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Independent business advocates condemn Supreme Court ruling allowing unlimited corporate money in US elections, join public interest groups in launching campaign to amend Constitution

February 17th, 2010 No comments

No, I didn’t write this press release (but I did add emphasis!). I note my related posts are here.

DATE: January 21, 2009

FOR IMMEDIATE RELEASE

CONTACT: Jeff Milchen, American Independent Business Alliance
406-582-1255  

INDEPENDENT BUSINESS ADVOCATES AND PUBLIC INTEREST GROUPS CONDEMN SUPREME COURT’S RULING ON CORPORATE MONEY IN ELECTIONS

CALL FOR CONSTITUTIONAL AMENDMENT TO OVERTURN COURT DECISION

BOZEMAN, MT – A coalition of public interest organizations and
independent business advocates condemned today’s ruling by the US
Supreme Court allowing unlimited corporate money in US elections, and
announced that it is launching a campaign to amend the United States
Constitution to overturn the ruling.

The coalition
includes the public interests groups Voter Action, Public Citizen, and
the Center for Corporate Policy, as well as the American Independent
Business Alliance (AMIBA). They contend the Court’s ruling in Citizens United v. FEC
poses a serious and direct threat to democracy and to fair market
competition. Immediately following the Court’s ruling, the groups
unveiled a new website – FreeSpeechforPeople.org – devoted to this campaign.

The Supreme Court has leaped into unabashed activism on behalf of
corporate power,
” said Jeff Milchen, co-founder of the American
Independent Business Alliance. “Some reports have wrongly suggested the
Roberts Court is ‘pro-business,'” said Milchen, “but overturning these
precedents is radically anti-business when viewed from the perspective
of America’s six million or so independent businesses.


“Independent business owners often face a decidedly uneven playing
field when competing against major corporations due, in part, to tax loopholes, subsidies, federal handouts
and preferential treatment bestowed by politicians,” added Milchen.
“Opening electoral contests to direct corporate campaign spending
further undermines fair market competition and recklessly endangers
democracy.”

AMIBA is a
non-profit network of 70 communities across the U.S. that have formed
local Independent Business Alliances to help local independent
businesses compete successfully and prevent major chains from driving
out local businesses.

“Free speech rights are for people,
not corporations,” says John Bonifaz, Voter Action’s legal director.
“In wrongly assigning First Amendment protections to corporations, the
Supreme Court has now unleashed a torrent of corporate money in our
political process unmatched by any campaign expenditure totals in US
history. This campaign to amend the Constitution will seek to restore
the First Amendment to its original purpose.”

The public
interest groups say that, since the late 1970s, a divided Supreme Court
has transformed the First Amendment into a powerful tool for
corporations seeking to evade democratic control and sidestep sound
public welfare measures. For the first two centuries of the American
republic, the groups argue, corporations did not have First Amendment
rights
to limit the reach of democratically-enacted regulations.

“Today’s ruling, reversing longstanding precedent which prohibits
corporate expenditures in elections, now requires a constitutional
amendment response to protect our democracy,” says Jeffrey Clements,
general counsel to Free Speech for People.

Jennifer Rockne, AMIBA’s director, added “Even before the banking meltdown, ninety percent
of Americans thought large corporations have been granted too much
power. It’s a remarkable moment for the Court to re-invent the
Constitution to expand corporations’ influence and a slap in the face
to America’s independent business owners.”

In support of
their new campaign, the groups point to prior amendments to the US
Constitution which were enacted to correct egregiously wrong decisions
of the US Supreme Court directly impacting the democratic process,

including the 15th Amendment prohibiting discrimination in voting based
on race and the 19th Amendment, prohibiting discrimination in voting
based on gender.

“The Court has invented the idea that
corporations have First Amendment rights to influence election outcomes
out of whole cloth,” says Robert Weissman, president of Public Citizen.
“There is surely no originalist interpretation to support this outcome,
since the Court created the rights only in recent decades. Nor can the
outcome be justified in light of the underlying purpose and spirit of
the First Amendment. Corporations are state-created entities, not real
people. Corporate spending on elections defeats rather than advances
the democratic thrust of the First Amendment.”

Milchen
believes the effort will succeed, but makes no predications on a
timeline. “This will be a sustained campaign that will ultimately unite
the vast majority of Americans who recognize the Bill of Rights is for
human beings, not corporations,” said Milchen. “We have no illusions
about the size of the task we are undertaking, but five Justices have
effectively outlawed the republican form of government promised by our
Constitution. We will be as patient as necessary to succeed.”

For more information on the constitutional amendment campaign, see freespeechforpeople.org .

-30-

Related articles and websites:

Brenda Wright, Director of Demos and co-author of the amicus brief we submitted for this case, on the decision http://www.acslaw.org/node/15160

Not all business sided with the Court ruling:
http://www.freespeechforpeople.org/node/34

Breaking News! "Let’s Franchise Corporate Democracy!" In wake of #CorpSpeak decision, MD company running for Congress signs first franchisee, in Va

February 16th, 2010 No comments

I reported two weeks ago that a PR firm, Murray Hill, Inc., had embraced the recent decision by the conservative, non-activist majority of the Supreme Court which resoundingly affirmed that the Founding Fathers had granted First Amendment rights to corporate “persons” by embarking on a campaign to be elected to Congress in Maryland.

It has been heart-warming to hear that Murray Hill has been finding much interest, not only from the public and press, but from other companies as well, and so  on February 15 – George Washington’s Birthday – Murray Hill announced its first agreement to franchise this portion of its business model to another company, which has decided to run for a Congressional seat in Virginia.

