THE END OF DEMOCRACY

by Brad Friedman
From HUSTLER Magazine August 2010

Amid the billowing smoke and carnage in the oilslicked waters of Pearl Harbor on December 7, 1941, the damage wrought by a Japanese surprise attack was devastatingly clear. The same was true when we watched in horror as the smoldering twin towers of the World Trade Center collapsed on September 11, 2001.

Like those two pivotal events, January 21, 2010, is also "a date which will live in infamy," yet you probably didn't even notice. But you will.

If you thought the U.S. Supreme Court's 1857 Dred Scott ruling was bad, and its 2001 Bush v. Gore decision awarding the White House to Dubya stunk, hold onto your hats. The highest court in the land has outdone itself with Citizens United v. Federal Election Commission. Whereas Dred Scott deemed that blacks weren't people and therefore not entitled to the rights guaranteed by the U.S. Constitution, early this year the five Republican appointees on the Supreme Court of the United States, in a 5-4 decision, decided that corporations can spend unlimited sums on political advertising to elect a preferred candidate—or to ensure that anybody they don't like doesn't get elected.

So, next election, it will be your "free speech" versus Walmart's. Your "free speech" versus ExxonMobil's. Your "free speech" versus AIG's or Halliburton's or Citibank's or Monsanto's or Lockheed Martin's or Pfizer's or the entire for-profit health insurance industry. Who do you suppose is going to win such a contest?

Corporations, which spent more to influence Congress last year than ever before, already had too much control of both Republican and Democratic candidates. And it's about to get much, much worse. Justice John Paul Stevens, in his scathing dissent to the Citizens United decision, wrote: "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." But the five Reagan/Bush I/Bush II-appointed justices—Roberts, Alito, Thomas, Scalia and Kennedy—won the day.

Former Federal Elections Commission attorney Lawrence M. Noble concisely explained what any lobbyist or any corporation may now say to any member of Congress: "We have got a million we can spend advertising for you or against you— whichever one you want." Noble's "million" is an exceedingly conservative number. He might as well have said 10 million or 100 million. It's all legal now, any amount.

Writing for the majority, Justice Anthony Kennedy said, "The Court has recognized that First Amendment protection extends to corporations," while Chief Justice John Roberts worried that "First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy." Free speech "confined to individuals"?! Oh, the horror. We'd hate to interrupt the "vibrant public discourse" that currently takes place every day between you the reader and Bank of America. How's that "vibrant discourse" going, by the way?

Justice Antonin Scalia added, with a presumably straight face: "We should celebrate rather than condemn the addition of this speech to the public debate."

Even a Ronald Reagan appointee, former conservative Justice Sandra Day O'Connor, wasn't celebrating the decision: "The [Supreme Court] majority in Citizens United has signaled that the problem of campaign contributions in…elections might get considerably worse and quite soon." As the previous swing vote on the High Court, O'Connor wrote the majority opinion supporting legislative restrictions on corporate campaign spending in the bipartisan McCain-Feingold Campaign Reform Act, which was gutted by the Citizens United decision.

As if that weren't enough, legal scholars say the decision also applies to corporations with majority ownership by foreign countries. China and Saudi Arabia can now spend as much as they want to influence American elections. And worse, it can all be done in secret! No disclosure is necessary.

Republicans Celebrate "Activist Judges Legislating From the Bench"

It didn't have to happen, but Chief Justice Roberts wanted it to. Citizens United, a wealthy right-wing group with a documentary called Hillary: The Movie, wanted to advertise the hit piece on television in the days prior to 2008's New Hampshire primary. That would have violated the McCain- Feingold Act's restrictions on corporate spending in the 30 days prior to elections. Lower courts barred Citizens United from advertising the movie. Roberts granted the case a hearing, but rather than decide on that very narrow issue, Dubya's appointee asked Citizens United to return later to argue a larger question that it hadn't even asked: whether there should be any limits on corporate campaign spending.

There was little doubt that the highly unusual move was made to allow Roberts and his right-wing majority on the Court the opportunity to decide in favor of corporations. The activist Republican justices clearly went out of their way to decimate a century of established campaign-finance law limiting corporate spending.

Republicans used to call that sort of thing "legislating from the bench" back when they were against judges creating law and overriding the will of the people's elected legislatures. As with most claims by the modern Republican they didn't actually mean it.

Senate Minority Leader Mitch McConnell (R-Kentucky) praised the decision: "For too long, some in this country have been deprived of full participation in the political process. … [T]he Supreme Court took an important step in the direction of restoring the First Amendment rights of these groups…to express themselves about political candidates and issues up until Election Day."

Congressman John Boehner (R-Ohio), House Republican Leader, concurred: "I think the Supreme Court decisions today are a big win for the First Amendment and a step in the right direction."

Senator John Cornyn (R-Texas), National Republican Senatorial Committee chairman, said: "I am pleased that the Supreme Court has acted to protect the Constitution's First Amendment rights of free speech and association." Of course, the "free speech" of corporations comes first for Cornyn and friends. Unless, like ExxonMobil, you also have $45.2 billion in profits available to pump into political campaigns—as the oil giant had in 2008. Most of the immediate Democratic responses were timid, but some Dems were fighting mad. Florida's firebrand freshman Representative Alan Grayson said the decision "legalizes bribery on the largest scale imaginable. … Corporations will be able to reward politicians that play ball with them, and they will be able to beat to death the politicians that don't."

