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    « Dear Mr. President.... | Main | How Quickly We Forget…. Again…. »
    Saturday
    Jan192013

    Citizens, United

     

    As many of us take time this weekend to celebrate the man whose name is synonymous with the fight for civil rights in America, we also note the third anniversary of Citizens United v FEC, the Supreme Court decision which effectively devalued our greatest right of all—the right to have our vote mean something.

    In favoring Citizens United the Supreme Court effectively cemented the move from “one person, one vote” to “one dollar, one vote.” An explanation from the Stampede website reminds us, though, that the issue didn’t begin just three years ago, but has roots much deeper: “The ruling that money is free speech comes from the Supreme Court case Buckley v. Valeo (1976) which upheld limits on contributions directly to campaigns.” The site also reminds us that corporate rights have slowly expanded over recent decades. “These cases built up over time and slowly added more and more rights for corporations. This Wikipedia article traces that history pretty well. Granting rights to corporations hit its high point under Citizens United, but it didn’t start there…”

    But it needs to end there.

    The Citizens United decision—now the current culmination of these trends—must somehow be overturned; in doing so, we have the opportunity to undo years and years of continued voter devaluation.

    Caution is warranted, however, in how we do that. A Supreme Court decision is not legislation; it cannot be repealed or undone on its face. Such change requires a new, broadly applied decision or a constitutional amendment, and either (or both) avenues are mined with misunderstanding.  The  largest of these (as a Washington Post article written on the decision’s second anniversary reminds us), is that—despite the convenient sound bite, the Supreme Court did not do what many think they did. ”Citizens United did not hold corporations to be persons, and the court has never said corporations deserve all the constitutional rights of humans,” the article says. “The Fifth Amendment’s right to be free from self-incrimination, for example, does not extend to corporations.” In a clear and hyperbole-free explanation, the author, Kent Greenfield, goes on to write that

    The question in any given case is whether protecting the association, group or, yes, corporation serves to protect the rights of actual people. Read fairly, Citizens United merely says that banning certain kinds of corporate expenditures infringes the constitutional interests of human beings. The court may have gotten the answer wrong, but it asked the right question.

    Another reason to protect corporate rights is to guard against the arbitrary and deleterious exercise of government power. If, for example, the Fifth Amendment’s ban on government “takings” did not extend to corporations, the nationalization of entire industries would be constitutionally possible. The Fourth Amendment prohibits the FBI from barging into the offices of Google without a warrant and seizing the Internet history of its users. A freedom of the press that protected only “natural persons” would allow the Pentagon to, say, order the New York Times and CNN to cease reporting civilian deaths in Afghanistan.

    In my many discussions on the topic, one of the things that I’ve learned is that only a small percentage of people dismayed by the decision actually seem to understand it. Instead, they understand the conventional wisdom, that the decision somehow “defined” corporations as people. It did not, and we must take care that the push to overturn Citizens United does not become instead a push to overcome an internet meme, an overly simplified attempt to undo a moral wrong by adjusting the social fabric. A hastily constructed amendment, for example, may open the door to just the kinds of unintended consequences that Greenfield illuminates, while sloppily written legislation or a too-narrow court case may lead the Court along paths we cannot yet predict.

    Instead, we should focus on one key issue: money should not—ever—be construed as speech. This single point is fundamentally what changes whether my vote means as much as yours. This narrower point provides a focus for strategy and planning.

    Fortunately, as we denounce this third anniversary we are also rapidly building a groundswell of people who understand the nuances—and dangers—of allowing the Citizens United decision to stand. Organizations like Rootstrikers, Stampede, Coffee Party USA, Public Citizen, and many, many more (most fueled by grassroots volunteers) are working diligently to create and support strategies and activities that will eventually lead us back to “one person/one vote.” These strategies cover all the bases, a multi-faceted approach that serves many purposes, not the least of which is to keep this issue in the news and on the airwaves by reminding people that we are the citizens, united.