According to Murray Hill’s press release (emphasis added), speaking through designated human, Eric
Hensal
and Campaign Manager William Klein:

Combating prejudice and bias against corporate persons is one of the
primary motivations
behind Murray Hill Inc.’s run for office.

“Anti-corporate
bigotry has no place in our great democracy,” Murray Hill Inc. says.
“Our forefathers lived and died for the inalienable rights of every
person, human and corporate, to pursue life (or its corporate
equivalent), liberty and the pursuit of happiness (or profit).”

The
first corporation to enter into a franchise agreement with Murray Hill
Inc. is Computer Umbrella Inc. of Sterling Virginia,  which my sleuthing shows is partnered with Microsoft, Dell, HP and Netgear Powershift. Jonathan StewartJonathan Stewart, a US Army veteran who founded Computer Umbrella, is Designated Human for the firm and is charting its run for U.S. Congress in Virginia’s 10th District. Says Stewart,

“We
are proud to embrace the Murray Hill Inc. Brand. From
steel to silicon, it’s America’s entrepreneurs who find and exploit the
new markets. The democracy market in Washington DC today looks like
Silicon Valley 30 years ago. CUI wants to position itself as early
leader in this emerging market along with Murray Hill Inc.”

I was alerted to this breaking news by becoming a fan of Murray Hill’s Facebook page, Murray Hill Inc. for Congress. The Facebook page briefly describes Murray Hill’s purpose as follows:

Until now, corporations influenced politics with high-paid lobbyists
and backroom deals. But today, thanks the supreme court, corporations
have all the rights the founding fathers meant for us.

That’s why Murray Hill Inc. is running for congress.

Here is more background on Murray Hill’s objectives, from their initial press release (emphasis added):

“Until now,” Murray Hill Inc. said in a statement, “corporate
interests had to rely on campaign contributions and influence peddling
to achieve their goals in Washington. But thanks to an enlightened
Supreme Court, now we can eliminate the middle-man and run for office
ourselves.”

Murray Hill Inc. is believed to be
the first “corporate person” to exercise its constitutional right to
run for office. As Supreme Court observer Lyle Denniston wrote in his SCOTUSblog, “If anything, the decision in Citizens United v. Federal Election Commission
conferred new dignity on corporate “persons,” treating them — under the
First Amendment free-speech clause — as the equal of human beings.”

Murray
Hill Inc. agrees. “The strength of America,” Murray Hill Inc. says, “is
in the boardrooms, country clubs and Lear jets of America’s great
corporations. We’re saying to Wal-Mart, AIG and Pfizer, if not you,
who? If not now, when?”

Murray Hill Inc. plans
on spending “top dollar” to protect its investment. “It’s our
democracy,” Murray Hill Inc. says, “We bought it, we paid for it, and
we’re going to keep it.”

Murray Hill Inc., a
diversifying corporation in the Washington, D.C. area, has long held an
interest in politics and sees corporate candidacy as an emerging new
market.

The campaign’s designated human, Eric
Hensal, will help the corporation conform to antiquated “human only”
procedures
and sign the necessary voter registration and candidacy
paperwork. Hensal is excited by this new opportunity. “We want to get
in on the ground floor of the democracy market before the whole store
is bought by China.”

Murray Hill Inc. plans on
filing to run in the Republican primary in Maryland’s 8th Congressional
District. Campaign Manager William Klein promises an aggressive,
historic campaign that “puts people second” or even third.

“The
business of America is business, as we all know,” Klein says. “But now,
it’s the business of democracy too.” Klein plans to use automated
robo-calls, “Astroturf” lobbying and computer-generated avatars to get
out the vote.

I encourage all other supporters of the role of corporations in our great democracy to join me in supporting these exciting developments!

Those of you working in corporations might encourage your own firms to get in on the ground floor of the opportunity to cut out the middleman and to “own its own vote” (votes, if subsidiaries run in other districts) in Congress.

The rest of us can follow along with campaign developments here at the following social media sites, and by buying Murrray Hill Inc. for Congress goods:

YouTube Facebook Twitter

For those of you who might have missed it, here is Murray Hill’s kick-off video:

[View:http://www.youtube.com/watch?v=HHRKkXtxDRA&feature=player_embedded:550:0]

Problems with "Presidents Day" by Tom Eddlem at LewRockwell.com; but let’s not just "restore Congress," but amend Constitution to limit the federal government

February 15th, 2010 No comments

I encourage readers to take a look at the excellent essay by Thomas R. Eddlem, Down With the Presidency! A President’s Day Message, now up at LewRockwell.com.

I quote first a few key portions, and then note my further thoughts.

But the role of the president under the U.S. Constitution is not to make laws. It is simply to execute the laws passed by Congress. Article I, Section 1 of the U.S. Constitution begins: “All legislative powers herein granted shall be vested in a Congress of the United States.” Since the Constitution mandates that “all” law-making powers reside in the Congress, none are left for the president. The president’s job is that “he shall take care that the laws be faithfully executed” under Article II, Section 3 of the U.S. Constitution. Constitutionally speaking, the president was designed by the founders to be nothing more than the errand-boy of Congress.

Obama won’t be the first to take us from the “rule of law” to “rule by one man.” The Bush and Clinton administrations paved the way for unconstitutional executive orders. Clinton advisor Paul Begala told the New York Times of Clinton’s executive orders: “Stroke of the pen. Law of the Land. Kinda cool.”

President Bush and his neo-conservative theoreticians were even worse, as they posited the idea that the president was above all law. Former Bush Assistant Attorney General John Yoo’s recent book Crisis and Command contends presidential powers are unlimited by any law: “The executive was, rather, the servant of necessity, bound to act in accordance with, in the absence of, or in extraordinary emergencies, in defense of the republic, even contrary to regularly constituted law.”

