Citizens United – The Sedition of the Roberts 5

Two attorneys involved in defending Occupy Wall Street make a very interesting argument that the notorious Citizens United decision does NOT rest on the concept of corporate person-hood, and therefore the effort to get a Constitutional amendment ending corporate person-hood is a waste of time and resources.

While I disagree with their opposition to a movement to declare corporations “not human” (or, even better, “inhumane”), the two attorneys, Rob Hager and James Marc Leas, do force us to find firmer ground on which to combat the pervasive and perverse influence of money in politics. I think that ground can be found by returning to the ideas of the American Revolution concerning the best form of government being a republic, and identifying the money in politics as being the result of new oligarchies having come into being – remembering that oligarchies are always and everywhere hostile and inimical to a republican form of government.

This issue of a republican form of government will come up more and more frequently, as the one percenters move to impose increasingly dictatorial political restraints in their effort to control the or even avert the social explosion being brewed by their continued looting of the economy. Recall that in early December 2011, Representative John Conyers requested U.S. Attorney General Eric Holder to determine whether Michigan's new state law that could place Detroit and four other cities in Michigan under the control of an unelected emergency manager violated violates Article 4, Section 4 of the U.S. Constitution guaranteeing to the states a republican form of government.


Hager and Leas argue that

The incorrect - but widely held - reading of Citizens United is that the corruption of elections arose fundamentally because the Supreme Court adopted a legal doctrine of corporate "personhood" which endowed corporations with First Amendment free speech rights, which, combined with the notion that spending money to promote a candidate is a form of speech, gives corporations the right to spend unlimited amounts of their money in elections….
The Supreme Court did not base its pro-corporate First Amendment decisions on supposed "constitutional rights" of corporations. Instead, it applied novel interpretations of the First Amendment that were independent of the identity of the speaker to open the floodgates of corporate money in elections, thereby turning elections into the high-return investment vehicles they are today.
The novel interpretations of the First Amendment were initiated in two Supreme Court cases decided decades before Citizens United. In its 1976 Buckley v Valeo decision, the Supreme Court equated spending money in politics with First Amendment protected speech and overturned federal limits on expenditures in elections as violating the First Amendment.
Its 1978 decision in First National Bank of Boston v. Bellotti was the first case in which the Supreme Court overturned a law that restricted corporate money in politics.

Now, if you have gotten over your shock at the idea that the problem with Citizens United is really NOT corporate person-hood, the passage above, citing two Supreme Court decisions from over thirty years ago, serves the extremely useful purpose of forcing us to deal with the fact that we are confronting a decades-long process of devolution in which our political system has been captured by special interests generally identified with the corporate form of economic organization. What is important to understand here is that corporations are merely a symptom of the problem, not the problem itself.

To see my point, consider this: If we do manage to end corporate personhood, then what shall we do about the problem of Peter Peterson or David Koch or Charles Koch giving tens of millions of dollars to their preferred candidates or political organizations as individual citizens? What of Michael Bloomberg or Rahm Emanuel, as an individual citizens, giving their own political campaigns millions or billions of dollars? These people think and act like oligarchs, and as such, they are by their nature enemies of our republican form of government. Another conundrum proving the point: What if these oligarchs develop some other formal organization, and call it something else besides a “corporation”? – intending to circumvent the law the way Dubya Bush did by refusing to use the term “prisoners of war” and using the term “enemy combatants” instead?

Only by insisting on a return to the understanding of the nature of a republic, and the dangers posed by an oligarchy, do we truly solve the problem.

So, you ask, just what is a republic? There are two books I turned to last year to answer that question. Both are classics from the late 1960s: Bernard Bailyn’s The Ideological Origins of the American Revolution, and Gordon Wood’s The Creation of the American Republic, 1776-1787. I think John F. Kasson presents an excellent summary of these two tomes in his own 1999 book, Civilizing the Machine: Technology and Republican Values in America, 1776-1900. In fact, it was the footnote to this passage that pointed me to Bailyn and Wood:

The roots of republican ideology extended deep into English politics and the English libertarian tradition, Puritanism, Enlightenment rationalism, ancient history and philosophy, and common law – and those roots were strengthened rather than severed by being transplanted into the fertile soil of America. The notion of republicanism began with a conception of the relationships among power, liberty, and virtue. The balance among these elements, Americans’ reading and experience taught them, remained delicate and uneasy at best. Power, as they conceived it, whether wielded by an executive or by the people, was essentially aggressive, forever in danger of menacing its natural prey, liberty or right. To safeguard the boundaries between the two stood the fundamental principles and protections, the “constitution” of government. Yet this entire equilibrium depended upon the strictest rectitude both within government and among the people at large. To the eighteenth century mind republicanism denoted a political and moral condition of rare purity, one that had never been sustained by any major nation. It demanded extraordinary social restraint, what the age called “public virtue,” by which each individual would repress his personal desires for the greater good of the whole. Public virtue, in turn, flowed from men’s private virtues, so that each individual vice represented a potential threat to the republican order. Republicanism, like Puritanism before it, preached the importance of social service, industry, frugality, and restraint. Their opposing vices—selfishness, idleness, luxury, and licentiousness—were inimical to the public good, and if left unchecked, would lead to disorder, corruption, and ultimately tyranny. The foundation of a just republic consisted of a virtuous and harmonious society, whose members were bound together by mutual responsibility.