Democratic Senator Russ Feingold of Wisconsin, coauthor of the McCain-Feingold Act, called the decision "a terrible mistake" in which the Court ignored "important principles of judicial restraint and respect for precedent." He added, "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."

Stare (pronounced star-ay) decisis refers to established law or precedent, the idea that judges should defer to the decisions of their predecessors, particularly after those decisions have had sufficient time to become "settled law." The concept is generally raised during the confirmation protocol to determine whether or not potential Supreme Court justices will honor long-established decisions, such as abortion rights.

Both Chief Justice Roberts and Justice Alito gave lip service to their support of stare decisis during their respective confirmation hearings, although Roberts showed his hand a bit more than Alito did. While claiming an interest in "promoting the stability of the legal system," Roberts hedged. "Obviously, if the decision is wrong, it should be overruled," he qualified. "That's not activism. That's applying the law correctly."

Despite considerable pressure from progressives to filibuster the nomination, 22 spineless Senate Democrats—including the otherwise-tenacious Feingold—voted to confirm John Roberts in 2005. They might as well have been voting themselves out of Congress—unless, of course, they prove willing to toe the corporate line.

Alito was less honest about respecting precedent. "It is not true, in my judgment, that the Supreme Court is free to do anything that it wants," Alito stated during his 2006 confirmation. "It has to follow the Constitution, and it has to follow the laws. Stare decisis…is an important limitation on what the Supreme Court does. And although the Supreme Court has the power to overrule a prior precedent, it uses that power sparingly, and rightfully so."

Apparently Alito was just kidding when he said he was "in favor of not trying to do too much, not trying to decide questions that are too broad, not trying to decide questions that don't have to be decided and not going to broader grounds for a decision when a narrower ground is available."

Just four Senate Democrats voted to confirm Alito—enough to ensure the longevity of the right-wing coup initiated by the High Court's Florida 2000 decision.

The Only Real Solution Is a Constitutional Amendment Outraged yet? If not, you're not paying attention. Or you believe that our Founders, after giving no explicit rights to corporations in the Constitution, actually intended that fictional entities—which don't breathe, go to jail, die or even have an actual mouth— should be entitled to "free speech" guaranteed by the First Amendment.

In his dissenting opinion, Stevens stated the obvious: "Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters."

Normally, one might fight a bad law by taking it all the way up to the Supreme Court. But this law was written by the Supreme Court. So we are largely fucked. (I'll take this opportunity to thank John Kerry for that—for not fighting in 2004 to make sure every vote was counted accurately and publicly in the state of Ohio, where he might have received more votes than Bush.)

As this issue goes to press, members of Congress—largely Democrats—plan to introduce legislation that could result in some restrictions on corporate campaign spending. But any new legislation can now be opposed by the power of unlimited corporate cash before passage.

Alan Grayson has introduced a package of six bills with names like the "Business Should Mind Its Own Business Act," the "End Political Kickbacks Act," the "Corporate Propaganda Sunshine Act" and the "Ending Corporate Collusion Act." At SaveDemocracy.net, Grayson posted a simple petition in support of the package, stating: "We cannot have a government that is bought and paid for by huge multinational corporations. We need a government of the people, by the people and for the people." A crazy leftist idea.

Senator Chuck Schumer (D-New York) and Representative Chris Van Hollen (DMaryland) hope to fast-track bills banning donations from foreign-influenced companies and from companies that have received taxpayer assistance, such as 2009's bank bailouts (at least until that money is paid back). Such bills would mandate immediate public disclosure of campaign spending by corporations, approval from shareholders or "I approve this ad" announcements by company CEOs.

As yet no Republicans are cosponsoring those bills. course, any new bill will face Supreme Court scrutiny. Good luck with that.

Activists at PeaceTeam.net have launched a petition calling for the impeachment of the "Supreme Court 5." Good luck with that too. The only permanent and reasonable option to unwind this madness is a Constitutional amendment clarifying what every logical and/or non- Republican person in the country likely understands: The First Amendment right to free speech is meant to apply to humans, not fictional business entities.

Representative Donna Edwards (D-Maryland) has proposed a resolution calling for an amendment to the Constitution. It reads: "Congress and the States may regulate the expenditure of funds for political speech by any corporation, limited liability company or other corporate entity. Nothing contained in this Article shall be construed to abridge the freedom of the press." If passed, it would then require ratification by two-thirds of the state legislatures.

Constitutional attorney John Bonifaz, legal director of FreeSpeechForPeople.org, supports Edwards's initiative, noting our nation's history of enacting amendments "to correct egregiously wrong decisions of the U.S. Supreme Court directly impacting the democratic process."

The group's general counsel, Jeffrey Clements, calls such action necessary because, he says, the Citizens United "decision is devastating to our democracy, which is already dominated to a dangerous degree by corporate interest money." Adding a new amendment to the Constitution is an onerous process that takes years, but other options are limited. Yes, this is that bad.

MoveToAmend.org also has a petition in support of an amendment to "firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to Constitutional rights."

As Move to Amend strives to craft language that may gain broad support—even from Republicans, who would be needed to ratify such an amendment— John Wilkens, a reader of my own blog, wrote elegantly simple Constitutional language for such an amendment: "The rights, responsibilities and privileges granted to citizens of the United States as enumerated in this Constitution, its amendments and extended through case law are exclusively reserved for human beings."

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Now there's an—apparently—novel idea! Brad Friedman is a Los Angeles-based investigative journalist and political commentator. Besides cohosting radio's nationally syndicated Green News Report, he is the executive editor and publisher of The Brad Blog (BradBlog.com).