This is the authoritarian personality long championed by both much of the Democratic leadership on the “left” and all of the neo-conservative Republicans on the “right.” Neo-conservatives like John Yoo explicitly endorse the idea of an omnipotent presidency that erases all the rights of the people. In his wordy and overpriced book, Crisis and Command, John Yoo claims the Constitution created a president with unlimited powers. The Constitution of the founders, Yoo wrote, “did not carefully limit the executive power, as [it] did with the legislative, because they understood that they could not see the future.”  …

This is what the modern presidency has become, a new Caesar whose powers are without limit.

Unfortunately the national leadership of the Republican Party has bought wholly into Yoo’s argument that government gives out rights instead of God, and that government ought not to “give” rights to people we don’t like. … 

It’s true that the average American Fox-servative remains ignorant of these facts, because we won’t hear the details of tortured innocents like Maher Arar, Khalid el-Masri, Omar Deghayes or the Tipton Three on the Fox News Channel. Nor will the Fox News Network tell its audience that the Obama administration has openly ratified all of these Bush-era attacks on the Bill of Rights except for the torture. Fox-servatives love the dictatorial state; they just wish it were run by the party of Pompey instead of the party of Caesar.

 

All of the really bad ideas that the federal government initiated throughout our nation’s history originated with the office of president: This includes most of the wars as well as warrantless surveillance, detention without trial, torture and all of the socialist legislation since the New Deal. Each was only adopted by the president pushing Congress, or more recently, by a president ignoring Congress altogether.

The presidency itself needs to be knocked down from its perch. The only thing that will save the American republic is a renewed focus upon the Congress and cutting down the presidency to size. The founding fathers designed the legislature – Congress – to be the dominant branch of a very small federal government.

My additional thoughts? I copy them from an email that I sent to Tom Eddlem (links added and typos fixed, nacherly):

Tom, great, perceptive piece at LewRockwell.
 
However, you missed that officially it’s still “Washington’s Birthday”, a focus that would help further illustrate how the Unitary President/CIC role has run out of control. Washington – who could have had much more power and refused – would certainly shudder at the “liberties taken” by later presidents (double entendre intended).
 
Also, why no mention of the obvious need to breathe more life into our federal system? One way to limit the power of the President (and Congress & Supreme Court) is to restore it to the states.

Those now pushing for a Constitutional Convention – from Larry Lessig seeking to limit corporate influence on elections and on legislation, to those who want to ensure that only people (not corporations) have Constitutional rights [and fix the glaring legislative error by the Supreme Court in granting Constitutional “free speech” rights to corporation (which are THINGS, not people)], and to those seeking to limit Commerce Clause and restore the 9th and 10th Amendments – could use more cheerleaders!

Not criticism, but food for thought.

WSJ: another stupid MSM #CorpSpeak organ, uninterested in Constitution and an agent for expanding our oppressive, corrupt & broken federal government

February 13th, 2010 No comments

[Here’s the title I preferred but was apparently too long. Dang. “WSJ reveals itself as another stupid MSM #CorpSpeak organ, uninterested in Constitutional or representative government, and perversely, as an ally with Dems in engendering a oppressive, arbitrary, corrupt & broken federal government”]

I’m referring to the remarkably thick-headed, crudely pro-corporate and anti-Democrat opinion piece by the WSJ’s opinion page deputy editor Daniel Henninger on February 11, “The Scalia v. Stevens Smackdown In President Obama’s view, corporations are anathema“.

Henninger is long on how the Supreme Court’s recent 5-4 decision in Citizens United v. Federal Election Commission “sent liberaldom screaming into the streets“, on Scalia’s supposed “smackdown” of the very vehement disagreement by Justice Stevens for the minority, and painting a broad strokes picture of an Obama administration and liberal minority that is profoundly “out of synch” with the “basic world view” of a majority citizens working in the private economy (in which corporations play the central role) and who are close to “a tipping point over the scale and role of government”..

I agree with most of Henninger’s criticisms about the Obama administration, but otherwise his editorial is shockingly uninsightful, uncritical, uninformed and uninterested on a number of key points, e.g.,

– in understanding the real nature of the dispute within the Supreme regarding important issues of Constitutional interpretation (such as the manner in which the “conservative” majority abandoned any pretence of an “originalist” interpretation of the First Amendment),

– in examining the breath-takingly radical and anti-democratic departure made by the majority from prior decisions – including decisions by the not-so-liberal Rehnquist – in overturning a statutory framework established by the legislated branch of the federal government (and state governments) over a period of centuries,

– in examining the many ramifications of this decision on related inalienable First Amendment rights that corporations have been endowed with via this decision, such as rights that other “persons “- us humans – have to speak anonymously, to not speak truthfully, and to run for office;

– in examining key federalism issues, particularly the role and authority of states in establishing corporations and granting them powers, and how the majority has concluded that the First Amendment now dictates that it is the Supreme Court, and not the states, that determine what rights to speak that these creatures of the states, 

– in understanding how profoundly different corporations are different from humans, as well as from more traditional associations, such as partnerships.

– in examining the way that corporations, by virtue of the profoundly un-libertarian grant of limited liability exended by the states to corporate shareholders leads to a shifting of uncompensated damages and risks to third parties, and has fuelled both the vast expansion of the size, scope and powers of corporations, but also the role and size of the opportunisticfederal government, which has continued to aggrandize power to itself at the expense of the states, in significant part on the basis that citizens were demanding that government step in to check the abuses of corporations (and that corporations preferred a central and more easily manipulable legislator/regulator); and

– in examining the political and ideological battle between left and right to control the media corporations and conglomerates that had held a privileged position inseeking to sway voters at election time.

