 Chapter One
American Democracy Works, and Corporations Fight Back
In 1838, a quarter-century before he became the nation's sixteenth president, a twenty-nine-year-old Abraham Lincoln stepped up to speak at the Young Men's Lyceum in Springfield, Illinois. He spoke about what was to become the cause of his life: the preservation of that great American contribution to the human story, government of, for, and by the people. He insisted that the success or failure of the American experiment was up to us. "If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide."
Lincoln's generation of Americans, and every generation since, has faced daunting questions of whether "destruction be our lot," and we certainly have our share today. Most people can point to a host of complex and related reasons for rising anxiety about our future. Global and national environmental crises seem relentless and increasingly related to energy, economic, military, and food crises. Our unsustainable debt and budgets—national, state, local, family, personal—seem beyond control, reflecting an economy that has not generated significant wage growth in a generation. We have been locked in faraway wars for more than a decade, at war in one form or another for a half-century. Despite our victory over totalitarian communism, we spend more on our military than all other countries combined. We, the descendants of republicans wiThgreat suspicion about standing armies, now maintain a costly military empire across more than one hundred countries. On top of all of this and more, too many people now doubt that we are, in fact, a government of the people, and they no longer believe in their hearts that democracy works or that our government responds to what the people want.
We can point to an array of causes, and we can point fingers at each other, but the root of many of these related problems is our collective failure to do what generations of Americans before us did: choose to take responsibility as citizens to manage and control corporate power in our nation. We have lost sight of the implications of the astonishing global wealth and power of transnational corporations. The goals of these corporations do not concern what is best for people, the nation, and the globe. The agenda of the largest corporations will never be the agenda of the American family and the American community. Yet the corporate agenda is now the dominant policy agenda at home and across the world.
Citizens United v. Federal Election Commission
In 2010, in Citizens United v. Federal Election Commission, the U.S. Supreme Court proclaimed that the American people are not permitted to determine how much control corporations may have over elections and lawmakers. The Court, in a 5–4 decision, struck down as unconstitutional a federal election law designed to prevent corporations from dominating the outcome of elections. This law was the Bipartisan Campaign Reform Act (also known as McCain-Feingold, after its Republican and Democratic sponsors). The Bipartisan Campaign Reform Act banned "electioneering" spending by corporations—and only corporations—for or against specific candidates within sixty days of a federal election. The law was intended to prevent corporations from bypassing a longstanding prohibition on corporate political contributions to candidates, passed in 1907.
The case is called Citizens United because a Virginia nonprofit corporation by that name sued the Federal Election Commission to challenge the corporate spending restriction in the Bipartisan Campaign Reform Act. Citizens United, the corporation, wished to use its corporate money and donations from for-profit corporations to make and distribute what the Court described as a "feature-length advertisement" against Hillary Clinton, who was running for president when the case began. Further, Citizens United sought to do this within the sixty-day period before an election when the law restricted corporate spending on electioneering activity. According to Citizens United, the law violated the First Amendment right of free speech because it prevented Citizens United, a not-for-profit corporation, from engaging in "electioneering activity" and for-profit corporations from contributing to Citizens United's electioneering activity.
Of course, people are free to make a feature-length advertisement attacking a powerful senator running for president, if that's what people wish to do. Nor is anything wrong with people pooling their money to do the same thing. That's essential for political participation. People contribute all the time to organizations, associations, political parties, political action committees and other political committees. At first blush, the background to the case seemed to warrant concern about government restrictions on the free ability of people to pool resources to advocate views.
The Court majority in Citizens United was not content to leave the case at first blush. Instead, they saw an opportunity to make new law and to throw out a century of law they thought too restrictive of corporations. In the end, they effectively proclaimed that all corporations have a right to spend unlimited money in any American election—federal, state, local, judicial.
The Supreme Court had rejected this argument only a few years earlier, when Justices William Rehnquist and Sandra Day O'Connor were still on the Court. In 2003, in the case of McConnell v. Federal Election Commission, the Court ruled that the very same corporate spending provision in the McCain-Feingold law did not violate the First Amendment. In McConnell, the Court agreed that Congress may make different election spending rules for corporations than for people. The Court in McConnellfollowed the 1990 case of Michigan Chamber of Commerce v. Austin, in which another majority of the Court had ruled that corporate money, aggregated with advantages that come from the government, is not the same as people's money pooled together. Corporate spending in elections can be restricted because government creates the advantages for corporations to make them eff ective in the economic sphere, and the same advantages pose dangers in the political sphere.
