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Supreme Court's Head-on attack on U.S. Democracy

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EconomicDemocracy Coop

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Jan 22, 2010, 10:10:55 PM1/22/10

"..at just one corporation, Exxon Mobil, which is the biggest
corporation in America. In 2008, they posted profits of $85 billion.
And so, if they decided to spend, say, a modest ten percent of their
profits in one year, $8.5 billion, that would be three times more than
the Obama campaign, the McCain campaign and every candidate for House
and Senate in the country spent in 2008. That’s one corporation. So
think about the Fortune 500. They’re threatening a fundamental change
in the character of American political democracy."

there’s an unbroken line of precedent, beginning with Chief Justice
Marshall in the Dartmouth College case in the 1800s, all the way
through Justice Rehnquist, even, in First National Bank of Boston v.
Bellotti, saying that a corporation is an artificial creation of the
state [an artificial legally created "entity", as opposed to a human
being]. It’s an instrumentality that the state legislatures charter in
order to achieve economic purposes. And as Justice White put it, the
state does not have to permit its own creature to consume it, to
devour it."

"..Well, we need a movement for a constitutional amendment to declare
that corporations are not persons entitled to the rights of political
expression. And that’s what the President should be calling for at
this point,.."

= = =

In Landmark Campaign Finance Ruling, Supreme Court Removes Limits on
Corporate Campaign Spending

In a landmark decision, the Supreme Court rules corporations can spend
unlimited amounts of money to elect and defeat candidates. One
lawmaker describes it as the worst Supreme Court decision since the
Dred Scott case justifying slavery. We speak with constitutional law
professor, Jamin Raskin. [includes rush transcript]

Guest:

Jamin Raskin, Professor of Constitutional Law at American University
and a Maryland State Senator. He is the author of several books,
including Overruling Democracy: The Supreme Court vs. The American
People.

AMY GOODMAN: We begin our show today looking at yesterday’s landmark
Supreme Court ruling that will allow corporations to spend unlimited
amounts of money to elect and defeat candidates.

In a five-to-four decision, the Court overturned century-old
restrictions on corporations, unions and other interest groups from
using their vast treasuries to advocate for a specific candidate. The
conservative members of the Court ruled corporations have First
Amendment rights and that the government cannot impose restrictions on
their political speech.

Writing the majority opinion, Justice Anthony Kennedy described
existing campaign finance laws as a form of censorship that have had
a, quote, “substantial, nationwide chilling effect” on political
speech.

In the dissenting opinion, Justice John Paul Stevens described the
decision as a radical departure in the law. Stevens wrote, quote, “The
Court’s ruling threatens to undermine the integrity of elected
institutions across the nation.” Stevens went on to write, quote, “It
will undoubtedly cripple the ability of ordinary citizens, Congress,
and the States to adopt even limited measures to protect against
corporate domination of the electoral process.”

To talk more about this ruling, we’re joined by Jamin Raskin. He’s a
professor of constitutional law at American University and a Maryland
state senator. He is the author of several books, including Overruling
Democracy: The Supreme Court vs. The American People.

Professor Raskin, welcome to Democracy Now! Talk about the
significance of the Supreme Court’s ruling.

JAMIN RASKIN: Good morning, Amy.

Well, we’ve had some terrible Supreme Court interventions against
political democracy: Shaw v. Reno, striking down majority African
American and Hispanic congressional districts; Bush v. Gore,
intervening to stop the counting of ballots in Florida. But I would
have to say that all of them pale compared to what we just saw
yesterday, where the Supreme Court has overturned decades of Supreme
Court precedent to declare that private, for-profit corporations have
First Amendment rights of political expression, meaning that they can
spend up to the heavens in order to have their way in politics. And
this will open floodgates of millions, tens of millions, hundreds of
millions of dollars in federal, state and local elections, as
Halliburton and Enron and Blackwater and Bank of America and Goldman
Sachs can take money directly out of corporate treasuries and put them
into our politics.