I post in haste, and so will have to revisit this post to flesh out my remarks, but I hope that the reader will  see that, while professing to offer insights, Hennninger and the WSJ have done us all a disservice.

Without delving too far into the decision here, clearly it undermines further the authority of the states, while handicapping the power of Congress to limit corporate spending intended expressly for the purpose of influencing government policy. This can lead only to further rent-seeking by large corporations seeking advance from government rather than relying on their own prowess in the marketplace, and to increasing corruption in a Congress and administrative government that are already broken and, indeed, profoundly mistrusted by us living, breathing “persons”.

Like the Roberts Supreme Court, the WSJ has show itself to be interested not it principle, but in policy. Sadly, a lack of principle goes a long, long, long way.

[For readers who aren’t aware of them, here are my preceding posts on corporate “free speech”]

Speech and Sociopaths: Does it make sense to collapse, for Constitutional and legal purposes, the distinctions between human beings and corporate "persons"?

February 11th, 2010 No comments

Further to my preceding posts on corporate “free speech”, let me copy here for those interested some parts of a post by legal blogger/law prof Kimberly Hauser, and excerpts of the comment thread (emphasis added).

Says Hauser:

Justice Kennedy stated in the majority opinion: “If the First
Amendment has any force, it prohibits Congress from fining or jailing
citizens, or associations of citizens, for simply engaging in free
speech.”  Hold on, Emily Litella, since when is a corporation an
“association of citizens.”  The last time I checked, they were
state-chartered entities organized for the purpose of operating a
business, making a profit, and sheltering the organizers of the
business from personal liability.  I don’t think anyone would mistake
one for an “associations of citizens.” 
This decision is a travesty on
a number of levels, but as I discussed with my classes today,
corporations are not humansThomas Jefferson stated: “A bill of
rights is what the people are entitled to against
every government on earth, .  .  .”  These rights are human rights,
essential to our type of government.  They should not be cheapened by
their extension to corporations. 
(I do understand that corporations
have been given “rights” over the years by the Supreme Court, starting
with Santa Clara County v. Southern Pacific Railroad Company.  I just don’t agree with that line of decisions.  And while I agree with Stevens’s Dissent in Citizens, I don’t agree with his adherence to the “corporations are people too” position.)

From the comment thread:

… The root of the problem is that corporations are divorced from their
owners, who have been given a grant of limited liability for the risks
they shift to society, a cloak of anonymity by which they can behave
irresponsibility and seek favors from government, as well as unlimited
lives and deep pockets to make persistent efforts to corrupt.


on February 7, 2010 at 4:27 am | Lampie The Clown

… You mentioned the Santa Clara case as the start of
corporate personhood, without mentioning that it was sleight of hand
and not a real ruling on the subject. That’s exactly what the clerk was
counting on, and why it worked. Just thought I’d tell the rest of the
story.

Actually, long before the Santa Clara case, the legal fiction of
corporations as people was established to include five legal rights—the
right to a common treasury or chest (including the right to own
property), the right to a corporate seal (i.e., the right to make and
sign contracts), the right to sue and be sued (to enforce contracts),
the right to hire agents (employees) and the right to make by-laws
(self-governance). They were given the rights they needed to do the
only thing they were designed to do. Conduct business.

They are amoral, profits and self interest as highest priority are
mandated by law to be part of their design, and they have limited
liability. This gives them the “personality” of a sociopath, and makes
them unsuited by design to using free speech responsibly.

With the current design, the only solution I can think of is to have
Asimov’s “three laws of robotics” made part of all corporate charters. ….

 

One commenter defended the Court with a straight face:

A
Corporation IS an “association of citizens”– those citizens are the
shareholders, i.e., owners of said corporation, who associate ever so
often (annual meetings, and other special occasions)
….

And as for objections to “corporate personhood”, as a person is
created by human parents and grows in a mother’s womb, so too is a
corporation. It is created by the (human) people who sign its original
charter, and the “womb” that allows the corporation to be ‘born’ is
that of the [government] agency that grants corporate charters. The difference
between the two different types of “births” are, in my opinion,
negligible.

(Eventually, human embryos won’t have to be implanted into a person
in order to be born– so the “birth from a human” objection will cease
to have merit.)

As for Lampie’s argument that corporations have “the personality of
a ’sociopath’, (which) makes them unsuited by design to using free
speech responsibly”, this argument that discriminates against REAL
sociopaths (who as far as I know, STILL have their free speech rights
unencumbered by the SCOTUS decision or any comments you’d make to the
contrary). Sociopaths have rights, too!

My sense of humor is a bit underdeveloped, so at first I ignored the “sociopath” assertion and penned a straight response regarding the “association” assertion:

Shawn, several points:

while real people do associate to form a corporation, a corporation
remains a legal fiction created by governments, not the people
“associating” with it. It is legally separate and distinct from them and their
ownership right is considered property.

– Since a corporation is peoples’ property, those [people who own it] have
Constitutional rights to make sure their property is not unjustly or
without due process taken by government.

Other forms of property, like human slaves, were not considered
citizens and did not have Constitutional rights, including a right to
speak.
If slaves and inanimate things couldn’t/can’t speak for Constitutional
purposes, neither does it make any sense to argue that corporations – as
opposed to the people in them – can “speak” under the First Amendment.