Now in Citizens United, the Court, with the additions of a new chief justice, John Roberts, and a new justice, Samuel Alito, threw out McConnell and Austin. The Citizens United Court said its earlier decisions were wrong. The Court struck down the McCain-Feingold law as a violation of free speech rights and invited billions of corporate dollars into American elections.
Justice Anthony Kennedy wrote the opinion in Citizens United for the Court. At first, Justice Kennedy's opinion sounds like a ringing defense of free speech and American democracy. He writes that the government may not "ban speech." Yes! All "speakers" must be allowed and no "voices" may be silenced. Yes! The government cannot restrict a "disadvantaged person or class" from speech. Yes! All "citizens, or associations of citizens," must have an unfettered right to get their views about candidates or anything else out to the people. Of course!
But wait. Who are these "voices," "speakers" and "disadvantaged persons"? They are corporations, particularly global corporations with trillions of dollars in revenue and profits. And what was this onerous "ban on speech"? A rather weak law that said corporations may not, within sixty days of an election, spend corporate "general treasury" money to support or attack candidates for federal office. That's it.
The Court announced its decision on a cold January day in 2010 when most Americans were anxious about millions of job losses, angered by national debt and massive deficits deepened by corporate bailouts, and worried about our military and global strength overstretched by repeated distant wars while China, Germany, and other economic powerhouses at peace charged ahead. Now the Supreme Court says corporations are "disadvantaged persons" with "rights" that trump and invalidate our laws?
Since the decision, Citizens United has been widely recognized as a notorious and dangerous mistake by the Court. First, the four dissenting justices on the Court, led by eighty-nine-year-old Justice John Paul Stevens, sounded an alarm. Justice Stevens's ninety-page dissent, among his last work before retiring, may be his greatest legacy.
Stevens, born and raised in Chicago, had enlisted in the U.S. Navy on December 6, 1941, the day before the Japanese attack on Pearl Harbor, and received the Bronze Star for his service in World War II. He then began a twenty-five-year career as a lawyer and represented numerous corporations in antitrust cases. In 1969, Stevens led the investigation and prosecution of corrupt judges in Illinois and was hailed for his fair, honest, and determined approach. A Republican, he was appointed to the Court by President Gerald Ford in 1975. It would be difficult to find a more honest, moderate, and balanced judge.
When the justices assembled to announce the Citizens United decision, Stevens took the unusual step of reading his dissent aloud from his seat in the Supreme Court's public chamber. While the reading of the elderly judge at times faltered, his words were unmistakable. Stevens called the Court's action in Citizens United a "radical departure from what has been settled First Amendment law." He blasted the Court's conclusion that corporations, "like individuals, contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster." Justice Stevens said that "glittering generality" obscured the truth about whatCitizens United really meant for America, already suffering from undue influence of corporate power. Then Justice Stevens said this:
The Framers [of our Constitution] thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues [on the Supreme Court], they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind....
At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.
Justice Stevens and his fellow dissenters on the Court were not alone. President Obama called the decision a "strike at the heart of democracy." Others, such as Maryland Congresswoman Donna Edwards, called Citizens United the worst case since the Supreme Court ruled in the 1856 case of Dred Scott v. Sanford that African Americans could not be citizens. Republican Senator John McCain said he was "disappointed," and conservative Tea Party activists went further. A founder of the Tea Party said, "I have a problem with that. It just allows them to feed the machine. Corporations are not like people. Corporations exist forever; people don't. Our founding fathers never wanted them; these behemoth organizations that never die.... It puts the people at a tremendous disadvantage."
Polls showed that more than 75 percent of Independents, Republicans, and Democrats alike rejected the decision. People formed groups such as Free Speech for People and Move to Amend to launch a constitutional amendment campaign to overturn the decision and corporate rights, and more than a million Americans quickly signed petitions calling on Congress to send an amendment to the States for ratification. Several amendment bills were introduced in the House and Senate, and resolutions condemning the decision and calling for a constitutional amendment were introduced in towns, cities, and state across the country.
Why this reaction? Most Americans understand the fundamental truth that corporations are not people and that large corporations already have far too much power in America. The real people are not buying the metaphors sprinkled throughoutCitizens United and know that corporations are not "speakers" or "disadvantaged persons." Corporate money is not a "voice."
