“The Framers Distrusted The Corporate Form”: Toxic Law; How Corporate Power And ‘Religious Freedom’ Threaten Democracy
Corporations from Apple and Angie’s List to Walmart and Wells Fargo exercised their power last week against laws that give aid and comfort to bigots. But don’t be too quick to praise their actions.
Commendable as these corporate gestures were, they also illustrate how America is morphing from a democratic republic into a state where corporations set the political agenda, thanks to a major mistake by Democrats in Congress. What they did has resulted in Supreme Court decisions that would infuriate the framers of our Constitution.
The framers distrusted the corporate form. And they made plain their concerns about concentrations of economic power and resulting inequality, worrying that this would doom our experiment with self-governance. Surely they would be appalled at the exercise of corporate influence last week. For the companies opposing “religious freedom” laws in Arkansas and Indiana were concerned with human rights only in the context of profit maximization, which is what economic theory says corporations are about.
Where are the corporate actions against police violence? Or unequal enforcement of the tax laws, under which workers get fully taxed and corporations literally profit off the tax laws? Or gender pay discrimination? And when have you heard of corporations objecting to secret settlements in cases adjudicated in the taxpayer-financed courts, especially when those settlements unknowingly put others at risk?
The so-called religious freedom restoration statutes in Arkansas, Indiana and 18 other states reflect a growing misunderstanding of the reasons that American law allows corporations to exist, a misunderstanding that infects a majority on our Supreme Court.
Corporations, which have ancient roots, serve valuable purposes that tend to make all of us better off. We benefit from corporations, but they must be servants, not masters.
Confining corporations to the purposes of limiting liability and creating wealth is central to protecting our liberties, as none other than Adam Smith warned 239 years ago in The Wealth of Nations, the first book to explain market economics and capitalism.
There is no fundamental right to create, own or operate any business entity that is a separate person from its owners and managers. Corporations exist only at the grace of legislators.
But in 21st-century America, corporations are increasingly acquiring the rights of people, which is the product of an unfortunate 1993 law championed by Democrats that now helps bigots assert a Constitutional right to discriminate in the public square.
Concern about corporations and concentrated power that diminishes individual liberties has become increasingly relevant since 2005, when John Glover Roberts Jr. was sworn in as chief justice of the United States.
Roberts and other justices who assert a strong philosophical allegiance to the framers’ views have been expanding corporate power in ways that would shock the consciences of the founders — especially James Madison, the primary author of our Constitution, Thomas Jefferson and John Adams.
In 2010, the Supreme Court ruled that corporations could spend unlimited sums influencing elections in the Citizens United decision. Now, as a practical matter, no one can become a Democratic or Republican nominee for president without the support of corporate America.
And, central to the Arkansas and Indiana legislation, the Supreme Court last year imbued privately held corporations with religious rights in the Hobby Lobby case.
The Roberts court invented all of these rights. Principled conservatives should denounce such decisions as “judicial activism,” yet nary a word of such criticism appears in right-wing columns and opinion magazines.
Today’s corporations have their roots in ancient trusts created to protect widows and orphans who inherited property. Hammurabi’s Code provided for an early version of trusts. Later the Romans created proto-corporations to manage public property and the assets of those appointed to oversee the far realms of the empire.
Managers of these early corporations had very limited authority, what the law calls agency, over the assets entrusted to them. Today, corporate managers have vast powers to buy, sell and deploy the assets they manage. They can do anything that is legal and demonstrates reasonable judgment.
Spending money to elect politicians (or pass anti-consumer laws) is perfectly fine under current law if it advances the profit-making interests of the company. Last week, we saw companies denounce bigotry against LGBTQ people, but of course they did so in terms of protecting their profits.
Walmart, the nation’s largest employer, opposed signing the Arkansas bill into law: “Every day in our stores, we see firsthand the benefits diversity and inclusion have on our associates, customers and communities we serve.” Apple CEO Tim Cook said, “America’s business community recognized a long time ago that discrimination, in all its forms, is bad for business.”
