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Fascism Coming to a Court Near You

Corporate Personhood and the Roberts' Court

Thom Hartmann

As the 1983 American Heritage Dictionary noted, fascism is: "A
system of government that exercises a dictatorship of the extreme right,
typically through the merging of state and business leadership, together with
belligerent nationalism."

Get
ready.

Last
year a right-wing group put together a 90-minute hit-job on Hillary Clinton,
and wanted to run it on TV stations in strategic states.  The Federal Election Commission ruled
that the "documentary" was actually a "campaign ad" and thus fell under the
restrictions on campaign spending of McCain-Feingold, and thus stopped it from
airing. (Corporate contributions to campaigns have been banned repeatedly and
in various ways since 1907 when Teddy Roosevelt pushed through the Tillman
Act.)  

Citizens
United, the right-wing group, sued the Supreme Court, with right-wing hit
man and former Reagan solicitor general Ted Olson as their lead lawyer.

This
new case, Citizens United v. Federal
Election Commission
, presents the best opportunity for the Roberts Court to
use its five vote majority to totally re-write the face of politics in America,
rolling us back to the pre-1907 era of the Robber Barons. 

As
Jeffrey Toobin wrote in The New Yorker ("No More Mr. Nice Guy"): "In every
major case since he became the nation's seventeenth Chief Justice, Roberts has
sided with the prosecution over the defendant, the state over the condemned,
the executive branch over the legislative, and the corporate defendant over the
individual plaintiff. Even more than Scalia, who has embodied judicial
conservatism during a generation of service on the Supreme Court, Roberts has
served the interests, and reflected the values, of the contemporary Republican
Party."

And
the only way the modern Republican Party can recover their power over the next
decade is to immediately clear away all impediments to unrestrained corporate
participation in electoral politics. 
If a corporation likes a politician, they can make sure he or she is elected
every time; if they become upset with a politician, they can carpet-bomb her
district with a few million dollars worth of ads and politically destroy her.

And
it looks like that's exactly what the Roberts Court is planning.  In the Citizens United case, they asked for it to be re-argued in
September of this year, going all the way back to the 1980s and re-examining
the rationales for Congress to have any
power to regulate corporate "free speech."

As
Robert Barnes wrote in The Washington Post on June 30, 2009, "Citizens United's
attorney, former solicitor general Theodore B. Olson, had told the court that
it should use the case to overturn the corporate spending ban the court
recognized in Austin v. Michigan Chamber
of Commerce
, as well as its decision in 2003 to uphold McCain-Feingold as
constitutional."

The
setup for this came in June of 2007, in the case of the Federal Election Commission v. Wisconsin Right To Life, in which
the Roberts Court ruled that the FEC couldn't prevent WRTL from running ads
just because they were a corporation. 

"A Moroccan cartoonist," Justice Scalia opened his opinion with his usual
dramatic flair,  "once defended his
criticism of the Moroccan monarch (lèse majesté being a serious crime in
Morocco) as follows: ‘I'm not a revolutionary, I'm just defending freedom of
speech. I never said we had to change the king-no, no, no, no! But I said that
some things the king is doing, I do not like. Is that a crime?'"

"Well,"
Scalia wrote, "in the United States (making due allowance for the fact that we
have elected representatives instead of a king) it is a crime, at least
if the speaker is a union or a corporation (including not-for-profit
public-interest corporations)... That is the import of §203 of the Bipartisan Campaign Reform Act of 2002
(BCRA)
."

The
idea of Congress passing laws that limited corporate "free speech" was clearly
horrifying to Scalia.  He went
after the 1990 Austin v. Michigan Chamber
of Commerce
case, in which the MCC was limited in their "free speech" in a
political campaign because they were a corporation. 

"This
(Austin) was the only pre-McConnell
case in which this Court had ever permitted the Government to restrict
political speech based on the corporate identity of the speaker," he complained.  "Austin upheld state
restrictions on corporate independent expenditures," and, God forbid, "The
statute had been modeled after the federal statute that BCRA §203 amended..."