What the Roberts Court does, in its Citizens United and other pro-corporatist decisions, is remove any burden of public virtue from those people most driven by selfishness and love of luxury. In fact, the Roberts 5 coheres with the typical wrong-wing view that in a market economy, the rich become rich by their industry and frugality – ignoring the historical evidence that many of the wealthy today are wealthy by accident of birth, or by the depredations of financial capitalism, rather than the socially useful functions of industrial capitalism. Reading Roberts’ majority decision, its invocation of “the market” and fawning concern for corporations is quite jarring when compared to many other famous decisions rendered before the Roberts Court arrived on the scene to foul our republican heritage. From pages 38-39 of Roberts’ Citizens United ruling:

Austin interferes with the “open marketplace” of ideas protected by the First Amendment… (ideas “may compete” in this marketplace “without government interference”); McConnell, supra, at 274 (opinion of THOMAS, J.). It permits the Government to ban the political speech of millions of associations of citizens. See Statistics of Income 2 (5.8 million for-profit corporations filed 2006 tax returns). Most of these are small corporations without large amounts of wealth. See Supp. Brief for Chamber of Commerce of the United States of America as Amicus Curiae 1, 3 (96% of the 3 million businesses that belong to the U. S. Chamber of Commerce have fewer than 100 employees)… (more than 75% of corporations whose income is taxed under federal law, see 26 U. S. C. §301, have less than $1 million in receipts per year)…. The Government has “muffle[d] the voices that best represent the most significant segments of the economy.” By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and view-points from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of “destroying the liberty” of some factions is “worse than the disease.” The Federalist No. 10, p. 130 (B.Wright ed. 1961) (J. Madison). Factions should be checked by permitting them all to speak, see ibid., and by entrusting the people to judge what is true and what is false.”

Roberts’ enlisting of James Madison is particularly galling, because it is precisely in The Federalist No. 10, that Madison warns that factions most often arise based on economic interests. In preparation for the Constitutional Convention, Madison made notes of the defects of the Articles of Confederation. Vices of the Political System of the United States These short notes amplify and clarify Madison’s thinking on the formation of a new government. Here is a section dealing with the problem of emerging oligarchies:

6. Want of Guaranty to the States of their Constitutions & Laws against Internal Violence.

According to republican theory, right and power being both vested in the majority, are held to be synonymous. According to fact and experience, a minority may in an appeal to force, be an overmatch for the majority: 1. If the minority happen to include all such as possess the skill and habits of military life, & such as possess the great pecuniary resources, one third only may conquer the remaining two thirds."

I added emphasis to show that one scenario Madison feared was that accumulated wealth would achieve so much political power that republican rule would be subverted or obstructed. It was a historical cycle the Madison and other Founders had identified from their close study of the rise and fall of other republics, especially Athens and Rome: political power in a republic begins to be amassed by an oligarchy that has the wealth to buy and political favor; this oligarchy eventually subverts and corrupts the republic, causing a dissolution of order and rise in chaos; leading the imposition of tyranny to restore order. In fact, a key tenet of political belief at the beginning of our republic was that a general equality in income and wealth was essential to the maintenance of republican government. In October 1787, Noah Webster (who two decades later would publish his famous dictionary) issued a pamphlet entitled, Examination of the Leading Principles of the Federal Constitution, which was probably the second most influential tract, after the Federalist Papers, arguing in favor of ratifying the Constitution.

Wherever we cast our eyes, we see this truth, that property is the basis of power; and this, being established as a cardinal point, directs us to the means of preserving our freedom. Make laws, irrevocable laws in every state, destroying and barring entailments; leave real estates to revolve from hand to hand, as time and accident may direct; and no family influence can be acquired and established for a series of generations--no man can obtain dominion over a large territory--the laborious and saving, who are generally the best citizens, will possess each his share of property and power, and thus the balance of wealth and power will continue where it is, in the body of the people.

A general and tolerably equal distribution of landed property is the whole basis of national freedom: The system of the great Montesquieu will ever be erroneous, till the words property or lands in fee simple are substituted for virtue, throughout his Spirit of Laws.