But creating efficient vehicles to create wealth by engaging in business does not require political powers, as none other than Supreme Court Justice William Rehnquist noted in a dissent.
Where we have gone furthest astray under the Roberts court is in last year’s Hobby Lobby decision. It imbued privately held corporations with rights under the First Amendment, which says, in part, “Congress shall create no law respecting the establishment of religion or prohibiting the free exercise thereof.” Based on Hobby Lobby, both the Arkansas and Indiana laws were crafted to provide a defense for bigoted actions by businesses.
Yet laws requiring businesses to serve everyone, without regard to their identity, do not inhibit the free exercise of religion. A law that requires a florist or bakery to serve people in same-sex weddings as well as different-sex weddings may trouble the merchant, but it does not inhibit religious activity.
The corporate power on display in the so-called religious freedom restoration cases stems from a Supreme Court case that upheld the doctrine of laws of general applicability.
In 1990, the Supreme Court held that Oregon jobless benefits were properly denied to two Native Americans who worked at a drug rehab facility and who also, as part of their well-established religious practice, ingested peyote, a controlled substance.
Justice Antonin Scalia, who claims to follow the original intent of the Constitution’s drafters, wrote the opinion. He held that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability’” such as denying jobless benefits to drug users.
Scalia cited an 1879 Supreme Court ruling in a test case known as Reynolds in which a Brigham Young associate asserted that federal laws against polygamy interfered with the “free exercise” of the Mormon brand of Christianity.
In that case, as Scalia noted, the high court had rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself,” the conservative justice wrote.
Two years later, Congress undid that sound decision with passage of the Religious Freedom Restoration Act, a sloppily crafted bill introduced by then-Rep. Chuck Schumer (D- NY), and championed in the Senate by another Democrat, the late Ted Kennedy (D-MA).
It was this law, undoing Scalia’s sound Supreme Court decision, which enabled corporations to exercise their power for a particular cause that is in their interest, namely ending bigotry. Such actions may be laudable, yet still dangerous.
Corporations are valuable and useful vehicles for creating wealth. But they are not and never should be political and religious actors. As artificial “persons,” they should not be imbued with political or religious rights.
We need to keep corporations in their place. Otherwise, next time, their profit maximization may work against your liberties.
By: David Cay Johnston, The National Memo, April 4, 2015
“The Supreme Court’s Extreme Faith”: The Menendez Case Proves The Supreme Court Was Naive About Campaign Finance Laws
No cameras are allowed inside the main Supreme Court chamber, but on Wednesday, a group of activists—for the second time this year—evaded tight security controls and snuck one in to record themselves causing disorder in the court. Their goal: Decry two of the court’s most controversial rulings on campaign finance, Citizens United v. FEC and McCutcheon v. FEC, which have paved the way for powerful donors and corporations to influence elections.
“Justices, is it not your duty to protect our right to self-government?” a protester is heard yelling in a video posted on YouTube. “Reverse McCutcheon. Overturn Citizens United. One person, one vote.” Court police escorted her out, followed by other protesters, including a man chanting, “We who believe in freedom shall not rest.”
Chief Justice John Roberts was not impressed. SCOTUSblog’s Lyle Denniston, one of the few reporters at the scene, noted he grew impatient and later said, “Oh please,” on top of threatening contempt sanctions against the protesters.
Say what you will of the activists’ stunt or the chief’s reaction—because really, no protest in the world will ever overturn a Supreme Court precedent. But consider what Roberts himself proclaimed in McCutcheon, which turned one year old today: “Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner influence over or access to elected officials.”
McCutcheon invalidated something very specific—the limit on the total amount a person can give to all federal candidates during a two-year election cycle—but Roberts didn’t stop there. Time and again he kept singling out blatant quid pro quo arrangements as the only thing Congress could regulate. Not so with meager attempts to “prevent corruption” or curbing “the appearance of mere influence and access.” Those things aren’t as big a deal under the Constitution. Only tit-for-tat corruption is.
