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September 5, 2013


Citizens United didn’t just happen. There were ominous signals before that critical day in 2010. The court began its legislating from the bench in the Buckley v. Valeo decision of 1976 in which they not only gutted several limits on campaign contributions and expenditures set forth in the Federal Election Campaign Act, but also made the astounding finding that money was speech (thus bringing the whole issue into a First Amendment milieu, perhaps the grandest Amendment of all). The Supreme Court could not find another constitutional right that was being violated by the terms of the Act, so they dreamed up a First Amendment violation, unbelievably holding that money is speech.)  Buckley v. Valeo should never have happened, but it did. The court seemed intent on keeping big corporations and big money generally in the political picture not on the basis of settled law, but for their own reasons.

So, all right, money is speech. How did we get from there to here, where corporations are now people and money is their speech? The route strains credibility, because if corporations are people, then (via Aristotelian logic) people are corporations. I don’t ever remember seeing a corporation walking down the street or seeing one at a Rotary Club meeting or at church. To the original intent of the founding of corporations (pooling resources to go into business to make a profit) the court has added speech and personhood. Remarkable – and a strained and stretched construction that may fit the court’s fantasies – but we have to live with such irrational decisions in the real world of financial bombardment of our electoral process by big money and the corporate culture. The court has approved a wholesale buy of our elections by the rich and corporate culture and the result is that our democracy is in tatters. The will of the people and Lincoln’s “of the people, by the people and for the people” are quaint reminders of what democracy used to be, important to you and me, but just another commodity buy at Wall Street.

Let’s see where we came from on the question of corporations and their governance (if any). Way, way back when Mr. Chief Justice Marshall reigned over the court (34 years), he had this to say on the topic:

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 creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created.

For-profit corporations are created to make profit. I have organized several corporations and can never remember a one where the application to the state in its “corporate purposes” section talked of politics, personhood, or in any way referred to the money we received for sale of stock as “speech.” I would have joined my incorporators in questioning the sanity of anyone who came up with such definitions. Little did I know that years later the Supreme Court would furnish such flexible definitions, breaking their own internal rules of review in order to attain a result agreeable to the view of the rich and corporate class in the court’s definitional brush with fantasy.

Mr. Chief Justice Rehnquist, a right wing Republican and no political friend of mine, must nevertheless be given credit where credit is due: He noted that “a mere creation of a corporation does not invest it with all the liberties enjoyed by natural persons.”  Quite to the contrary of the anomalous finding in Citizens United, he argued that limiting the role of corporations play in politics is a desirable goal. He noted in an earlier dissent that “A state grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency AS AN ECONOMIC ENTITY (my emphasis). It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.” (It’s more than reasonable; it’s a cinch!)

Truer words were never spoken, since such properties as fleshed out in Citizens United contain the seeds of the destruction of American democracy. When big money and corporate power overwhelm democracy by buying American elections (or enough of them in critical areas to exercise overall control), then this country already well on the road to complete corporate control will have come under the total  control (and effective ownership) of and by the rich and corporate class, marking the end of our noble experiment in democracy launched back in 1776. Democracy versus money – democracy lost.

Democracy will have fallen to oligarchy and strained concepts of corporations as people and money as speech. The blood of democracy’s defenders will have fallen in vain to fantasy, delusion and overriding greed. There will have been no sadder day in American history than that day (if historians are free to publish such thoughts under the new financial fascist order).

After democracy is destroyed, I am unsure of what our new rulers will institute as their modus operandi for government. 1984 comes to mind, but it could be some variant of economic dictatorship designed to keep the masses quiet and unrevolting until our new rulers can consolidate their political gains, starting, perhaps, with an edict abolishing elections altogether. We can’t know, as Smith in 1984 did not. Having no political rights, we will, as Smith, be relegated to an unquestioned life in service of the new “government.”

I have approached the dark side of Citizens United with the foregoing and may be guilty of using a bit of fantasy myself in predicting possible outcomes if and when the rich and corporate class completely takes over. I have not yet finished with how we got to Citizens United (with the stage set by a Supreme Court justice who was formerly corporate counsel for Big Tobacco, for instance). I am ahead of myself.

Stay tuned for Part III, where I hope to resume the unlikely trek to Citizens United, the worst Supreme Court decision ever, on a par with Dred Scott and Plessy v. Ferguson, but even more dangerous to American democracy.  GERALD  E


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