– Further, it is crystal-clear that the Founding Fathers hated
corporations, and the ability of states to closely restrict them and to
impose conditions on the privileges and rights they received was
uncontested. It is a radical and profoundly non-originalistic step to
conclude, as the Roberts/Scalia court did, that the Founding Fathers
intended [in the Bill of Rights] to provide Constitutional speech rights to corporations.

Then, getting the joke about sociopaths, I couldn’t resist making a didactic point:

Shawn,
presumably your comment is wholly tongue-in-cheek, but let me note that
we hunt down and lock away (and even execute) sociopaths – thus
depriving them not merely of their speech, but of their ability to harm
us and even their existence in some cases.

If corporations are by nature sociopathic, then we by all means ought to do the same.

Note that we don’t need to lock up corporations; we can find various
ways to change their nature, control their bad behavior and limit their
ability to hurt us – the simplest way, of course, would be to simply
eliminate the limited liability of their shareholders, who would then
have every incentive to control what their [not-so-]little Frankensteins do.

Historic Times: A libertarian view on what liberal Larry Lessig has missed regarding our broken, corrupt government

February 10th, 2010 No comments

I won’t reprise the essay referred to in my preceding post, by which Lawrence Lessig presents his view of our current problems (much of which I agree with, including his conclusion that the “conservative” Roberts Supreme Court five-Justice bloc has acted with considerable activism in overturning centuries of law-making, in a manner that cannot be seen as consistent with any “originalist” interpretation of the Constitution, and that fruits and prospects of such activism are likely to frustrate further legislative attempts at fixes).

While I agree with Lessig’s call for a movement for the Several States to convene a Constitutional Convention, let me note that his analysis certainly has some serious short-comings and blind spots. In my view:

(1) Lessig completely
misses the real root of corruption, which is the grant by states to corporation owners of legal entity status in which owners had no liability for acts of the corporation (unless they specifically directed such acts), which grant was initially jealously guarded and carefully
restricted.
The trickle from this hole in the dike became a flood,
as wealthy investors – eager to fund risky businesses that might give
them great profits while shifting risks to unconsenting third parties –
pressured state lawmakers for a snowballing liberalization – which saw the removal of limits on corporate purposes, corporate life, and corporate ability to own other corporations. As I have discussed repeatedly, the result of the multiplication of
activities, power and negative impacts of limited liability corporations (including their
successful pressuring of courts to eliminate common law tort doctrines that once strongly
protected the rights of property owners, in favor of a social utility balancing) has been a corresponding rise
in demands by citizens that law-makers act to constrain corporate activities, which in turn has produced a steadily escalation in the fight over the wheel of government.

(2) As a
result of this oversight, Lessig fails to consider (i) whether the
states can provide any check on corporate influence via their power to
condition the grant of incorporation/foreign corporation status
(short
of a Constitutional Amendment eliminating corporate “personhood” for
civi rights purposes), instead suggesting that Congress might insist
that corporations engaged in interstate commerce be federally
incorporated and limited and (ii) whether states and federal
governments might regulate BETTER by easing the regulation of
partnerships, similar associations and corporation that have unlimited
liability
, and whose owners have direct incentives to make sure
their executives do not engage the business in activities that generate
a significant risk of liaibilty to others

(3)
Lessig ignores that the reason corporations and labor pour money into buying
favor in Washington is because the federal government is too busy
selling favors
, and such investments pay off – particularly where a
single party gains monopoly control over the pork spigots. Lessig seems blind to considerations of federalism and limited
government, in favor of the premise that anything the people in Congress assembled want to do is okay
, as long wealthy corporations aren’t able to spend money on swaying the election of Congresscritters or buying votes, and if retired Congresscritters are not allowed to pasture too close to Congress..

(4)  As a result, Lessig
fails whether rent-seeking can be checked in part by restoring the once vital
check and balance provided by a vibrant role of states under the
originally envisioned federal system
. For the purposes of restoring power to states, various conservatives have recently been suggesting (i) a reinvigoration of the moribund Tenth Amendment,
which states that non-delegated powers are reserved to the states and
the people (the Supreme Court assisted the federal government in
killing this part of the Bill of Rights via expansive interpretations
of the authority of Congress under the general welfare clause, the
Commerce Clause and the 14th Amendment) and (ii) repeal the requirement of direct elections of Senators under the 17th Amendment, which is argued to have better enabled election pandering and influence by corporations and by national parties.

(5) Finally, Lessig misses that the real reason why the conservative block on the
Roberts Court struck down limits on direct corporate spending
on
political campaigns
(speech is wide open; direct donations to campaigns remain limited, but
will eventually fall on the corporations=persons doctrine) is that the Supreme Court had gradually allowed a two-part corporate speech structure to grow, with speech by “media” corporations being unlimited
(“freedom of the press” getting a separate mention in the First
Amendment), but political speech by other corporations being heavily
regulated
by Congress.

This very imbalanced structure was long resented
by the right, due to the perception that the dull, corporate,
conglomerate”MSM” had been “captured” by ideological enemies on the
left. Resentments began to run the other way with the establishment of
FOX and various corporate-funded “thinktank” groups by the right (which seems heavily invested in the idea #CorpSpeak without, apparently, making any examination of the premises that inanimate legal fictions much different from other human associations have rights to speak and influence to government), but the Roberts court felt that the influence of the “liberal” corporate media was still too strong, and decided simply to do its best to bring down the entire edifice of “media speech” versus #CorpSpeak distinctions.
The Roberts Court appears to have been too timid or incurious to
address the fundamental problems relating to speech by inanimate
institutions with far greater power and far less community check than
individuals, and so blinked at that opportunity, instead opting for
the far lesser but still extremely activist step of taking a demolition
ball to legal restrictions on competition in the flow of ideas from corporations
.