Compare that to the other case the protesters targeted, 2010’s Citizens United, a ruling as grand as it was shocking for the dearth of evidence on which it rested: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” The court went on: “The appearance of influence or access … will not cause the electorate to lose faith in our democratic order.”
But it turns out corruption, appearances, and influence-peddling are all at the crux of federal charges against New Jersey Senator Bob Menendez. He was indicted Wednesday on several counts of bribery and other offenses, stemming from an allegedly cozy relationship with Salomon Melgen, a Florida ophthalmologist and longtime friend who is accused of giving lavish gifts to the senator. These included a trip to a luxury hotel in Paris, a stay at an upscale villa in the Dominican Republic, contributions to a legal-defense fund, and more than $1 million in donations to various political action groups supporting Democratic candidates—all in exchange for political favors for Melgen, his business interests, and his numerous girlfriends.
Whether these salacious allegations stick or lead to some kind of plea deal will soon be decided; Menendez pled “not guilty” on all charges Thursday. But a sizeable contribution listed in the indictment calls into question the Supreme Court’s extreme faith that large sums of money not directly given to a candidate fail to amount to corruption.
According to prosecutors, Melgen, through his own company, contributed $600,000 to a political action committee aimed at helping Democrats retain control of the Senate. That’s all well and good under Citizens United,except Melgen allegedly earmarked the money so it went directly to the Menendez re-election campaign. That’s also kosher under campaign regulations, except the indictment alleges Menendez “sought and received” the donation—comprised of two checks for $300,000 each, sent to the super PAC in exchange for Menendez’s assistance in resolving a Medicare-related dispute. Interestingly, the indictment notes that Melgen cut one of the checks on the same day he attended an annual fundraiser Menendez hosted.
The legal process will determine the extent to which the alleged favors and contributions are related. But even if they weren’t and the case went away, the Menendez indictment undermines the Supreme Court’s facile conclusion that merely spending large sums of money—absent a clear showing of quid pro quo—isn’t enough to prove that corruption has taken hold. Or the notion that the mere appearance of influence and access to elected leaders fails to be an interest compelling enough to require strong campaign-finance laws—the kind that governs how big donors and big money behave each election cycle.
Chief Justice Roberts may not be too pleased with the recent protests and security breaches at the Supreme Court, but the Menendez case opens the door for some introspection on how recent campaign-finance rulings are reshaping who calls the shots in our democratic order.
By: Cristian Farias, The New Republic, April 2, 2015
“Indiana Takes On America”: Discrimination Against Gays, Religious Freedom And Rewriting The Constitution
The easy part is over. Americans now understand what the Indiana “Religious Freedom” law was intended to do: legalize discrimination by private businesses against homosexuals. It’s not a secret, as Eric Miller of Advance America said. Indiana acted “to help protect churches, Christian businesses and individuals from those who want to punish them because of their Biblical beliefs! Christian businesses and individuals deserve protection from those who support homosexual marriages. A Christian business should not be punished for refusing to allow a man to use the women’s restroom!”
Anti-gay bias and intent to discriminate are itself reasons to oppose the new law. But there’s much more at stake. The organized Right is re-writing the Constitution and the impact will not be limited to gay Americans.
The supporters of the Indiana law are more diverse, intellectually capable, and more widely found across America than we think. Nineteen states have such laws, and not just the Old Confederacy. Liberal Rhode Island has one. The Indiana Catholic Conference supported the law (It “is very important to secure its passage”). The Indiana legislature considered it carefully, had hearings and received pages of testimony from distinguished legal scholars. (The Bill and the Testimony can be found at: The Bill; The Testimony)
There are elements of their argument that most Americans would support. We widely accept that religious organizations and places of worship should be free to practice what they believe. Should a church have to marry people outside its faith and beliefs? Should a Catholic church be legally required to perform a same-sex marriage? Should an Orthodox shul or a mosque be legally required to hire female rabbis and imams? Probably not.
