The Supremes Sing Their Song

This article was originally scheduled to run in last month’s (February) Viewpointe in addition to the article that was printed. As a result of my error in submitting it to the publisher, it was omitted. However, much of the following was written the day after the Supreme Court’s historic decision, one that related specifically to another article that had been published in the November issue of Viewpointe under the headline, “The Supremes are Singing From the Wrong Songbook.” That article presciently warned that a Supreme Court opinion might be forthcoming that could revolutionize the way that election campaigns were funded. The resulting decision did just that –– thus the following article. It has been updated with information not available at the time of the first writing.

The day that Japan bombed Pearl Harbor in 1941, Franklin Roosevelt called December 7 th, “a Day of Infamy.” January 21 st of this year may be viewed in the history books as the day this country was transformed from a democracy into a corpocrasy. Yes, that term (sometimes designated as Corporatocracy ), is a real word, defined in Wikipedia as “a form of government where corporations, conglomerates, or government entities with private components, control the direction and governance of a country. This is sometimes considered to be a form of fascism.” We may soon find ourselves revising our country’s name into “The United States of American Corporations.” (Although, foreign owned corporations may also be involved –– see below). This radical and unprecedented mutation can be attributed to the actions of just one individual –– The Chief Justice of the Supreme Court, John Roberts, abetted by four of his conservative colleagues.

In essence, the Supreme Court, in the case of United Citizens vs. Federal Election Commission, decided that under the First Amendment to the Constitution, corporations (as well as labor unions) have far reaching entitlements to spend as much money as they wish in order to influence not only elections of candidates, but to manipulate pending and future legislation as well. Politicians, recognizing that unfettered amounts of money could now be spent, either for or against their candidacy, could very well be more predisposed to vote in favor of corporate interests.

Here is how the New York Review of Books reviewed that decision in its February 25 th edition: “ Against the opposition of their four colleagues, five Supreme Court justices have now guaranteed that big corporations can spend unlimited funds on political advertising in any political election. In an opinion written by Justice Anthony Kennedy and joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas, the Court overruled established precedents and declared dozens of national and state statutes unconstitutional, including the McCain-Feingold Act, which forbade corporate or union television advertising that endorses or opposes a particular candidate.”

Counteracting that argument, the very conservative Heritage Foundation viewed the decision in this manner. “ The Court, led by Justice Kennedy, held that the First Amendment stands against attempts to distinguish among different speakers, which may be a means to control content. In so doing, the Court declared that the government couldn’t impose restrictions on certain disfavored speakers such as corporations. The Court also found that free speech rights under the First Amendment do not depend on a speaker’s financial ability to engage in public discussion – the fact that some speakers may have more wealth than others does not diminish their First Amendment rights.”

While corporations will not be allowed to contribute directly to candidates, they will now be free to run “issue” and “advocacy” advertising for or against the stated views of specific candidates. Considering the almost unlimited funds available to corporations, significantly more so compared to individuals and even unions, any legislative actions being considered could also be controlled and channeled. This will obviously have a tremendous influence on how elections will be conducted, and undoubtedly place enormous pressure on how political candidates express their views. (If you question whether money actually influences elections, consider this: In 2008, between 93% and 94% of House and Senate seats were won by the candidate who spent the most amount of money).

Evan Bayh, probably the most conservative Democrat in the Senate, who recently announced he would not run for reelection, penned an op-ed piece in The New York Times last month. He envisaged a likely real world outcome of the Supreme Court decision, writing, “I can easily imagine vulnerable members approaching a corporation or union for support and being told: ‘We’d love to support you but we have a rule. We only support candidates who are with us at least 90 percent of the time. Here is our questionnaire with our top 10 concerns. Fill it out.’ Millions of dollars now ride on the member’s response. The cause of good governance is not served.”

There is another little recognized unintended consequence of the Supreme Court decision. As pointed out in a Newsweek article, “ A majority of large businesses [American registered corporate subsidiaries] are now owned by foreign entities, and this means international corporations could pour tons of money into the United States political scene, potentially swaying the political climate.” In fact, Justice Stevens, who opposed the Court decision, also wrote that the majority’s position “would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.”

Consider the implications of Citgo (Hugo Chavez’s Venezuelan oil company), and hundreds of other foreign-owned American Corporations and American subsidiaries of Multi-National Corporations (Chinese, Japanese, South Korean, Australian, Middle Eastern, you name it) will now be legally entitled to buy into our already lobby ridden, corrupt political system.

Unknown to most, is the existence of a lobbying group, the Organization for International Investment, which represents U.S. subsidiaries of foreign corporations. There are about 160 major corporations in the group, including the domestic subsidiaries of brands such as Belgium's Anheuser Busch, Netherlands-based Royal Dutch Shell PLC and Sony Corp. of Japan. Think about this: Based on the Supreme Court decision, foreign owned pharmaceutical companies, such as Novartis, Bayer, Glaxo Smith Kline, Novo Nordisk, Alcon, and five others, all members of the above lobbying organization , could pool huge amounts of money in order to run ads opposing whatever health plan reform is debated in Congress.

Proponents of this court action maintain that it upholds the right of free speech for corporations. They endorse the concept of “corporate personhood,” equating a corporation’s prerogatives with that of human individuals. As disclosed in last November’s Viewpointe article, the Supreme Court has never specifically or officially decided the concept of “personhood”. In fact, Fortune magazine, not known as a bastion of liberal thinking, summed this up as follows: “ In this case, the text of the First Amendment said nothing one way or the other about the degree to which corporations might have free speech rights, and historians were unable to find any discussion of the concept of "corporate speech" in any contemporaneous writings. In his dissent Stevens argues that “for all we know, the framers would have considered the notion of a tongueless abstraction engaging in ‘speech’ as oxymoronic.”

In addition, during his nomination hearings, Justice Roberts assured his Senate interrogators that he believed strongly in the concept of precedence. The legal term for precedence, “stare decisis”, is defined in Black's Law Dictionary as, “Let the decision stand, to adhere to precedence and not unsettle things which are established.” Citing Justices Scalia, Cardoza, and Frankfurter, all of whom acknowledged the critical importance of upholding the principles of precedence, Senator Spector queried Roberts, “Would you agree with those articulations of the principles of stare decisis, as you had contemplated them, as you said you looked for stability in the law?” Roberts replied, “Yes, Mr. Chairman, I would.” Roberts’ actions in this case contradict and belie his testimony.

The possibility of this development was envisaged three months ago in the November issue of Viewpointe under the headline “Are the Supremes Singing From the Wrong Songbook.” At that time, very little attention was paid by the national media to what was deemed to be a low profile, relatively inconsequential case. Justice Roberts, instead of declaring a narrowly based decision on the merits of the case itself, broadened the issue to incorporate the question of whether the First Amendment rights of free speech for corporations countermanded over 100 years of precedent.

Updating what was written in the November Viewpointe article: “100 years of Supreme Court precedents [have now been overturned, a step that] could be viewed as an act of radical judicial activism, a practice considered anathema by many –– ironically, [most strongly enunciated] by the very Conservative Supremes who [have voted] for the change.” The article continued, stating that should the Court vote the way it did, “the floodgates will open for an unrestricted tsunami of corporate money not only influencing, but directing who is elected and what legislation should prevail.”

All we can do now is watch the tsunami of money overwhelm and corrupt our electoral process more so than ever, and pray that a corpocracy does not crush our democracy. It appears that the Supremes not only sang from the wrong songbook, they sang the wrong song, and for good measure, it was totally off-key.