Rights are for Real People
Zuccotti Park portraits by Joseph O. Holmes
Two years ago, the U.S. Supreme Court decided that Americans cannot prevent corporations from spending unlimited money to control elections, politicians, and policy. In Citizens United v. Federal Election Commission, the court ignored the fact that corporations are creations of state law with government-derived advantages and labeled them, in the words of Justice Anthony Kennedy, “voices,” “speakers,” and yes, a “disadvantaged person or class.” In this Wonderland, corporations are people, corporate money is “speech,” and laws restricting corporate political spending violate the First Amendment.
Nearly 80 percent of the public opposes the holding in Citizens United and supports a constitutional amendment to reverse the decision, according to multiple polls. If Americans so clearly oppose the fabrication of “corporate people” who can use the Constitution to strike down the real people’s laws, how did the folly of Citizens United ever happen?
In fact, the case is the result of a well-funded and organized 30-year campaign to establish corporate constitutional rights as a means to trump democratic laws. Indeed, Citizens United is more like a victory parade for this campaign than a stumble or simple mistake of the Court.
The Effect of Citizens United
The Citizens United decision killed the federal Bipartisan Campaign Reform Act (also known as the McCain-Feingold law). The Court reversed a century of law and overruled one of its own decisions from just six years earlier, which had affirmed our right to keep corporations out of politics. In the wake of Citizens United, corporations can spend unlimited money in every federal, state, and local election in the country.
This challenges the very premise of American government. Can a government based on the will of equal, sovereign human beings co-exist with a government based on unregulated corporate spending? Unlikely.
Walmart alone had revenues of $421 billion in 2010. The largest 100 corporations had combined revenues of $13.1 trillion and profits of $605 billion in the 2008 election cycle. According to opensecrets.org, total spending on federal campaigns in 2008 was about $5.3 billion. Diversion of just 2 percent of corporate profits into that election cycle would have represented more than twice the money that was actually spent. That kind of money would utterly dominate elections and policy-making.
And the domination is well under way. In November 2010, the first election after Citizens United, hundreds of millions of dollars flowed into campaigns across the country, with no requirement that the source be disclosed. Politicians who had failed to do corporate bidding, whether on health care, energy, or financial reform, were bombarded with negative ads funded by corporate front groups such as the U.S. Chamber of Commerce, various political action committees, and other anonymously funded organizations—including Citizens United, the lobbying group whose lawsuit led to the Citizens United case. The 2012 election looks to be much worse.
The long campaign to expand the “rights” of corporations—particularly the “free speech” right to spend money on lobbying and campaigns and to veto public interest laws—has had effects we can see all around us: Corporate-friendly trade and tax policies have moved jobs overseas, destroyed our manufacturing capacity, produced vast wage and income inequality, and gutted local economies and communities. Control of our energy policy by global fossil fuel corporations and unregulated corporate lobbying, even for weapons the Pentagon doesn’t want, leads to endless war in the Middle East and uncontrolled military spending. Deregulation has led to sprawl, loss of wilderness and open land, and accelerated environmental crises. The health of Americans is secondary to layers of taxpayer subsidies and preferential treatment for corporate food giants and coal and utility corporations, resulting in epidemic-level rates of obesity, asthma, and type 2 diabetes. As corporations more blatantly buy politicians and legislation, and block or strike down laws that would protect people, Americans, unsurprisingly, become more cynical about politics and government. Government of the people is replaced by government of the corporations.
Where Citizens United Came From
The roots of Citizens United reach back 40 years. By the end of the 1960s, Americans had become increasingly aware that corporations were using our rivers, air, oceans, and land as sewers and dumps, taking the profits and leaving most people and communities with the costs. In April 1970, 20 million Americans of every age and political viewpoint went into the streets and public spaces on the first Earth Day to insist on a better balance between corporations and people, between an extraction economy and nature.
Consider how American democracy responded then. With a Republican president and bipartisan support, Congress enacted:
- The Clean Water Act
- The Federal Water Pollution Control Amendments
- The Clean Air Act Extension
- The Toxic Substances Control Act
- The Safe Drinking Water Act
- The Eastern Wilderness Act
- The Surface Mining Control and Reclamation Act
- The Endangered Species Act
- The Marine Mammal Protection Act
- The Resource Recovery Act
- The first Fuel Economy Standards for cars
The corporatist theology says only “the market” can fix big problems. But the market did not achieve the remarkable transformation following the first Earth Day. We did this by acting as citizens in a republic.
Not everyone celebrated the results. Lewis Powell, a corporate lawyer from Richmond, Va., guided some of the biggest corporations on the planet in launching a counterattack. A former president of the American Bar Association, Powell served on the boards of directors of more than a dozen international corporations, including tobacco giant Philip Morris, Inc. In preparation for strategy discussions within the U.S. Chamber of Commerce and among corporate leaders, on Aug. 23, 1971 Powell prepared what the Chamber would call “The Powell Memo.”