    You and I may differ on many things. We may differ on who should be taxed, and why. We may differ on the role of education in our society. We may differ on the importance and value of unions, or the military, or marriage. Disagreements between us may even include foreign policy, the arts, gun control, or abortion. But the one thing I’m confident we both agree on most strongly is this: When we enter a voting booth, we want our vote to mean just as much as anyone else’s. As much as the farmer in Kansas or the social worker in Des Moines. As much as the college student in Florida or the movie extra in California. As much as the librarian in St. Paul and the blackjack dealer in Reno. As much as your sister’s. Or my mother’s. Or my cousin’s.

    As much.

     

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    Reader Comments (3)

    Michael, you know that I have only great respect for you. We don't always agree or see things the same, and that's perfectly fine with me. I'm confident in saying that I suspect that you'd agree.

    In this case, I think we might have a slightly different opinion on the value of the meme regarding corporations not being people and its applicability for helping ordinary people to understand what is central to overturning the Supreme Court's worst decision in modern times.

    As I see it, the issue is this. A very, very, very small number of people who lead very, very, very large corporations are wielding too much power and influence over our elected officials. This isn't new, nor is it news. It's not unique to our times, either. The concern, IMO, is and always should be about the power and influence bestowed on proportionately tiny numbers of corporate leaders solely by virtue of the wealth of the corporations which they lead. That power is fueled entirely by the corporation's wealth, and that power is transferred entirely into the hands of a single person or extremely small number of people. Koch Industries is whatever David and Charles want it to be. General Electric is, for all intents and purposes, what Jeffrey Immelt and a handful of people want it to be. These rich and powerful men will use all of the riches and might of their corporations to get what they want and what they think is best for themselves, for their companies, and for their largest shareholders.

    Call me cynical, but I don't for one minute believe the Kochs, Immelt, and their ilk give a moment's thought to what is best for the planet, for the rest of humanity, or for the people who work for their competitors. Greed is their only driver. Personal wealth and gain are their only morals. In their defense, doing otherwise would not be doing what they're paid to do in a capitalist system. Citizens United, sadly, gives a tiny number of people the power to "invest" not only their personal but, more to the point, the vast wealth and power of their corporations into influencing our elected officials in whatever manner produces best returns on those investments. It's only the believers in trickledown economics who believe that those actions will somehow benefit the rest of us eventually through the current corporate meme of "jobs, jobs, jobs." The Gilded Age - the first one and the one created during the Bush Administration - should have taught us that that economic philosophy is at the very least an abject failure and at its very worst an abject lie.

    The corporatization of our democracy must be stopped. If it takes following Romney's lead by perpetuating the meme that "Corporations are people... Not" then perhaps the end is justified by the means in this case. With all due respect to my fellow citizens, I'm not confident that we can win enough hearts and minds on this issue to create the groundswell of public outrage needed to motivate politicians to find a way to reverse the SCOTUS decision and to take their lifeblood - money - out of politics if we have to win the arguments to overturn CU on the nuances of corporate personhood.

    And with all due respect to Kent Greenfield, the author of the Washington Post article (and if I've Googled the right person; http://www.bc.edu/schools/law/fac-staff/deans-faculty/greenfieldk.html), his proposition that corporations ought to be more democratized is laudable but also very nearly silly in its near impossibility of ever happening in any corporation.

    "The cure for this is more democracy within businesses — more participation in corporate governance by workers, communities, shareholders and consumers. If corporations were themselves more democratic, their participation in the nation’s political debate would be of little concern and might even be beneficial."

    Statements like this help me to understand why some people will argue how career academicians lack credibility in finding solutions that work in the corporate world.

    No one I know or have read who is serious about overturning CU is suggesting that the government ought to be free to invade Google's offices or have the power to tell the Times what to print. Greenfield ought to be ashamed of that kind of hyperbolic rationale for protecting "corporate rights." It's exactly the sort of footing that defenders of CU will stand firmly on. Not only does it strike me as ridiculous in the extreme, it seems to have very little to do with the problem at hand - taking corporate money and influence out of politics.

    But, who am I to argue with a professor of law at Boston College? All I know is that if we can't find our own "Don't Tread On Me" meme to be our rallying cry, we'll probably lose to the better organized and better funded meme of "Corporations are people, too, my friend."