For the curious reader, I note again my preceding posts on  corporate “free speech”.

Those who want to get further stirred up might want to give another
listen to the new music video Anthem of what our Founding Fathers said
to King George:  It’s Too Late to Apologize.

Historic Times: Larry Lessig calls for Constitutional Convention to fix our corrupt, broken government

February 10th, 2010 No comments

Lessig doesn’ expressly say it, but we also need to rein in the “self-evident”, “unalienable rights” of all corporations

Actually, the last quip in the title are my words, not Lessig’s.

Last week, I noted Harvard law prof Lawrence Lessig’s earlier rebuttal to Glenn Greenwald regarding the Supreme Court’s decision in Citizens United to overthrow centuries of American law and jurisprudence on the rights of corporations and to enshrine corporations – legal fictions created by states and with powers very severely restricted at the time the Constitution was negotiated and ratified by Americans who had recently rebelled against British company-structured colonies and monopolies – as entitled to “speech” under the Bill of Rights on the same basis as men, and made the following observation:

As an aside, other, non-corporation forms of property that had real human bodies – such as slaves – were clearly NOT afforded Constitutional rights of any sort at the time of the Revolution/Bill of Rights; freed slaves as they became citizens and non-citizen Chinese coolies received Constitutional protection ONLY when the Fourteenth Amendment was expressly adopted to extend “privileges and immunities” to citizens and “due process” and “equal protection” to “persons”.

It was this reference to “persons” that smart/prevaricating lawyers for extremely influential railroad corporations were able to persuade a sympathetic Supreme Court – in unargued dicta by a Justice and recorded in headnotes by a Court’s Reporter who were both former railroad lawyers – to the effect that either (i) the 14th Amendment-adopting states had all intended to mean that it would be the federal government, and not the states creating corporations or giving them permission to do business in-state, who would determine whether domestic or out-of-state corporations received “equal” protection of state laws as did citizens or (ii) that such was the hidden purpose of some railroad-friendly drafters of the Amendment, and that such hidden purpose should govern in interpreting the Amendment.

Is there any surprise that most of the subsequent 14th amendment case law is about how monied corporations vigorously pursued and advanced their interests, while blacks and foreign residents continued to get short shrift (“separate but equal”) from unconcerned federal judges?

Now, the thoughtful and highly regarded  Lawrence Lessig has written a must-read article in The Nation; “How to Get Our Democracy Back; If You Want Change, You Have to Change Congress” (February 3; February 22 print edition).

I won’t reprise the essay here — I have a few comments on what I see as serious shortcomings and blind spots in Lessig’s analysis, but the draft of these grows long (like my aside above) – rent-seeking; corporations; religion; limited liability; Constitution, speech, states, federalism – so I will post them separately.

Lessig’s article is a key starting point and long enough, though I will advise/remind the curious reader of my preceding posts on  corporate “free speech”..

In calling for amendments to the Constitution, Lessig joins others that have come to the same conclusion years ago, such as “whacko”, snivelling local communities/enviro-commie fascists (snark!) seeking to control the impacts of large multinational corporations on local communities and resources, and some state-righters seeking to breathe some meaning back into the Tenth Amendment and the moribound body of federalism. More on this later.

Those who want to get further stirred up might want to give another listen to the new music video Anthem of what our Founding Fathers said to King George:  It’s Too Late to Apologize.

#CorpSpeak: “Jefferson Was Right”; about the dangers of corporations and of the Supreme Court

February 7th, 2010 2 comments

“I hope we shall crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength, and bid defiance to the laws of our country.”

Thomas Jefferson, letter to George Logan, 1816 [note: this may be a spurious quote.]

“Corporations, which should be the carefully restrained creatures of the law and the servants of the people, are fast becoming the people’s masters.”

Grover Cleveland, 1888

As an aid to readers who want a deeper background on the path that brought us to the latest Supreme Court “free speech” decision that further enthrones corporations over individuals, I’d like to start posting various materials that I’ve  run across. The first is the essay below by Michael P. Byron, a Vietnam-era Navy vet who teaches Political Science at CSU San Marcos, as well as at Palomar, Mira Costa, and Mesa Colleges in San Diego.. He is the author of two books on the dynamics of the collapse of societies and was the Democratic Party’s candidate for the 49th Congressional District in 2002 and 2004. I reprint the essay in full, with Mike`s permission (any bolding or brackets are mine).