Virtue, patriotism, or love of country, never was and never will be, till mens' natures are changed, a fixed, permanent principle and support of government: An equality of property, with a necessity of alienation, constantly operating to destroy combinations of powerful families, is the very soul of a republic--While this continues, the people will inevitably possess both power and freedom; when this is lost, power departs, liberty expires, and a commonwealth will inevitably assume some other form.

The Citizen's United decision overturns Madison's conception of, and concern about, factions. It entirely ignores the problem Madison took note of in his preparations for the Constitutional Convention: a relatively small faction of the rich and wealthy can destroy the republic by imposing their will on the majority through their purchase of political power and favor.

Hager and Leas argue that the Roberts 5 did not rely on or even invoke the concept of corporate personhood. Neither does Justice Stevens in his booming dissent. On pages 34 through 41, Justice Stevens reviews the historical record as to how corporations were viewed by the Founders, making quite clear that corporations were never considered on the same level as individual human citizens.

In the context of election to public office, the distinction between corporate and human speakers is significant. 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. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

Stevens gives us a parade of citations and quotes showing that there is a far-reaching, important, and vital American tradition of this inherently suspicious view of corporations, including the great classic quote from Chief Justice John Marshall’s 1819 decision in Trustees of Dartmouth College v. Woodward: , “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it” Stevens proceeds to elaborate this traditional view of corporations:

Those few corporations that existed at the founding were authorized by grant of a special legislative charter. Corporate sponsors would petition the legislature, and the legislature, if amenable, would issue a charter that specified the corporation’s powers and purposes and “authoritatively fixed the scope and content of corporate organization,” including “the internal structure of the corporation.” J. Hurst, The Legitimacy of the Business Corporation in the Law of the United States 1780–1970, pp. 15–16 (1970) (reprint 2004). Corporations were created, supervised, and conceptualized as quasi-public entities, “designed to serve a social function for the state.” Handlin & Handlin, Origin of the American Business Corporation, 5 J. Econ. Hist. 1, 22 (1945). It was “assumed that [they] were legally privileged organizations that had to be closely scrutinized by the legislature because their purposes had to be made consistent with public welfare.”R. Seavoy, Origins of the American Business Corporation, 1784–1855, p. 5 (1982). The individualized charter mode of incorporation reflected the “cloud of disfavor under which corporations labored” in the early years of this Nation. 1 W. Fletcher, Cyclopedia of the Law of Corporations §2, p. 8 (rev. ed. 2006); see also Louis K. Liggett Co. v. Lee, 288 U. S. 517, 548–549 (1933) (Brandeis, J., dissenting) (discussing fears of the “evils” of business corporations); L. Friedman, A History of American Law 194 (2d ed. 1985) (“The word ‘soulless’ constantly recurs in debates over corporations. . . . Corporations, it was feared, could concentrate the worst urges of whole groups of men” ). Thomas Jefferson famously fretted that corporations would subvert the Republic.

….The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.55 While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends. Even “the notion that business corporations could invoke the First Amendment would probably have been quite a novelty,” given that “at the time, ). the legitimacy of every corporate activity was thought to rest entirely in a concession of the sovereign.).” (Emphasis mine.)

That the Roberts 5 were consciously and seditiously using their positions to rewrite the laws to further facilitate the consolidation of power by corporatist oligarchs, is seen by the highly irregular and unusual method by which the Roberts 5 brought the Citizens United case before them for decision. Justice Stevens’ scorn and derision is literally palpable on page 4 of his dissent:

Our colleagues’ suggestion that “we are asked to reconsider Austin and, in effect, McConnell,” ante, at 1, would be more accurate if rephrased to state that “we have asked ourselves” to reconsider those cases.

Hager and Leas pointed to an August 10, 2009 opinion piece by Adam Cohen in the New York Times which ably summarized the shocking machinations of the Court’s corporatists in bringing this case before them:

The court has gone to extraordinary lengths to hear the case…. It took a case, Citizens United v. Federal Election Commission, in which the ban on corporate contributions was not a central issue; told the parties to prepare legal briefs on the ban’s constitutionality; and rushed to put oral arguments on the calendar in September before the new term even starts….

If the conservative justices strike down the ban, they would be doing many things they disavow. They would be substituting their own views for the will of the people, expressed through Congress. They would be reading rights into the Constitution that are not expressly there, since the Constitution never mentions corporations or their right to speak. And they would be overturning the court’s own precedents.