    January 21, 2013 | Unregistered CommenterGreg Russak

    Gentlemen:

    First, thank you for two very excellent points of view. Both contain salient points with which I agree. Michael, your views on Citizens United are both valid and prudent. To strip corporations of all rights in the name of denying them personhood would be disastrous. A corporation, just like a gun, is a tool which can be used for great good or great evil, depending on those controlling it. Or, as I like to say; "Capitalism without conscience is the greatest form of tyranny. Capitalism with conscience is the ultimate expression of humanity". That being said, new data now exists that begins to make the “one dollar one vote” theory somewhat suspect; namely the spending patterns of this past Presidential Election. Hundreds of millions were poured into the Romney campaign at the last second that failed to sway the people one bit. And while history and I contest the assertion that this was a landslide victory, the fact that every pundit on the planet seems to disagree with me makes the money-vote connection even more tenuous. Now I will readily admit that I did not study the spending habits and outcomes of individual congressional races, but these seem more and more to be about the incumbent, and whether or not he/she made any huge blunders in their latest terms. If not, they seem to be “check-marked” as OK and returned to Washington. Today, congressional seat swaps seem to occur more often within an individual party’s primary process; but any attempt at regulating party politics is well beyond the scope of the current discussion. All that said, please understand I am not totally discounting the effect of money on our political process, but suggesting that elections should not necessarily be the primary point of scrutiny. This leads me to Mr. Russak’s comment, and to where I believe we ultimately find common ground.

    Here we find what likely needs to become The People’s rallying cry: “The corporatization of our democracy must be stopped.” I personally do not know anyone that would argue against this – at least not openly. It is only those who scheme in the smoky backrooms of Finance and Industry or the darkest recesses of the corridors of power in Washington who seek to rig the game in favor of big business and the wealthy. Scoundrels and scallywags who believe that the average American is only good for use as mortar in building the walls of corrupt intuitions that funnel money and power upwards. And who in return, provide only the bread and circus needed to control the populous. My ultimate fear Michael, is that these despots have already moved past politics; that in the three short years since the Citizen’s United debacle they have mutated like a virus and are and are now mostly immune to a vaccine that would only remove money from elections. Instead, the big money push now seems to be focused on lobbying. To my point, OpenSecrets.com reported that from the beginning of 2010 to the end of 2011, lobbyists spent just short of $7 Billion in search of legislative favors*. That’s over three (3) times the amount spent on the 2012 presidential election!** During that same timeframe, we also saw the rise to power of such organizations as ALEC; the pro-business lobby that literally writes legislation for congressmen and women to rubber stamp. If you think about it, this is a much shrewder and exponentially more effective approach versus trying to buy favor through campaign financing.

    Lobbying allows special interests to pinpoint their money on, well, their special interests. Does anyone really think that the NRA gives a rat’s behind about securing mineral rights at well below market value? Of course not. So why bother spending tons of cash helping someone to [perhaps] get elected, only to have to wait in line with everyone else until it’s finally your turn? Wouldn’t it be much more expedient to send your high-priced errand boy down to a legislator’s office with tickets for an extravagant junket and whispers of a huge donation to their war chest should they help pass the bill that oops, just fell out of my coat pocket and into your legislative assistant’s lap? And by the way, if you do our bidding, when you and your staff have finally leave office you’ll all have nice cushy jobs waiting for you down on K- Street or with the “Independent [fill in industry name here] Association of America.

    As such, I am humbly suggesting that fighting the graft and corruption that has led and continues to lead toward the corporatization of our democracy beckons us to broaden our efforts to encompass getting money out of government altogether; not just out of politics.

    * source: http://www.opensecrets.org/lobby/index.php
    ** source: http://elections.nytimes.com/2012/campaign-finance

    January 22, 2013 | Unregistered CommenterDan Arosnon

    I deconstructed Greenfield's arguments in support of corporate constitutional rights last year after he published them:
    http://www.amendmentgazette.com/2012/06/20/taking-on-amendment-critics-part-iii-kent-greenfield/

    I will add that in the aftermath of the abolition of corporate rights, those former rights will become privileges (as the Framers intended). Privileges can be regulated, revoked and protected, and some privileges for the non-profit corporations would have to be protected. That is all people need to understand about Greenfield's misplaced fear.

    January 25, 2013 | Unregistered CommenterVictor Tiffany

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