It makes you think. Most Americans would say that some laws, even good ones, don’t apply inside a place of worship. If that is all the Indiana law did, it would not have stirred up the current commotion.
But Indiana went well beyond that. The law extends the inside-the-church exemption to commercial enterprises. Business corporations get the same protection that a church gets.
If you think you’ve heard this before, you’re right. It’s the same argument used to attack Obamacare in the “Hobby Lobby” lawsuit. That time is was about insurance coverage for contraception, but the argument was the same.
And you also heard a variant in Citizens United, where the Supreme Court conservative majority said corporations have the same constitutional free speech rights as do living, breathing people.
The traditional view was that by engaging in business, you agreed to live by the laws of commerce. If not, then religious belief could justify segregation, or refusal to hire or serve women, or Muslims, or Catholics, or Jews. Or gays. There were, and are, a lot of sincerely religious people who would jump at that opportunity. The Indiana law re-establishes the right to commercially discriminate, especially against gays, if that’s your religious teaching.
The Indiana brouhaha illuminates the broader, and more dangerous legal strategy at the heart of Tea Party, right-wing ideology, the personification of corporations. By enlarging the constitutional rights of powerful, wealthy and largely conservative corporations, the Right is diminishing the constitutional rights of most Americans.
It isn’t the least bit “conservative”. It is a radical, un-American, reactionary re-writing of our basic freedoms. We had struck a constitutional balance between private religious observance and public commercial activity. Real conservatives would be looking for a way to reasonably accommodate both interests.
With any luck, what’s going on in Indiana will provoke a better understanding of what the Right is attempting. In the end, Tea Party skepticism of government intrusion on personal liberty is perfectly reasonable. But in this century, our liberties can be equally threatened by rewriting the Constitution to empower corporations that impinge on our liberty with equal effect.
Practice your religion in peace and dignity. Do business without discrimination and bigotry. Sounds easy.
By: Richard Brodsky, Senior Fellow, Demos; The Blog, The Huffington Post, March 29, 2015
“Should Voting Be A Choice?”: Voter Non-Participation Is A Giant Pimple On The Face Of American Democracy
President Obama gave a rather unusual answer to a question about money in politics during an event in Cleveland this week. His antidote for the burgeoning influence of fat stacks of Supreme Court-sanctioned cash on elections was fairly simple: make everyone vote.
“If everybody voted, then it would completely change the political map in this country,” he said, adding that voting was mandatory in other countries. Universal participation would “counteract money more than anything.”
He might have a point.
Voter participation–or, more accurately, non-participation–is a giant pimple on the face of American democracy, one that the U.S. been unable to pop since the 1960s.
Every two years, an average of 56 percent of eligible voters (PDF) participate in their own self-governance, weighed heavily towards presidential contests. Midterms usually draw around 40 percent, putting 2014’s dismal effort only slightly below average.
Line that up next to other industrialized democracies and it’s not pretty. Great Britain usually gets around three quarters of its population to the polls in national elections.
Greece, the birthplace of democracy and modern geopolitical punchline, gets 86 percent. Australia’s citizens turn out in droves, averaging a 95 percent turnout down under.
How do the Aussies do it? Quite simply, they make their citizens vote–or at least show up.
They are forced to register, forced to appear at a polling station on Election Day, and forced to at least make a mark on the ballot paper. By law, they don’t actually have to choose a candidate or party, but you’d imagine the phrase “might as well” applies here.
Australia, cited by the president in his Wednesday remarks, is not the only country with compulsory voting, and not the only one to see strong turnout. Argentina has it, and usually sees around 85 percent participation. Brazil does too, and usually turns out at a rate around 80 percent. All of these are enforced compulsory systems: that is, there is a penalty (normally a fine) if a citizen cannot reasonably explain why they did not vote.