Constitutional law scholar Laurence H. Tribe, who argued and lost Bush v. Gore wrote that the Citizens United ruling by the Roberts 5

marks a major upheaval in First Amendment law and signals the end of whatever legitimate claim could otherwise have been made by the Roberts Court to an incremental and minimalist approach to constitutional adjudication, to a modest view of the judicial role vis-à-vis the political branches, or to a genuine concern with adherence to precedent…

That the Roberts 5 are consciously and seditiously acting as one percenters in service to the narrow interests of one percenters is further indicated by the decisions handed down since Citizens United. Hager and Leas, again:

The relatively ignored 2011 Arizona Free Enterprise v. Bennett decision, which overturned an Arizona public campaign funding law adopted by referendum, is probably more important than Citizens United. This is because it struck down a way of using public funding to effectively compete with private interest money in elections. The Roberts 5 thus showed they would brook no workarounds of their decisions that have the effect of mandating corrupt elections.

(For more on Arizona Free Enterprise v. Bennett Seneca Doane's reclisted diary here, and this devastating and comprehensive analysis by a DailyKos front pager.)

Hager and Leas write that

The Citizens United decision is constitutionally flawed for two reasons that have nothing to do with corporate personhood. Each of these flaws provides adequate grounds for Congress to overturn not just one, but all of the Supreme Court decisions relating to private money in politics since 1976.
….First, the Roberts 5 stepped outside the court's constitutional authority by taking up and deciding cases concerning election integrity. Maintaining the integrity of elections was a political question of such importance to the founding fathers who wrote the Constitution that in Article I, Sections 4 and 5, they specifically consigned to the elected Congress both regulation and judging of the manner of holding elections. The founders rightly understood that Congress would be far more subject to popular pressure to maintain election integrity than would the appointed-for-life members of the court. Taking up a case and overturning a law that provides for election integrity infringes a power specifically assigned to Congress, thereby undermining the separation of powers. This also violates the court's own well-established precedent of refusing jurisdiction concerning political questions. The court followed this traditional rule defining the boundary between judicial and legislative issues from the 1803 decision in Marbury v. Madison until the Buckley decision in 1976. Every decision widening the gates to money in politics since Buckley, including Citizens United, has violated the same constitutional principle prohibiting court jurisdiction over such political questions.

Second, even if the court had constitutional authority to take up an issue of election integrity, which it does not, the court overruled a fully supported legislative finding that private money in elections causes sufficient harm to justify its regulation, even accepting the distorted view that money in the form of electioneering expenditures is the kind of speech the First Amendment was intended to protect.
By contrast, the public has a far more profound and compelling interest in preventing the death of representative democracy by allowing continued auction of its elections and laws to wealthy corporations. Corporations profit from the government policies and government contracts they receive in exchange for their payoffs to and for politicians. For example, a study done by Raquel Alexander, Susan Scholz, and Stephen Mazza of the University of Kansas found a financial return on investment of $220 for every dollar spent on lobbying, including election-cycle lobbying. This and other evidence of corruption was found to be unimportant by the pro-corporate Roberts 5 in Citizens United. The court instead willfully misinterpreted the language of the First Amendment as providing such absolute right to an abstract listener to hear corporate advertisements as to overshadow the public's greater interest in preventing private money from corrupting elections and government, disenfranchising the many by the money, and causing elected politicians to divert federal and state money toward their corporate benefactors.

The typical conservative view of the purpose of a corporation is to “maximize shareholder value” and “to make a profit.” Yet here we have the conservatives on the Supreme Court amending that view to include “being a vehicle for the expression of First Amendment rights.” Uniting these two views puts the Citizens United ruling in a stunningly utilitarian light that shows once again how the Roberts Court has perverted the original intent of the Constitution. The astounding return on investment of $220 for every dollar spent on lobbying is possible because it is economic rent at work in its worst manifestations. No actual investment in the real economy has ever or will ever give such a stupendous rate of return.

Clearly, a corporation thus unleashed within the political process is the purest concentration of economic faction Madison warned about in Federalist Paper Number 10. So, once again, we are brought back to the Founders’ intent of erecting a system of checks and balances designed to preserve and protect a republican form of government, and the inevitable threat concentrated economic power poses to the Founders’ design.

Does this mean that I am opposed to an amendment explicitly declaring that corporations are not people and there do not have inalienable rights? No. But I do not see such an amendment, and the fight for it, as the ends itself. Rather, I see it as the means to an end – an increasingly popular vehicle by which our fellow citizens will have to relearn the principles of republican government, and be forced to recognize that the American conservative movement and the current incarnation of the Republican Party are wholly owned tools of the new oligarchies of banksters and corporatists, and are thus by their very nature baneful agents of sedition and treason working actively to destroy republican government. And that this sedition and treason is nothing but a repeat of the historical cycle identified by the Founders, of how a republic succumbs to the powers of concentrated wealth, degenerates into an oligarchy, and slouches toward despotism.