The
Austin case, Scalia concluded his
opinion with four others nodding, "was a significant departure from ancient
First Amendment principles. In my view, it was wrongly decided."

Scalia
also quoted at length from opinions in the Grosjean
v. American Press Co
case, "holding that corporations are guaranteed the
‘freedom of speech and of the press, safeguarded by the due process of law
clause of the Fourteenth Amendment,'" and from the 1986 Pacific Gas &
Elec. Co. v. Public Util. Comm'n of Cal. case: "The identity of
the speaker is not decisive in determining whether speech is protected"; "[c]orporations
and other associations, like individuals, contribute to the ‘discussion,
debate, and the dissemination of information and ideas' that the First
Amendment seeks to foster."

The
bottom line, for Scalia, was that, "The principle that such advocacy is ‘at the
heart of the First Amendment's protection' and is ‘indispensable to decision
making in a democracy' is ‘no less true because the speech comes from a
corporation rather than an individual." 

Continuing
to quote from a plurality opinion in Pacific
Gas,
Scalia "rejected the arguments that corporate participation ‘would
exert an undue influence on the outcome of a referendum vote'; that
corporations would ‘drown out other points of view' and ‘destroy the confidence
of the people in the democratic process..."

He
even quoted an opinion in the Grossjean
case, writing that "corporations are guaranteed the ‘freedom of speech and of
the press...safeguarded by the due process of law clause of the Fourteenth
Amendment.'"

The
Fourteenth Amendment, which says that no "person" shall be denied "equal
protection of the laws," was promulgated after the Civil War to free the slaves.  But corporations have long asserted
that because it says "person" rather than "natural person" it included giving,
in 1868 when the Amendment was ratified into law, full Constitutional rights
under the Bill of Rights to corporations. 
(Corporations are, at law, known as "artificial persons" and humans are
"natural persons" - both have to have some sort of "personhood" in order to pay
taxes, sue and be sued, etc.)

As
Scalia wrote in his opinion in FEC v.
Wisconsin Right To Life

"...FECA was directed to expenditures not just by ‘individuals,' but by
‘persons,' with ‘persons' specifically defined to include ‘corporation[s].'"

Chief
Justice Roberts weighed in, too, in the main decision.  It's a fascinating decision to read -
and search for occurrences of the word "corporation" - and here's one of Roberts'
more convoluted observations in defense of corporate free speech rights:

Accepting
the notion that a ban on campaign speech could also embrace issue advocacy
would call into question our holding in Bellotti that the corporate
identity of a speaker does not strip corporations of all free speech rights. It
would be a constitutional ‘bait and switch' to conclude that corporate campaign
speech may be banned in part because corporate issue advocacy is not,
and then assert that corporate issue advocacy may be banned as well, pursuant
to the same asserted compelling interest, through a broad conception of what
constitutes the functional equivalent of campaign speech, or by relying on the
inability to distinguish campaign speech from issue advocacy.

Bottom
line - corporate free speech rights are Real Rights that Must Be Respected.

Justice
Souter wrote a rather frightening dissent (this was a 5-4 decision, with the
usual right-wing suspects on the "5" side): "Finally, it goes without saying
that nothing has changed about the facts. In Justice Frankfurter's words, they
demonstrate a threat to ‘the integrity of our electoral process, which for a
century now Congress has repeatedly found to be imperiled by corporate, and
later union, money: witness the Tillman Act, Taft-Hartley, FECA, and BCRA.

"McConnell
was our latest decision vindicating clear and reasonable boundaries that
Congress has drawn to limit ‘the corrosive and distorting effects of immense
aggregations of wealth,' and the decision could claim the justification of
ongoing fact as well as decisional history in recognizing Congress's authority
to protect the integrity of elections from the distortion of corporate and
union funds.

