The Four Courtsmen of the Apocalypse
The Supreme Court and Corporate Money
By HARVEY WASSERMAN
CounterPunch: September 14, 2009
The Four Courtsmen of the Apocalypse are poised to finally bury American
democracy in corporate money. The most powerful institution in human
history---the global corporation---may soon take definitive possession of
our electoral process.
It could happen very soon.
While America agonizes over health care, energy and war, Justices John
Roberts, Antonin Scalia, Sam Alito and Clarence Thomas could make it all
moot. They may now have the fifth Supreme Court vote they need to open the
final floodgates on corporate spending in political campaigns.
In short, the Court may be poised to shred a century of judicial and
legislative attempts to preserve even a semblance of restraint on how Big
Money buys laws and legal decisions. The ensuing tsumani of corporate cash
could turn every election hence into a series of virtual slave auctions,
with victory guaranteed only to those candidates who most effectively grovel
at the feet of the best-heeled lobbyists.
Not that this is so different from what we have now. The barriers against
cash dominating our elections have already proven amazingly ineffective
But a century ago, corporations were barred from directly contributing to
political campaigns. The courts have upheld many of the key requirements.
Meanwhile the barons of Big Money have metastasized into all-powerful
electoral juggernauts. The sum total of all these laws, right up to the
recently riddled McCain-Feingold mandates, has been to force the
corporations to hire a few extra lawyers, accountants and talk show
bloviators to run interference for them.
Even that may be too much for the Court's corporate core. John Roberts'
Supremes may now be fast-tracking a decision on CITIZENS UNITED v. FEDERAL
ELECTION COMMISSION, centered on a corporate-financed campaign film
attacking Hillary Clinton. According to the Washington Post's account of
oral arguments, "a majority of the court seemed impatient with an
increasingly complicated federal scheme intended to curb the role of
corporations, unions and special interest groups in elections."
Former solicitor general Theodore B. Olson, who in 2000 "persuaded" the
Court to stop a recount of votes in Florida and put George W. Bush in the
White House, said such laws "smothered" the First Amendment and
"criminalized" free speech.
The conservative Gang of Four has already been joined by Anthony Kennedy,
the Court's swing voter, in signaling the likely overturn of two previous
decisions upholding laws that ban direct corporate spending in elections.
When he was confirmed as the Court's Chief, Roberts promised Congress he
would be loathe to overturn major legal precedents. But the signals of
betrayal now seem so clear that Senators John McCain and Russell Feingold
have issued personal statements warning Roberts that a radical assault on
campaign finance laws would be considered a breach of faith with the
Congress that confirmed him.
Liberal Justice Ruth Bader Ginsburg did assert during oral arguments that "a
corporation, after all, is not endowed by its creator with inalienable
rights."
But since the 1880s the courts have generally granted corporations human
rights with no human responsibilities. Thom Hartmann (UNEQUAL PROTECTION)
and Ted Nace (GANGS OF AMERICA) have shown with infuriating detail how
corporate lawyers twisted the 14th Amendment, designed to protect the rights
of freed slaves, into a legal weapon used to bludgeon the democratic process
into submission.
Civil libertarians like Floyd Abrams and the American Civil Liberties Union
have somehow argued that depriving these mega-conglomerations of cash and
greed their "right" to buy elections might somehow impinge on the First
Amendment.
But the contradiction between human rights and corporate power is at the
core of the cancer now killing our democracy. As early as 1815 Thomas
Jefferson joined Tom Paine in warning against the power of "the moneyed
aristocracy." In 1863 sometime railroad lawyer Abraham Lincoln compared the
evils of corporate power with those of slavery. By the late 1870s Rutherford
B. Hayes, himself the beneficiary of a stolen election, mourned a government
"of, by and for the corporations."
The original US corporations---there were six at the time of the
Revolution---were chartered by the states, and restricted as to what kinds
of business they might do and where. After the Civil War, those restrictions
were erased. As Richard Grossman and the Project on Corporate Law &
Democracy have shown, the elastic nature of the corporate charter has
birthed a mutant institution whose unrestrained money and power has
transformed the planet.
Simply put, globalized corporations, operating solely for profit, have
become the most dominant institutions in human history, transcending ancient
emperors, feudal lords, monarchs, dictators and even the church in their
wealth, reach and ability to dominate all avenues of economic and cultural
life.
The Roberts Court now seems intent on disposing of the feeble, flimsy
McCain-Feingold campaign finance law as well as the 1990 AUSTIN decision
that upheld a state law barring corporations from spending to defeat a
specific candidate.
Scalia, Kennedy and Thomas all voted to overturn McCain-Feingold in 2003,
and nobody doubts Roberts and Alito will join them now. The only question
seems centered on how broad the erasure will be. This, after all, is a
"conservative" wing whose intellectual leader, Antonin Scalia, recently
argued that wrongly convicted citizens can be put to death even if new
evidence confirms their innocence.
Should our worst fears be realized, the torrent of cash into the electoral
process could sweep all else before it. With five corporations controlling
the major media and all members of the courts, Congress and the Executive at
the mercy of corporate largess, who will heed the people?
"We don't put our First Amendment rights in the hands of Federal Election
Commission bureaucrats," said Roberts said in the oral arguments.
Instead he may put ALL our rights in the hands of a board room barony whose
global reach and financial dominance are without precedent.
At this point, only an irreversible ban on ALL private campaign
money---corporate or otherwise---might save the ability of our common
citizenry to be heard. Those small pockets where public financing and
enforceable restrictions have been tried DO work.
A rewrite of all corporate charters must ban political activity and demand
strict accountability for what they do to their workers, the natural
environment and the common good.
It was the property of the world's first global corporation---the East India
Tea Company---that our revolutionary ancestors pitched into Boston Harbor.
Without a revolution to now obliterate corporate personhood and the "right"
to buy elections, we might just as well throw in the illusion of a free
government.
This imminent, much-feared Court decision on campaign finance is likely to
make the issue of corporate money versus real democracy as clear as it's
ever been.
Likewise the consequences.
Harvey Wasserman has been writing about atomic energy and the green
alternatives since 1973. His 1982 assertion to Bryant Gumbel on NBC's TODAY
Show that people were killed at TMI sparked a national mailing from the
reactor industry demanding a retraction. NBC was later bought by
Westinghouse, still a major force pushing atomic power. He is the author of
SOLARTOPIA! Our Green-Powered Earth, A.D. 2030, is at www.solartopia.org. He
can be reached at: Windhw@aol.com
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