Jefferson Was Right 05/24/03

Most Americans don’t know it but Thomas Jefferson, along with James Madison worked assiduously to have an 11th Amendment included into our nation’s original Bill of Rights. This proposed Amendment would have prohibited “monopolies in commerce.” The amendment would have made it illegal for corporations to own other corporations, or to give money to politicians, or to otherwise try to influence elections. Corporations would be chartered by the states for the primary purpose of “serving the public good.” Corporations would possess the legal status not of natural persons but rather of “artificial persons.” This means that they would have only those legal attributes which the state saw fit to grant to them. They would NOT; and indeed could NOT possess the same bundle of rights which actual flesh and blood persons enjoy. Under this proposed amendment neither the 14th Amendment of the US Constitution, nor any provision of that document would protect the artificial entities known of as corporations. Jefferson and Madison were so insistent upon this amendment because the American Revolution was in substantial degree a revolt against the domination of colonial economic and political life by the greatest multinational corporation of its age: the British East India Company. After all who do you think owned the tea which Sam Adams and friends dumped overboard in Boston Harbor? Who was responsible for the taxes on commodities and restrictions on trade by the American colonists? It was the British East India Company, of course. In the end the amendment was not adopted because a majority in the first Congress believed that already existing state laws governing corporations were adequate for constraining corporate power. Jefferson worried about the growing influence of corporate power until his dying day in 1826. Even the more conservative founder John Adams came to harbor deep misgivings about unchecked corporate power. [Such an amendment would have applied only to the federal government; Jefferson was unsuccessful with this proposed item largely because many states already had already enacted very restrictive company laws.] A few years after Jefferson’s unsuccessful attempt to incorporate this amendment into the Bill of Rights, the fourth Chief Justice of the US Supreme Court, John Marshall, unilaterally asserted the Court’s right to judicial review in the seminal case of Marbury v. Madison in 1803. In practice this meant that the Supreme Court would have sole and unchecked power to determine what the Constitution meant. Jefferson was aghast. His fear lay in the knowledge that an unelected branch of government, one which is not subject to the will of the citizens, and is effectively immune from check by the two elected branches of government (Only one Supreme Court Justice has ever been impeached—none have ever been convicted and removed) was now solely responsible for determining the meaning of the Constitution. The meaning of the Constitution, and hence the very nature of our political system, was now in the hands of an un-elected and effectively uncontrollable body. “The Constitution has become a thing of wax to be molded as the Court sees fit” Jefferson lamented. In 1886 Jefferson’s twin Constitutional nightmares collided in a train wreck which has effectively derailed true democracy in this nation and indeed across the globe as other nations have either copied our unfortunate example, or have fallen under the dominion of our multinational corporations—or both.. The precipitating event was the case of Santa Clara County v. Southern Pacific Railroad. This case is cited to the present day as having conferred the status of “natural” as opposed to “artificial” personhood upon American corporations. In fact the Supreme Court declined to rule on the issue. J.C. Bancroft Davis, the Clerk of the Court, an attorney, who curiously was also a former railroad company PRESIDENT, used his position to simply write this conclusion into the head notes which summarized the case. Ever since this fateful event; this sleight-of-hand rewriting of the Constitution, corporations have had the status of “actual” persons whose rights are fully protected by the Constitution. It was a coup against democracy which succeeded because there were no real external checks and balances on the Court, and because the Court itself chose not to act to repudiate Davis’ rewriting of the Constitution. The thing stood. Precedent was established. Jefferson’s “thing of wax” nightmare had come to pass.

[Ed: Allow me to explain briefly the device of the perversion wrought by the Supreme Court, which Byron fails to address. Corporations – which are essentially all creatures of the states, and not the federal government – received Constitutional “personhood” status was through the Equal Protection clause of the Fourteenth Amendment, which Amendment profoundly altered the Constitution. The Constitution and Bill of Rights had restricted the federal government’s authority against states and citizens, but did not regulate the relationship between states and their own citizens (and citizens of other states). But the post-Civil War Fourteenth Amendment, with the purpose of protecting freed slaves, directly limited the authority of state governments over their own citizens via the Privileges and Immunities clause (essentially making the Bill of Rights binding on the states as well); in addition, for the purpose of protecting both citizens and noncitizens (such as the many Chinese in California), the Equal Protection clause mandated that all persons be given the equal protection of each state’s laws. It is this clause that the extremely powerful and wealthy railroad companies – creatures of states – managed to turn into a weapon of the federal government against states, by the proposition that corporations, being recognized as artificial “persons” having a legal status independent of their shareholders, should also be treated as “persons” with Constitutional rights under the the Fourteenth Amendment. The subsequent case history of the Equal Protection clauses show a few cases regarding freed slave and minorities, with federal courts permitting states to treat minorities very shabbily, but a vast majority of cases brought by railroads and other corporations, strictly protecting corporations from unequal treatment..]

Consider the implications: Actual flesh and blood persons are indeed all roughly equal in overall attributes. But a corporation can possess MILLIONS of times greater resources than does any “natural” person, or even a group of such persons. Neither labor unions, nor any other category of “special interest” group possesses this attribute of personhood and so they too are fundamentally and intrinsically unable to compete against corporate “persons.” To make a long and sad story short: The concentrated power of corporate persons has overwhelmed our democratic system. The unsound decisions of our unchecked and unbalanced Supreme Court have handed the “keys to the Kingdom” over to our corporate overlords. An analogy with an AIDS infection is instructive: After 1886, our democratic “immune system” resisted Davis’ corporate personhood infection of our national body politic by deploying the Sherman Anti-Trust Act, the Progressive Movement, the Labor Movement, and the New Deal. All of these bought time. But now, in the era of global mega-corporations, after a long struggle, our “democratic immune system” is finally being overwhelmed. Democracy, rule of, by, and for the people, is dying in America. Contemporary America is a nation almost wholly under the dominion of plutocratically wealthy, corporate quarterly-profit über alles overlords. A seamless web of corporate power connects our multinational corporations with our mass media—now almost wholly owned by a handful of mega-corporations. This military-industrial-media complex largely determines which politicians will and will not get elected. Thus they control the government. They control access to money as well as determine how a candidate will be presented to the viewers. The very policies that our “elected” officials are “allowed” to espouse are rigorously circumscribed: Remember Clinton’s national healthcare proposals? Our media will never tell us that every other developed nation on Earth has universal health care for their citizens. Arguably, our corporate media has seen to it that the average American is as brainwashed as is say, the average citizen of North Korea. Our primary role in this atrocious system is simply to consume. We are consumers, corporate subjects, not citizens. Under this materialistic system our lives are devoid of deep meaning as we are conditioned to work ever harder and go ever deeper in debt to accumulate ever more useless junk as though if we just piled up enough of this crap we would somehow, magically, become happy. What is to be done? Let’s open our eyes and admit that the emperor has no clothes. Let’s admit that our democratic, constitutional, system was derailed more than a century ago. Until we return power to the hands of flesh and blood citizens EXCLUSIVELY, until corporations are summarily striped of “personhood”, until this legal obscenity is abolished, we can have no real freedom, democracy cannot flourish. Furthermore, to ensure that the will of the people is respected and reigns supreme, all members of our federal judiciary must face periodic reelection by the citizens—just as is the case for our judiciary here in California. Until and unless these things come to pass we cannot be a free people. Because we are fundamentally NOT a free people, because our ability to act and to build freely upon our inspirations is constrained by corporate forces beyond our present control, we cannot live up to our full potentials as human beings. Once these goals are accomplished there shall be such an explosion of innovation in economic and political and scientific entrepreneurship as to make Periclean Athens seem timid. It’s up to each of us to act NOW. Freedom itself hangs in the balance.