"After
today, the ban on contributions by corporations and unions and the limitation
on their corrosive spending when they enter the political arena are open to
easy circumvention, and the possibilities for regulating corporate and union
campaign money are unclear.

"The
ban on contributions will mean nothing much, now that companies and unions can
save candidates the expense of advertising directly, simply by running ‘issue ads'
without express advocacy, or by funneling the money through an independent
corporation like Wisconsin Right To Life."

Sounding
almost depressed, Souter closed his dissent with these words: "I cannot tell what the future will
force upon us, but I respectfully dissent from this judgment today."

The
attempt of corporations (and their lawyers, like Roberts was before ascending
to a federal court) to usurp American democracy is nothing new, as David Souter
well knew. Fascism has always been a threat to democracy.

In
early 1944 the New York Times asked Vice President Wallace to, as Wallace
noted, "write a piece answering the following questions: What is a
fascist? How many fascists have we? How dangerous are they?"

Vice
President Wallace's answers to those questions were published in The New York
Times on April 9, 1944, at the height of the war against the Axis powers of
Germany and Japan:

"The
really dangerous American fascists," Wallace wrote, "are not those
who are hooked up directly or indirectly with the Axis. The FBI has its finger
on those... With a fascist the problem is never how best to present the truth
to the public but how best to use the news to deceive the public into giving
the fascist and his group more money or more power."

"American fascism will not be really
dangerous," he added in the next paragraph, "until there is a
purposeful coalition among the cartelists, the deliberate poisoners of public
information..."

Noting
that, "Fascism is a worldwide disease," Wallace further suggested
that fascism's "greatest threat to the United States will come after the
war" and will manifest "within the United States itself."

In
his strongest indictment of the tide of fascism the Vice President of the
United States saw rising in America, he added:

"They
claim to be super-patriots, but they would destroy every liberty guaranteed by
the Constitution. They demand free enterprise, but are the spokesmen for
monopoly and vested interest. Their final objective toward which all their
deceit is directed is to capture political power so that, using the power of
the state and the power of the market simultaneously, they may keep the common
man in eternal subjection."

Finally,
Wallace said, "The myth of fascist efficiency has deluded many people. ...
Democracy, to crush fascism internally, must...develop the ability to keep
people fully employed and at the same time balance the budget. It must put
human beings first and dollars second. It must appeal to reason and decency and
not to violence and deceit. We must not tolerate oppressive government or
industrial oligarchy in the form of monopolies and cartels."

As
Wallace's President, Franklin D. Roosevelt, said when he accepted his party's
renomination in 1936 in Philadelphia:

"...Out
of this modern civilization, economic royalists [have] carved new dynasties....
It was natural and perhaps human that the privileged princes of these new
economic dynasties, thirsting for power, reached out for control over
government itself. They created a new despotism and wrapped it in the robes of
legal sanction.... And as a result the average man once more confronts the
problem that faced the Minute Man...."

Speaking
indirectly of the fascists that Wallace would directly name almost a decade
later, Roosevelt brought the issue to its core:

"These
economic royalists complain that we seek to overthrow the institutions of
America. What they really complain of is that we seek to take away their
power."

But,
he thundered in that speech:

"Our
allegiance to American institutions requires the overthrow of this kind of
power!"

In
just a few months, we may again stand at the same crossroad Roosevelt and
Wallace confronted during the Great Depression and World War II. Fascism is
rising in America, this time calling itself "compassionate
conservatism," and "the free market" in a "flat" world.
 The point of its spear is
"corporate personhood" and "corporate free speech rights."

The
Roberts' Court's behavior - if this prediction of their goal for this fall is
accurate (and it's hard to draw any other conclusion) - now eerily parallels
the day in 1936 when Roosevelt said: "In
vain they seek to hide behind the flag and the Constitution. In their blindness
they forget what the flag and the Constitution stand for."


Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.

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