Now, none of those three are examples of ideal democratic outcomes at present, but at least they have robust participation. The United States faces a formidable participation gap, partly because, quite frankly, not enough people care.
But the U.S. has also been doing all the wrong things, policy-wise, for decades.
Rather than make it easier to vote, lawmakers here have been putting up barriers to participation.
New York and Ohio eliminated same-day voter registration in 1965 and 1977 respectively. According to political scientist Marjorie Random Hershey, turnout dropped by 7 percent in the subsequent elections and between 3 and 5 percent over the longer term (PDF). Many states have imposed early closing dates for registration, and if there were no closing date (in other words, same-day registration), some experts “estimate that…turnout would increase by 6.1 percent” across the nation. Early voting has also been scaled back in a number of states, including Ohio and North Carolina, where 7 in 10 black Americans vote early.
Then there are Voter ID laws, passed to combat the largely mythical phenomenon known as voter fraud.
To start, voter fraud does not exist in any significant sense. Out of the 197 million votes cast in federal elections between 2000 and 2005, only 26 (yes, twenty-six) votes eventually resulted in convictions for voter fraud. That is .00000013 percent, and it indicates that no one committing voter fraud could have affected any federal election in any way during that time.
Yet eight states have strict photo ID requirements to vote, and a further six have strict non-photo ID policies. And these policies can suppress the vote.
Hershey’s study cites Vercellotti and Anderson’s (2006), which found that “non-photo and photo ID rules were associated with lower turnout in 2004, in the range of 3 to 4 percent.” Laws enacted in Kansas and Tennessee dropped turnout by 2 percent between 2008 and 2012, according to the non-partisan Government Accountability Office. Texas’s policies, some of the most restrictive in the nation, were also heavily scrutinized after the 2014 election.
All of these figures are across the demographic board, leaving aside that these policies have been accused of being partisan and discriminatory, disproportionately affecting minorities and the socioeconomically disadvantaged.
Voter ID is just the latest in a long line of counterproductive policies when it comes to the ballot box. The suppression numbers associated are not huge, but there is a pile-on effect.
That’s because the decision to vote is an economic one. There’s an element of civic duty or pride, sure, but the individual essentially conducts a cost–benefit analysis with regard to how they spend their time and money. The more obstacles that are put in the way of voter participation, from restricting early voting to banning voting out-of-district to requiring IDs (which cost time and money to procure), the higher the opportunity cost and the fewer people will vote.
The end result is that the laws and regulations governing voting in some states are thoroughly undemocratic.
Thankfully, though, the U.S. is not some sort of uniformly hopeless electoral dystopia. Some states are making progress. Oregon, along with more recent converts Washington and Colorado (the Civic-Minded Stoner Bloc) has conducted all mail-in voting for years. All enjoyed turnouts of 64 percent turnout or higher in 2012, well above the national average, with Colorado at 71 percent.
This week, Oregon crossed into new territory in its efforts to get out the vote. Under the new policy, all eligible voters will be registered automatically unless they opt out. Now the Oregon secretary of state’s office will mail all voting-age citizens a ballot 20 days before any election. They need only send it back with a few marks of a pen.
Oregon’s is a step in the right direction, emphasizing ease of voting over mandates. Compulsory voting does not hold all the answers–though some political scientists credit it with as much as double-digit gains in turnout percentage–and there are other ways to avoid ghastly-looking turnout numbers. After all, Britain and Greece are doing just fine without it. Belgium, where mandatory voting policies have not been enforced since 2003, averages 90 percent turnout.
Though it would likely bring more people to the polls, it’s not immediately clear how, as the president says, mandatory voting would combat money’s influence on American politics. Maybe he’s hoping that the few people whose lives aren’t consumed by political advertisements in the run-up to Election Day–that is, who don’t own a TV or computer–would show up. Maybe his roots in community organizing tell him there’s strength in numbers, that there’s power to be found in the kind of mass participation by informed citizens that is simply lacking today.