Roots of Citizens United: Earth Day 1970
If so many understood at once the crisis that Citizens United poses for America, how did it happen? To answer that question, we need to go back to the 1970s and the formation of the organized corporate campaign to put American democracy on a leash. First came a wave of engaged citizens and responsive government; then came the corporate reaction. Citizens United could not have happened without the deliberate drive for corporate power and rights that began more than three decades ago.
After a century of industrialization, Americans had by 1970 had enough of corporations using our rivers, air, oceans, and land as sewers and dumps, leaving most people and communities with the costs and giving the profits to shareholders. One day in April 1970, twenty million Americans of every age and political party came out into the streets and the parks to celebrate the first Earth Day. They demanded a better balance between corporations and people and better stewardship of our land, water, and air. Look at the photos from this first Earth Day and you will see families with children, men in suits and ties and neatly dressed women, working- and middle-class Americans, people of all ages and races.
These millions continued a longstanding American principle of guarding against concentrated corporate power that might overwhelm the larger interests of the nation. This nonpartisan tradition goes back not only to Franklin Roosevelt's New Deal, not only to Theodore Roosevelt's Square Deal, but to the founding of America. James Madison, a chief architect of the Constitution, wrote in the early 1800s that "incorporated Companies with proper limitations and guards, may in particular cases, be useful; but they are at best a necessary evil only." Always willing to be more colorful, Thomas Jefferson said that he hoped to "crush in its birth the aristocracy of our monied corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country."
In the 1830s, President Andrew Jackson and his allies battled against the partisan activity of the Second Bank of the United States, a corporation. Jackson pressed the urgent question of "whether the people of the United States are to govern through representatives chosen by their unbiased suffrages or whether the money and power of a great corporation are to be secretly exerted to influence their judgment and control their decisions." Even President Martin Van Buren, hardly a radical, warned of "the already overgrown influence of corporate authorities."
That first Earth Day in 1970 again awakened our government to the necessity of restoring the balance of corporate power and public interest, of those who control powerful corporations and the rest of Americans. With a Republican president in the White House and bipartisan support in Congress, the extent of reform that quickly followed in the months and a few short years after the first Earth Day remains astonishing:
* First Environmental Protection Agency
* Clean Water Act
* Federal Water Pollution Control Amendments
* Clean Air Act Extension
* Toxic Substances Control Act
* Safe Drinking Water Act
* Wilderness Act
* Surface Mining Control and Reclamation Act
* Endangered Species Act
* Marine Mammal Protection Act
* Resource Recovery Act
* First fuel economy standards for motor vehicles
These 1970s reforms were long overdue. For a time, they worked extraordinarily well and made a profound difference in the quality of life of the vast majority of Americans. No longer could dumping untreated sewage and toxic waste in our waters be considered a standard business practice; no longer could corporations walk away from hazardous waste and chemical sites; more wilderness areas preserved more of our birthright and that of future Americans; new laws rejected the industry view that we just had to live with the discharge of brain- and organ-damaging lead from millions of cars and the spread of lead paint in every building in the land; access to clean, safe water was assured for far more Americans; and so much more.
The market did not do this. We did this by acting as citizens in a republic.
As with every time in American history, of course, the 1970s were racked with crisis and challenge. Yet the American people worked the levers of democracy, and the government responded. It actually seemed as if some connection existed between those levers—voting, organizing, debating, petitioning, marching—and our government's conduct.
Environmental protection was not all. We often remember the strife and problems of the late 1960s and early 1970s but think of the progress in race and gender equality; ending the Vietnam War; real wage growth for average Americans; global leadership in trade and commerce and manufacturing; steady, comprehensive, creative, and effective resistance across the globe to dictatorial communism; public accountability when the president broke the law; more open government and better congressional oversight; manageable debt and budgets in Washington and the states; employee rights and safety; and a constitutional amendment to enfranchise millions of Americans from eighteen to twenty years old. The people demanded change; our government delivered change.
The biggest corporations on the planet, however, did not celebrate the responsive democracy that followed Earth Day. Instead, they organized to fund a sustained program to take political power and rights for themselves and away from average Americans. With Citizens United, we may see the end game of this project, but it has been years in the making.
(Continues...) |
No comments:
Post a Comment