Powell titled his memo “Attack on American Free Enterprise System.” He explained the problem: “No thoughtful person can question that the American economic system is under broad attack.” And he had a solution: Corporate leaders must use an “activist-minded Supreme Court” and other opportunities to shape “social, economic, and political change” to the advantage of corporations. “Strength,” he explained, “lies in organization, in careful long-range planning and implementation, in consistency of action over an indefinite period of years.”
As counsel to the cigarette industry and as a Philip Morris director, Powell already had begun testing the radical idea of corporate “speech” rights under the Constitution. In the late ’60s, Powell sued the United States on behalf of cigarette corporations, arguing that the government’s assertion that cigarettes caused death was “controversial” and “not proved.” Therefore, argued Powell, cigarette corporations had a “free speech” right to “equal time” to say what they wanted about cigarettes. Powell was laughed out of court. Yet, with the execution of the plan he laid out for the Chamber of Commerce, he went on to win far more than he might have expected.
Less than six months after the secret Powell Memo went to the Chamber, President Richard Nixon nominated Powell for the Supreme Court. The Senate voted 89-1 to confirm the nomination.
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Powell might well have faced tougher questions had Americans known of his Chamber of Commerce memo. What did Powell mean by “activist-minded Supreme Court”? What sort of “social, economic, and political change” did he think the Court should foster? No one asked because no one knew; Powell and the Chamber did not disclose the memo.
With Powell on the Court, corporations got to work implementing his plan. Philip Morris and other corporations funded a host of new “legal foundations” in every corner of the country, among them the National Chamber Litigation Center, and the Pacific, Mid-Atlantic, Mid-America, Great Plains, Washington, Northeastern, New England, and Southeastern Legal Foundations.
Corporations and these foundations filed litigation in every forum available. They argued that laws across the country violated corporate “rights”; they equated corporate deregulation with “liberty.” They did not describe corporations for what they are—powerful legal entities created by state laws and given special advantages from the state. Instead, they invented a new language—the one that turned up years later in Citizens United: Corporations were “persons,” “speakers,” “voices,” and “protectors of our freedoms.” The lawyers demanded “the right of corporations to be heard” and “rights of corporations to speak out.” Discrimination against “the corporate character of the speaker” must end!
Building Corporate Rights
This insistent campaign—carried out both in the courts and in the forum of public opinion—sought to redefine the role of corporations in American society. We no longer should view corporations as economic tools, useful but potentially dangerous. We no longer should be concerned that corporations might leverage massive economic power into harmful political power, or trample the public interest for the profit of the few. Instead, we should think of corporations as pillars of liberty, institutions for Americans to trust, protectors of our freedoms against “bad” government.
Who's Working to Reverse Citizens United?
The day the Supreme Court handed down its opinion in Citizens United v. FEC, Free Speech for People and Move to Amend launched their campaigns for a constitutional amendment to overturn the ruling. They’ve gathered thousands of petition signatures and made hundreds of public speeches and media appearances.
Those groups have been joined by many others. Here’s where the action is on reclaiming the Constitution for human beings.
United For the People. This newly formed umbrella organization lists more than 50 groups that have united under the banner of demanding a constitutional amendment to restore the promise of democracy in the United States. In addition to links to all the cooperating organizations, the group’s website provides a list of events, resources, and tools.
Congress. In the two years since the decision, senators and representatives have introduced 18 resolutions calling for amendments to overturn Citizens United.
Cities. From Los Angeles to Duluth, Minn. from Portland, Maine, to Portland, Ore., more than 30 city councils have passed resolutions calling for constitutional amendments. In Boulder, Colo., and Missoula, Mont., the city councils have put ballot measures before residents. For model resolutions to use in your town, go to united4thepeople.org/faq.html.
Courts. The Montana State Supreme Court in December 2011 upheld a 1912 state law banning corporate campaign contributions. Most legal observers expect the case to be reversed by the U.S. Supreme Court.
The first victory for the corporate rights campaign came in 1978, with a corporate attack on Massachusetts’ election laws in a case called First National Bank of Boston v. Bellotti. Gillette Corporation, the Bank of Boston, and Digital Equipment Corporation filed a lawsuit challenging a state law banning corporate political spending in citizen referendum ballots. Conservative leaders of the large corporations wished to go beyond spending their own money to defeat a progressive income tax vote that year; they wanted to use unlimited corporate funds, too.
After losing in the Massachusetts courts, the corporations took their claim all the way to the U.S. Supreme Court. There they found a sympathetic audience led by Justice Powell. Powell cast the deciding vote in the 5–4 decision and wrote the Court’s opinion, despite strong dissenting views from Justice William Rehnquist—one of the Court’s most conservative members—and others. Powell declared that “corporations are persons” and “speakers,” and corporate money is “speech” under the First Amendment. For the first time in 200 years of American history, corporations had launched a successful constitutional attack on laws regulating corporate spending in elections.