By: Jack Holmes, The Daily Beast, March 20, 2015
“The KB-Party Of Plutocratic Rule”: Welcome To What The Supreme Court Wrought
Shouldn’t America have at least one major party that isn’t beholden to the corporate elite?
Well don’t look now, but such a party has recently popped up, raring to roar into the 2016 presidential race. Called the KB-Party, it has the funding, political network, and expertise needed to bypass the establishment’s control of the election system. But don’t rush to sign up: KB stands for Koch Brothers.
Yes, Charlie and David — the multimillionaire, far-out, right-wing industrial barons who already own several congresscritters, governors, political think tanks, PR outfits, academics, astroturf campaign machines, front groups, etc. — now have the equivalent of their very own private political party. And their party is not beholden to the corporate elite, since it is the elite. The Koch boys have rallied roughly 300 like-minded, super-rich corporate oligarchs to their brotherhood of plutocrats, and this clique is intent on purchasing a president and congressional majority to impose their version of corporate rule over America.
Won’t that be awfully pricey, you ask? Ha — that’s not a question that acquisitive billionaires ever ask. For starters, at a secretive retreat in January for KB-Party funders, the 300 barons ponied up some $900 million for the campaign they are launching. That’s nearly $200 million more than the combined expenditures of the Republican and Democratic parties in last year’s elections, and it’s way more than either of those parties will have for 2016.
This means that in our nation of 350 million people, a cabal of only 300 of America’s wealthiest, self-serving corporatists will wield predominant power over the elections. This tiny club will have the wherewithal to narrow the choice of candidates presented to the rest of us, the range of policy ideas that are proposed to voters, the overall tone of the campaign year, and — most important — the governing agenda of those who get elected.
The KB-Party of Plutocratic Rule is brought to you by the Supreme Court’s disastrous Citizens United edict. After the Court’s 2010 democracy-mugging decree that corporations would henceforth be allowed to dump unlimited amounts of their shareholders’ money into our election campaigns, a guy named Larry sent a hot email to me that perfectly summed up what had just been done to us: “Big money has plucked our eagle!”
The black-robed corporatists’ freakish Citizens United ruling has already let the KB-Party amass their unprecedented electioneering fund, setting them up as the Godfathers of Tea Party Republicanism. Supposedly proud candidates for governor, Congress and even such presidential wannabes as Ted Cruz, Rand Paul, Marco Rubio, and Scott Walker are shamelessly scurrying to the money throne to kiss the Koch ring, do a song and dance, grovel, and pledge fealty to the brotherhood’s extremist plutocratic agenda.
But big money is plucking our eagle not only because it corrupts candidates, but also because it is used to deny crucial information to voters and greatly diminish their participation in what has become a farce. First of all, the biggest chunk of cash spent by the KB-Party will go right into a mindboggling squall of television ads, none of which will explain who they’re for and why. Rather, they will be nauseatingly negative attack ads, brimming with optical trickery and outright lies to trash the candidates they’re against. Worse, voters will not even be informed that the garbage they’re watching is paid for by the Koch cabal, since another little favor the Supreme Court granted to the corporate plutocrats is that they can run secret campaigns, using their front groups as screens to keep voters from knowing what special interests are behind the ads — and why.
We saw the impact of secret, unrestricted corporate money in last year’s midterm elections. It produced a blight of negativity, a failure of the system to address the people’s real needs, an upchuck factor that kept nearly two-thirds of the people from voting, and a rising alienation of the many from the political process and government owned by the few. The Koch machine spent about $400 million to get those results. This time, they’ll spend more than twice that.
To help ban the corporate cash that’s clogging America’s democratic process and killing our people’s right to self-government, go to www.DemocracyIsForPeople.org.
By: Jim Hightower, The National Memo, February 25, 2015
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