In Bush v Gore, the United States Supreme Court, in an unprecedented ruling that proclaimed it should not be used as precedent, decided the 2000 presidential election by a 5-4 decision. Bush v Gore stands as one of the most legally dishonest and the most politically partisan opinion ever issued by the Court.
That is, until the Court hands down its decision in Citizens United v Federal Election Commission, involving a ruling by the FEC that barred a rightwing hit group, partially financed by a corporation, from running a hatchet-job film about Hillary Clinton in the days prior to an election in violation of the McCain-Feingold law.
By another 5-4 decision the Supreme Court will effectively turn the United States government over to corporations, i.e., back to the Republican Party, this time for keeps. The major corporations -- total profits of more than $600 billion per year for the top Fortune 100 -- will be permitted to advertise without limitation in Congressional, Senate and Presidential elections.
Small-donor internet fundraising that had begun to democratize a still-corrupt political system will be overwhelmed. Foreigners who own all or parts of US corporations will now have an influence in the outcome of our elections.
The (bogus) rationale will be that a private corporation is 'merely' an association of people and it already has the status of a legal person. If natural people have First Amendment rights, then a legal person should have the same rights. Thus, restricting corporations is a violation of the First Amendment.
Just as former Chief Justice Rehnquist had never been able to find violations of equal protection until he met a hanging chad in Bush v Gore, similarly we are about to be treated to Justice Scalia ignoring the 'original intent' of both the corporate structure and the First Amendment to contrive a violation of personal rights of an unnatural person.
This is, of course, utter nonsense. Private corporations are creatures of the State, whereas the State is a creature of natural persons. The "original intent" of the corporate entity was that, in exchange for protection from liability of the owners, a corporation could be created for a limited time and for a limited purpose. Those limitations did not last very long, and corporations were soon allowed to exist in perpetuity and to have broad, general purposes encompassing anything that was not illegal.
Since its individual owners were protected against personal liability, the corporation itself was liable for wrongdoing. In the case of a partnership or individual proprietorship, one can sue the partners or the individual owner. But, one cannot sue a building. Hence, the concept arose that the corporation itself was a 'legal person' to provide a mechanism for legal redress against the entity.
In science-fiction robots become more intelligent and more powerful than their creators, and wrest control from humans. Because of the legal nicety of the corporation, established solely to promote commerce, we are now going to be treated to the permanent takeover of the United States government by these humanly-created legal fictions.
Nor are corporations 'merely' an association of natural persons Rather, they are commercial enterprises whose purpose is to make profits.
Moreover, corporations often have foreign shareholders. Although barred as individuals from participating either through financial contribution or voting, foreigners will now be able to use the corporate fiction of a 'legal person' to influence profoundly the outcome of US elections.
The Supreme Court will soon allow corporate profits to be spent without limits to "preserve, protect and defend" not the Constitution, but those profits.
Swiftboats will be the fastest growing industry in the United States.
If the disastrous Bush presidency did not provide a sufficiently clear picture of what the country will become under corporate control, here are a few glimpses: financial regulation, or breaking up the banks, that is already destined to be a joke, will not even be on the radar screen. Middle-class workers who have not seen wages keep pace with productivity for two decades will fall even further behind. Healthcare reform? Whatever is passed will be gutted, and insurance companies will again be able to purge you from their rolls when you become ill. Clean energy? It will become a punchline. Taxes to pay for education, for veterans' care, for food stamps, for unemployment insurance -- yeah, right.
Regulation of any sort? Clean air? Clean water? Mine safety rules? Insider trading? Capital limits on banks? Net neutrality? Ha. ha, ha, ha. ha......
Perpetual war, fought by other peoples' children? Social security trust fund invested in the stock market? Limitations on medicare? Reductions in Medicaid and foodstamps and children's health? Prayer in public schools? Overturning Roe v Wade? You betcha!
Is there anything that can be done? Probably not, but there is enough at stake that it is worth a shot. Send Justices Anthony Kennedy, and Samuel Alito, a letter. Scalia (and thus Thomas) are unreachable, and Roberts is assuredly in the bag although he has not signaled their intentions. Although Justice Kennedy has signaled his intent to provide the 5th vote, he seems to be the most persuadable in general. With Alito, perhaps just hope that his background may help him see the larger picture. Here is a suggested letter:
Re: Citizens United v FEC
Dear Justice Kennedy (or Alito):
I write out of deep concern for the future of our democracy. I understand that you are about to decide Citizens United v FEC to free corporations from the restrictions of the McCain-Feingold Campaign finance law on the basis of a finding that corporations are 'legal persons' and thus entitled to First Amendment protections just like natural persons.
To do so you will ignore the principal of stare decisis, as well as the original intent of both the First Amendment and the purpose of creating a corporation. Have the restrictions on corporations been so obnoxious that they warrant those departures?
There is nothing in the Constitution suggesting that 'unnatural' persons are entitled to such First Amendment protections. It is perfectly plausible and Constitutional to create an 'unnatural' person for certain limited purposes, such as commerce, without providing that 'unnatural' person all the rights and privileges of a natural person.
The original intent of the corporate structure, and the creation of the "legal person", was purely for commercial purposes. The original intent of the First Amendment was to provide citizens protection against government prohibitions of speech, worship and assembly.
Your colleague, Justice Scalia, proclaims his fidelity to the original intent of the drafters. Yet, he seems to be prepared to override original intent both of the corporate entity and the First Amendment.
A corporation is not 'merely' an association of persons. It is a commercial entity, with fealty to its shareholders who may be all over the world. It pursues the interests of those shareholders, not of our communities. Time and time again, when the choice is between country or community vs the corporation, corporations choose their own self-interest.
President Eisenhower warned us about the power of the military-industrial complex. President Roosevelt spoke of economic royalists that had brought the country to near-ruin. President Kennedy told the nation about a tiny handful of steel executives acting with utter contempt for the interests of the country.
The political economist John Kenneth Galbraith described one of government's roles to be a 'countervailing power' to big corporations to protect individual citizens. If those corporations can nonetheless buy the government, there will not be much 'countervailing' occurring. The disastrous Bush Administration unilaterally surrendered to corporations and the result was devastating the hopes, dreams and savings of at least one generation of Americans and perhaps two.
So, please, Mr Justice Kennedy, do not think of corporations abstractly as 'mere' collections of people, because they are not abstractions. They are very real, very powerful, and have already used their political and economic power to overwhelm the voices and interests of the American people.
That was not the original intent of establishing the legal structure of a corporation. It was not the original intent of the First Amendment to protect 'unnatural persons'.
Regulating corporations' political speech does no violence to the Constitution. De-regulating it does.
Moreover, once de-regulated, the power corporations wield will prevent any subsequent 'correction'. Once done, it is forever; forever is a long, long time.
Please, therefore, give a sober second-thought to what you seemed poised to do. That is, after all, what a Supreme Court Justice is supposed to do.