And I looked at just one corporation, Exxon Mobil, which is the
biggest corporation in America. In 2008, they posted profits of $85
billion. And so, if they decided to spend, say, a modest ten percent
of their profits in one year, $8.5 billion, that would be three times
more than the Obama campaign, the McCain campaign and every candidate
for House and Senate in the country spent in 2008. That’s one
corporation. So think about the Fortune 500. They’re threatening a
fundamental change in the character of American political democracy.

AMY GOODMAN: Can you talk about President Obama’s response? He was
extremely critical, to say the least. He said, “With its ruling today,
the Supreme Court has given a green light to a new stampede of special
interest money in our politics…a major victory for big oil, Wall
Street banks, health insurance companies and the other powerful
interests that marshal their power every day in Washington to drown
out the voices of everyday Americans.” Yet a number of especially
conservatives are pointing out that there was—that President Obama
spent more money for his presidential election than anyone in US
history.

JAMIN RASKIN: OK, well, that’s a red herring in this discussion. The
question here is the corporation, OK? And there’s an unbroken line of
precedent, beginning with Chief Justice Marshall in the Dartmouth
College case in the 1800s, all the way through Justice Rehnquist,
even, in First National Bank of Boston v. Bellotti, saying that a
corporation is an artificial creation of the state. It’s an
instrumentality that the state legislatures charter in order to
achieve economic purposes. And as Justice White put it, the state does
not have to permit its own creature to consume it, to devour it.

And that’s precisely what the Supreme Court has done, suddenly
declaring that a corporation is essentially a citizen, armed with all
the political rights that we have, at the same time that the
corporation has all kinds of economic perks and privileges like
limited liability and perpetual life and bankruptcy protection and so
on, that mean that we’re basically subsidizing these entities, and
sometimes directly, as we saw with the Wall Street bailout, but then
they’re allowed to turn around and spend money to determine our
political future, our political destiny. So it’s a very dangerous
moment for American political democracy.

And in other times, citizens have gotten together to challenge
corporate power. The passage of the Seventeenth Amendment in 1913 is a
good example, where corporations were basically buying senators, going
into state legislatures and paying off senator—paying off legislators
to buy US senators, and the populist movement said we need direct
popular election of senators. And that’s how we got it, basically, in
a movement against corporate power.

Well, we need a movement for a constitutional amendment to declare
that corporations are not persons entitled to the rights of political
expression. And that’s what the President should be calling for at
this point, because no legislation is really going to do the trick.

Now, one thing Congress can do is to say, if you do business with the
federal government, you are not permitted to spend any money in
federal election contests. That’s something that Congress should work
on and get out next week. I mean, that seems very clear. No pay to
play, in terms of US Congress.

And I think that citizens, consumers, shareholders across the country,
should start a mass movement to demand that corporations commit not to
get involved in politics and not to spend their money in that way, but
should be involved in the economy and, you know, economic production
and livelihood, rather than trying to determine what happens in our
elections.

AMY GOODMAN: This is considered a conservative court, Jamin Raskin,
but isn’t this a very activist stance of the Supreme Court justices?

JAMIN RASKIN: Indeed. The Supreme Court has reached out to strike down
a law that has been on the books for several decades. And moreover, it
reached out when the parties to the case didn’t even ask them to
decide it. The Citizens United group, the anti-Hillary Clinton group,
did not even ask them to wipe out decades of Supreme Court case law on
the rights of corporations in the First Amendment. The Court, in fact,
raised the question, made the parties go back and brief this case, and
then came up with the answer to the question that the Court itself, or
the five right-wing justices themselves, posed here.

There would have been lots of other ways for those conservative
justices to find that Citizens United’s anti-Hillary Clinton movie was
protected speech, the simplest being saying, “Look, this was pay-per-
view; it wasn’t a TV commercial. So it’s not covered by McCain-
Feingold.” But the Court, or the five justices on the Court, were hell-
bent on overthrowing McCain-Feingold and the electioneering
communication rules and reversing decades of precedent.

And so, now the people are confronted with a very serious question:
Will we have the political power and vision to mobilize, to demand a
constitutional amendment to say that it is “we, the people,” not “we,
the corporations”?

AMY GOODMAN: Jamin Raskin, we want to thank you very much for being
with us, professor of constitutional law at American University’s
School of Law and a Maryland state senator.