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Charlie Cray

Charlie Cray

Posted: January 25, 2010 07:29 PM

Dark Days for Democracy

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They've reloaded the Chamber and, unless we -- the body politic -- get off our backs, democracy will soon be dead.

I refer, of course, to last week's Supreme Court's decision (Citizens United v. FEC), which gave corporations the go-ahead to spend unlimited amounts of money to influence elections.

The ruling is one of the biggest direct shots at democracy taken since Lewis Powell outlined a multi-decade strategy to squelch the voice of citizens and enthrone corporate rule.

Powell, who was appointed to the Court by President Nixon just two months later, wrote his now-infamous memo for the U.S. Chamber of Commerce to urge its member corporations to fight a multi-pronged war by targeting three key institutions as the battlefields in our society where the shape of democracy would be debated and determined -- the universities, the media and, especially, the courts.

The Chamber and its allies at NAM and the Business Roundtable quickly mobilized to put Powell's plan into action, with the help of various ideological philanthropists along the right wing/corporate axis (e.g. Scaife, Olin, Coors, Koch, Smith Richardson, and Bradley).

Together, they built up a phalanx of right-wing think tanks, public relations operatives, lobbying outfits, media whores and corporate-friendly legal foundations -- from the Federalist Society to Washington Legal Foundation. Together, these groups constitute what has been called (no doubt to smooth over the ideological implications) a "business civil liberties" movement.

In his memo, Powell advised the corporate elites that "strength lies in organization, in careful long-range planning and implementation, in consistency of action over an indefinite period of years, in the scale of financing available only through joint effort, and in the political power available only through united action and national organizations."

And that's just what they did. As Lee Drutman and I wrote in our book describing what we must do about the excesses of corporate power (The People's Business: Controlling Corporations and Restoring Democracy), "Powell's point was simple: develop a multifront plan of attack and patiently implement it." Four decades later, the result has been an all-out attack upon anyone who might pose a "countervailing" threat to business' power, as John Kenneth Galbraith described labor and other institutions' role vis-à-vis the corporation.

Take trial lawyers, for example. Back in 2006, Alison Frankel declared in the American Lawyer that it was "over": After a 20-year tort "reform" campaign by the Chamber, industry and its allies had effectively extinguished the ability of injured workers, defrauded consumers and bankrupt investors to pursue justice through civil litigation.

(If you were around during the 80s, you will recall how much more of a boogie man "trial lawyers" seemed to be, Now when the Right sounds such alarms -- like they did during the health care debate -- it seems as ridiculous as when the warmongers compare the next tinpot dictator to Hitler).

And so it goes. Just as they did with their "tort deform" campaign, the Chamber and other business ideologues have organized strategic campaigns to drive litigation to Supreme Court to expand the corporate agenda (often dragging traditional liberal groups -- such as unions and the ACLU -- along, as they did in the Citizens United case), especially in the area of First Amendment rights.

The Citizens United decision is therefore the latest (and worst) result of a long campaign to (improperly) imbue corporations with constitutional rights originally intended for real "people." And although the history of decisions that have done so extends way, way back -- to the Santa Clara case (establishing corporate personhood doctrine) and beyond -- the point is that right now, corporate America is busily undoing our ability to restrain their "speech" -- whether that means commercial speech (e.g. overturning any bans on commercial advertising in schools, ads urging off-label drug use, or the do-not-call registry as a form of restraint against free speech), corporate control over the media through deregulated ownership rules (recall how under the Powell FCC the proposal to loosen media ownership rules was framed around the speech "rights" of broadcasters, rather than the right of communities to structure the media to facilitate democratic discourse), and corporate domination of politics. (How long before the Roberts Court agrees to hear another case challenging the 1907 Tilman Act?)

As Ruth Marcus pointed out in the Washington Post, on its face the Citizens United decision was astonishing for the shoddiness of its logic.

At the very least, it should disturb anyone who remembers how Roberts and Alito kept referring to stare decisis (respect for precedent) in their nomination hearings to witness them overturning decades-old decisions when the facts in the case before them didn't even warrant such a broad examination of the question of corporate speech. The Roberts Court abandoned the usual practice of adjudicating non-constitutional claims before constitutional ones -- a radical departure that indicates how far it may be willing to go to serve the "business civil liberties" agenda.

While the immediate effect of the decision is likely to be a surge in corporate cash in the fall elections, it also signals something bigger and much more frightening: The opening salvo of an open and sustained attack by the Court upon the rights of the People to govern the behavior of corporations, which, if successful, will eviscerate what's left of American democracy.

It's tempting to toss up my hands and leave it there, but that would be unnecessary catastrophizing, because there is the slim hope that we can address some of the worst impacts of this decision. To start, we need to push for public financing of elections (as in Senator Dick Durbin's Fair Elections Act), as well as other proposals that would require affirmative shareholder approval before executives are allowed to spend out of corporate treasury; and a "pay to play" restriction against campaign expenditures by lobbyists and companies (contractors) wishing to do business with the federal government.

But add all of those up and they will not be nearly enough.

Which is why we need to go deeper into the framework of law itself. E.g., two coalitions have put out the call for a Constitutional Amendment restricting the rights of corporations. To learn more, go to Free Speech for People and Move to Amend.

It's a good start for what will be a long, difficult struggle to roll back corporate rule.