The emboldened corporate power campaign next attacked energy and environmental laws. In a 1980 case called Central Hudson Gas & Electric Corporation v. Public Service Corporation of New York, utility corporations and the chorus of corporate legal foundations challenged a New York law prohibiting utility corporations from promoting energy consumption in a time of energy shortage. Despite New York’s policy of energy conservation, the utility corporations won “corporate speech” rights, and the Court struck down New York’s law. Once again, Justice Powell wrote the decision.
The corporate attack on government and the public interest continued year after year. Between 1978 and 1984, Justice Powell wrote four groundbreaking “corporate rights” decisions. A narrow majority of the Supreme Court now accepted the mantra that “corporations are persons” and corporate “voices” must be free. Energy, tobacco, pharmaceutical, and banking corporations all successfully claimed speech rights to invalidate the people’s laws.
The newly minted corporate rights doctrine has even swept away our right to know whether the milk, cheese, and ice cream that we buy comes from cows treated with Monsanto’s genetically modified bovine drugs. Every major democracy in the world has banned recombinant bovine growth hormone. Yet in the United States, despite widespread citizen opposition, the Food & Drug Administration waved Monsanto through. Then, when Vermont had the temerity to enact disclosure requirements so people buying dairy products could know whether their food came from cows treated with Monsanto’s drug, the corporate lawyers sued. Once again, the federal courts said corporations have “speech” rights, this time the right “not to speak.” The court struck down Vermont’s law.
With corporations as “speakers,” and truckloads of corporate cash as beneficial “speech,” Washington and state capitals became corporate playgrounds. Between 1998 and 2010, the Chamber of Commerce alone spent $739 million on lobbying. Pharmaceutical and health care corporations spent more than $2 billion on lobbying in the same period, and military contractors more than $400 million. GE Corporation ($237 million), AT&T ($162 million), and ExxonMobil ($151 million) all joined the lobby-fest. Legislation (and inaction) tilted in favor of big corporations, and the connection between elected representatives and the people was severed.
Citizens United is the finishing touch on the three-decade campaign of organized corporate radicalism inspired by Lewis Powell. If, as the majority of Americans believe, the corporate takeover of our government is not acceptable, the work to take it back must be as relentless, determined, and long-term as the corporate campaign itself.
Recovering the Promise of Earth Day
In April 1970 Americans joined their voices to reclaim the water, air, land, and forests that belong to all of us. We reclaimed government of, for, and by the people. Now, the Supreme Court says that the voices of flesh-and-blood humans are no more important than the “voices” of legal fictions called corporations. If the corporate voices, in the form of millions of dollars, speak louder than the human voices of citizens, then we must have government of the corporations, not of the people. Five justices, though, do not have the last word.
If we believe the Supreme Court has gotten it wrong, we can overrule it by amending the Constitution. That is what Americans have always done when the Supreme Court goes off the rails, and when fundamental questions of our republican democracy need to be addressed once and for all. Racial discrimination is illegal; women can vote; we elect U.S. senators; poll tax barriers to voting are illegal; 18-, 19-, and 20-year-olds have the right to vote; and we have a progressive income tax. All of those resulted from successful constitutional amendment campaigns, many of them to overturn Supreme Court cases to the contrary.
Some of those campaigns—the 18-year-old vote, for instance—were short. Others, such as women’s suffrage, took decades. None of them were easy or for the faint-hearted. constitutional amendments require support from two-thirds of Congress, and ratification by three-fourths of the states. They require a national movement that both builds and reflects a consensus, regardless of political party, about what we must do to be true to the promise of liberty and democracy. After Citizens United, we now have this great challenge, this great opportunity.
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Citizens United, and the response of Americans across the political spectrum to the raw assertion of corporate power, has ignited a national movement. A large, diverse, and effective campaign for a “People’s Rights Amendment,” a 28th Amendment to our Constitution to overturn corporate rights and restore the Bill of Rights for people, is growing rapidly.
Congress is now considering at least 10 different constitutional amendment proposals to reverse Citizens United and renew democracy. Cities as big as Los Angeles and New York and towns as small as those in New England that govern by open town meetings have passed resolutions that condemn Citizens United and call for a constitutional amendment to overturn it. State legislators, state attorneys general, lawyers, and law professors from Montana to Massachusetts, Maine to New Mexico, are challenging Citizens United directly and pushing for the 28th Amendment. More than 1,000 business leaders have joined the movement and more are doing so every day. And everywhere, people are standing up—and occupying—to defend what belongs to all of us and to take responsibility once again to ensure that corporations serve the people, rather than the other way around.
Jeffrey D. Clements, co-founder of Free Speech for People, has served as assistant attorney general and chief of the Public Protection & Advocacy Bureau in the office of the Massachusetts attorney general.
This article was adapted by the author for 9 Strategies to End Corporate Rule, the Spring 2012 issue of YES! Magazine, from his new book Corporations Are Not People, Berrett-Koehler Publishers, Inc., 2012.
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