mount advertising campaigns for and against candidates.

The far-reaching ruling marks a triumph for groups that have fought the McCain-Feingold provisions, formally known as the Bipartisan Campaign Finance Reform Act of 2002.

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The court's liberal bloc, which included new Justice Sonia Sotomayor in the case, dissented. Justice John Paul Stevens took more than 20 minutes to read a dissent from the bench, a move justices reserve for emphasizing their disagreement.

"A radical change in the law," Stevens called the decision. He said Thursday's majority rejects the decisions of Congress dating from 1907 and "the overwhelming majority of justices who have served on this court."

He said the five-member majority are the only ones who believe corporate money in electoral politics should be increased, rather than controlled. Sotomayor and Justices Ruth Bader Ginsburg and Stephen G. Breyer joined his 90-page dissent.

Sen. John McCain (R-Ariz.), who co-wrote the 2002 campaign reform law with Sen. Russell Feingold (D-Wis.), said he was "disappointed" by the decision. But Feingold went further, calling it "a terrible mistake" and saying it ignored "important principles of judicial restraint and respect for precedent."

"Presented with a relatively narrow legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president," Feingold added.

Both senators noted, though, that the court had retained the law's ban on so-called soft money contributions.

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Fred Wertheimer, a veteran campaign reform activist who heads Democracy 21, called the ruling "a disaster for the American people and a dark day for the Supreme Court."

"In a stark choice between the right of American citizens to a government free from 'influence-buying' corruption and the economic and political interests of American corporations, five Supreme Court Justices today came down in favor of American corporations," Wertheimer said. "With a stroke of the pen, five Justices wiped out a century of American history devoted to preventing corporate corruption of our democracy."

From the New York Times Justices Overturn Key Campaign Limits:

Sweeping aside a century-old understanding and overruling two important precedents, a bitterly divided Supreme Court on Thursday ruled that the government may not ban political spending by corporations in candidate elections.

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The 5-to-4 decision was a doctrinal earthquake but also a political and practical one. Specialists in campaign finance law said they expected the decision, which also applies to labor unions and other organizations, to reshape the way elections are conducted.

“If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, which included the four members of its conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

Justice John Paul Stevens read a long dissent from the bench. He said the majority had committed a grave error in treating corporate speech the same as that of human beings. His decision was joined by the other three members of the court’s liberal wing.

Stevens dissent is critical to understanding why this case is wrongly decided. What none of the superficial press reporting I have seen today has reported, but what was critical to the majority's opinion to treat corporate entities the same as persons is the Supreme Court case of Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886), in which the court is purported to have recognized the legal fiction of "corporate personhood" under the 14th Amendment.

The Santa Clara case is perhaps the greatest fraud ever perpetrated in U.S. history. It's consequences have been far-reaching and destructive. For a detailed analysis see the primer The Santa Clara Blues: Corporate Personhood versus Democracy by William Meyers (2000). (Some of you may also have a copy of Thom Hartmann's excellent book on this subject, "Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights.")

In Santa Clara County v. Southern Pacific Railroad Company [118 U.S. 394 (1886)], at the lower court levels the question of whether corporations were persons had been argued, and these arguments were submitted in writing to the Court. However, before oral argument took place, Chief Justice Waite announced: "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."

It is not half as strange that the Supreme Court judges would render such an opinion, given their allegiance to the propertied class, as the way that they rendered it. These guys loved to write long-winded, complex opinions; look at any Supreme Court opinion of the time (or any time) and you'll see that. This question had never been covered in a Supreme Court decision; it had been avoided. Here was the perfect chance for any of nine Supreme Court judges to make his place in history. All declined. No one wanted to explain how an amendment about ex-slaves had converted artificial entities into the legal equivalent of natural persons.

This opinion without explanation, given before argument had even been heard, became the law of the United States of America. No state or federal legislature passed it or even discussed; no Amendment to the Constitution was deemed necessary; the citizens were simply informed that they had a mistaken view about corporations, if they were informed at all. Future Supreme Courts refused to even consider the question, preferring to build on it, though occasionally future justices would try to raise the question again.

Thom Hartmann adds further explanation in this article The Railroad Barons Are Back – And This Time They'll Finish the Job (2002) (some paragraphs are taken out of sequence):

[The railroad barons represented the most powerful corporations in America, and they were incredibly tenacious. They mounted challenge after challenge before the Court, claiming the 14th Amendment should grant them human rights under the Bill of Rights (but not grant such rights to unions, churches, small companies, or governments). Finally, in 1886, the Court's reporter defied his own Chief Justice and improperly wrote a headnote that moved corporations out of the privileges category and gave them rights – an equal status with humans. (Last year we found the correspondence between the two in the National Archives and put it on the web. By the time the Reporter's headnotes were published, the Chief Justice was dead.)]

