Saturday, January 23, 2010

DN Interview on Landmark Supreme Court Decision, Free Forum

From: Terrence McNally

Free Forum Sunday January 24th 1-2pm PT (4-5pm ET),
in LA on KPFK, 90.7 fm.

Government of, by and for the people has perished in the US.

January 21st, a divided Supreme Court reversed precedent and law, voting 5-4
to to remove nearly all limits on corporate contributions to political

Terrence McNally will discuss the decision in the context of money in
politics and the grave threat to any semblance of democracy, as well as
potential outcomes and possible remedies.

Guests: Robert Edgar, President of Common Cause

Scott Nelson, attorney with Public Citizen, who represented the key
congressional sponsors of the McCain-Feingold law and co-authored their
amicus brief in Citizens United v. FEC.


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

Democracy Now
January 22, 2010
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

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.
threatening a fundamental change in the character of American political

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

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
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

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.

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