It's "Too Late"?! See/enjoy this GREAT new Anthem of the Revolution. Perhaps, as Jefferson suggests, we need an anthem like this for our time

February 6th, 2010 No comments

There’s a nice little music video out – just released by a speciality history curriiculum publishing firm – with a hsitory lesson that really seems to be hitting a chord with the growing chorus of people who are upset with government (including Glenn Reynolds, Moe Lane and some others – I expect the left to catch on as well).

It’s called “Too Late to Apologize: a Declaration“, and stars Thomas Jefferson as lead vocalist/keyboardist, John Hancock, John Adams, Sam Adams, Benjamin Franklin on guitar and King George.

I love it, and I’s sure you’ll like it too.

Maybe some stirred up watchers can suggest some lyric tweaks to bring this up to date for our latest usurpers? There are plenty of good targets, such as:

  • our runaway federal government and the politicians who pander to us and distract us with wars & shallow, divisive political drama, while spreading pork and legislative & regulatory largess to favored corporations,
  • the powerful corporations (including our corporate “news” conglomerates) that our Founders were determined to oppose – but
    which hijacked the 14th Amendment to trump local/states rights and become “persons” with unalienable rights
    (now even under the Bill of Rights!), and the
    Supreme Court that has arrogated to itself the right to turn the
    Constitution into whatever they say it means, thus aiding both a
    grasping central government and the corporate-tied elites who direct it.

Without further ado, here’s the video! (lyrics below)

[View:http://www.youtube.com/watch?v=uZfRaWAtBVg:650:0]

Lyrics:

Halfway across the globe
And we’re standing on new ground
Screaming ‘cross the waves
You can’t hear a sound
There’s no fair trials, no trade, no liberties
No tea
We’ve colonized America; we won’t stand for tyranny,
Oh king

And it’s too late to apologize
It’s too late
I said it’s too late to apologize
It’s too late

We’ve paid your foolish tax, read the acts
And they just won’t do
We want to make it clear, we believe this much is true
All men were created with certain

Unalienable rights
Among these are life, liberty, and the pursuit
Of happiness

And it’s too late to apologize
It’s too late
I said It’s too late to apologize
It’s too late

It’s too late to apologize
It’s too late
I said it’s too late apologize
It’s too late

I said it’s too late to apologize, yeah
It’s too late
I said it’s too late to apologize, yeah

Halfway across the globe
And we’re standing on new ground

 

#PoliticsInc: More on WHY #CorpSpeak is radical, nonsensical & dangerous judicial activism

February 5th, 2010 No comments

Below is another handy summary of my Constitutional arguments against #CorpSpeak and #politicsInc (Twiter hashtags, for those of you who may be unfamiliar with them), copied from another comment thread at Volokh Conspiracy.

Readers should not forget that it is the state grant of limited liability that – as I have discussed in many posts – lies at the root of our burgeoning fights over government and public distrust (extending even to my quaint pet enviro concerns), Corporations are divorced from their owners, who have been given a grant of limited liability for the risks they shift to society, a cloak of anonymity by which they can behave irresponsibility (with little concerns greater than what provides the largest profits and bonuses) and can seek favors from government, as well as unlimited lives and deep pockets to make persistent efforts to corrupt.

Yes, I may be repeating myself, but core libertarian concerns are at stake. Here are my comments, with a few slight tweaks:

TokyoTom says:

I missed this conversation, while continuing to argue on Jon‘s
initial thread that CU is radical, nonsensical and dangerous judicial
activism: http://volokh.com/2010/01/21/citizens-united/

Let me note a few thoughts:

– the First Amendment was not amended to extend “speech” from humans to nonhumans of any kind;

– as corporations are creatures of the state — with special benefits
extended to shareholders in them that are unavailable otherwise via
contract or common law — the state has every ability to limit the
powers of corporations;

– in the same way, governments routinely condition extensions of
benefits on acceptance of limits on speech; prominent examples include gag rules on churches and other nonprofits, and on
doctors in hospitals that receive federal funding;

– the equation of corporations — which have a legal status distinct
from their owners — with individuals and other forms of voluntary
organizations that retain unlimited liability is invidious, and blurs
the very real distinctions between them. When corporations “speak”, WHO
is talking? (The growth of corporations and the lack of shareholder
liability has led to a continued attenuation of SH control, for the
benefit of managers.)

– if corporations were held to have NO Constitutional speech rights,
the real human beings who work at, manage or own them would retain all
of their Const rights of speech and redress — but at their own direct
expense. All that would be lost would be the ability of some to mask
their identity, to claim that they represent all, and to pay for their
speech by picking the pockets others (a point one wishes Kagan had
better understood and made).