[But, as if by magic, even though in the Santa Clara case the Supreme Court did not rule on any constitutional issues (read the case!), the Court's reporter rewrote the American Constitution at the behest of the railroad barons and moved a single form of human association – corporations – from the privileges category into the rights category. All others, to this day, still only have privileges. But individual citizen voters must now politically compete with corporations on an equal footing – even though a corporation can live forever, doesn't need to breathe clean air, doesn't fear jail, can change its citizenship in an hour, and can own others of its own kind.]

And, based on the Reporter's headnotes (and ignoring the actual ruling), subsequent Courts have expanded those human rights for corporations. These now include the First Amendment human right of free speech (including corporate "speech" to influence politics – something that was a felony in most states prior to 1886)…

* * *

And, from the founding of the United States, neither did corporations. Rights were the sole province of humans.

As the father of the Constitution, President James Madison, wrote, "There is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity by… corporations. The power of all corporations ought to be limited in this respect. The growing wealth acquired by them never fails to be a source of abuses." It's one of the reasons why the word "corporation" doesn't exist in the constitution – they were to be chartered only by states, so local people could keep a close eye on them.

Early state laws (and, later, federal anti-trust laws) forbade corporations from owning other corporations, particularly in the media. In 1806, President Thomas Jefferson wrote, "Our liberty depends on the freedom of the press, and that cannot be limited without being lost." He was so strongly opposed to corporations owning other corporations or gaining monopolies of the media that, when the Constitution was submitted for ratification, he and Madison proposed an 11th Amendment to the Constitution that would "ban commercial monopolies." The Convention shot it down as unnecessary because state laws against corporate monopolies already existed.

The point of this historical discussion is that the U.S. Supreme Court is well aware of the well-documented fraud perpetrated in the Santa Clara case. It has been raised by Justices in several prior cases, and it has been raised as an issue and has been briefed, including several amicus curiae briefs filed in this case. Despite the evidence of well-documented fraud, the majority in Citizens United continue to perpetuate the fraud of the legal fiction of "corporate personhood" to give corporations the "right" of political free speech (First Amendment) guaranteed to "persons" under the 14th Amendment – a felony in most states prior to 1886.

The conservative activist Justices of the Supreme Court have ignored the Founding Fathers' warnings against the evils of corporations. They have ignored the "original intent" of the 14th Amendment and the Congressional Record of debate of the 14th Amendment. They have overturned century-old federal law and the court's own precedents prohibiting corporate money in elections in favor of perpetuating a fraud committed by another Supreme Court more than 140 years ago. In doing so, they have given birth to a "corporatocracy" which undoubtedly has our Founding Fathers rolling over in their graves today as the Republic they gave us is murdered by five Supreme Court Justices.

The only remedy to this abuse of power by the U.S. Supreme Court is an Amendment to the Constitution which clarifies that "persons" entitled to the rights, privileges and immunities under the U.S. Constitution are only living, breathing human beings – not corporate entities or associations.

Something else you may want to ponder. Large corporations today are multi-national global corporations. They have no loyalty or any commitment to a local community, state or even a country. Profit is their only motive. These multi-national global corporations are controlled by a relatively small number of extremely wealthy investors who have a controlling interest in the company. Many of them are foreign investors, not U.S. citizens. Yet because these corporations are licensed to do business in the U.S., they will now be able to buy American politicians directly and influence elections in the U.S., not for the benefit of Americans but for their own pursuit of profit and political power.

"WE the people" are the U.S. government, yet our government may soon be subservient to wealthy and powerful global corporations who answer to no one, sold out by American politicians who are all too eager to serve the "corporatocracy." For all the right-wing's conspiracy theories about the "one world order," you would think the right would recognize and understand the very real threat to our Republic posed by global corporations.

You have a choice to make, America: you can get angry and fight back against the "corporatocracy" and demand that the fraud of Santa Clara be reversed by a Constitutional Amendment. You can demand that we return to the original intent of the Founding Fathers in dealing with the evils of corporations (i.e., state chartered businesses of limited perpetuity). And you can demand that Congress impeach Supreme Court Justices for perpetrating a fraud, an actual crime. Or you can remain silent in the face of losing your Republic. You can become a serf to your corporate overlords. To paraphrase T.S. Eliot, "This is the way democracy ends. Not with a bang, but a whimper."

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AZ BlueMeanie
The Blue Meanie is an Arizona citizen who wishes, for professional reasons, to remain anonymous when blogging about politics. Armed with a deep knowledge of the law, politics and public policy, as well as pen filled with all the colors stolen from Pepperland, the Blue Meanie’s mission is to pursue and prosecute the hypocrites, liars, and fools of politics and the media – which, in practical terms, is nearly all of them. Don’t even try to unmask him or he’ll seal you in a music-proof bubble and rendition you to Pepperland for a good face-stomping. Read blog posts by the infamous and prolific AZ Blue Meanie here.