“The End Game For Democracy”: The Creeping Expansion Of Corporate Civil Rights
Last week, The Wire creator David Simon told Bill Moyers that the legal doctrine that spending money on political campaigns is an act of political speech protected by the First Amendment poses the greatest threat to American democracy. “That to me was the nail in the coffin,” he said. “If the combination of the monetization of our elections and gerrymandering create a bicameral legislature that doesn’t in any way reflect the will of the American people, you’ve reached the end game for democracy.”
He’s right. Not only does money as speech allow those with the fattest wallets to drown out the voices of average citizens, as John Light points out, it also gives wealthy donors an effective veto over policies that enjoy majority support. But it’s important to understand the other ways that the expansion of civil rights for corporations can conflict with the public interest.
As Simon observed, the notion of corporate personhood isn’t inherently problematic. The concept that companies are “artificial persons” is necessary because you can’t enter into a contract with an inanimate object, and you can’t take an inanimate object to court if that contract is breached.
Problems arise when these soulless artificial persons demand constitutional rights that were designed to protect real, flesh-and-blood people.
Those demands have a long history. As author and commentator Thom Hartmann detailed in his book, Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights, the end of the Civil War brought with it the beginning of a battle for corporate rights under the 14th Amendment, which was intended to confer full citizenship on newly freed slaves.
For several decades, efforts to gain 14th Amendment protections for corporations were stymied by the courts. But in the 1880s, with the help of a court clerk Hartmann described as “a dicey character,” a corrupt federal judge named Steven Field — who had his eye on a White House run — managed to get that right codified in the law on behalf of “very wealthy and powerful guys who ran the railroads and who were the richest men in America,” as Hartmann put it in a 2010 interview.
It wasn’t the only right corporations would gain during that period. According to Hartmann, in the first half of the 19th century, corporations were required to make their books open to the public. By mid-century, they were only required to disclose their finances to the Secretary of State of each state in which they were incorporated. But in the early 20th century, they successfully claimed that even those requirements violated their Fourth Amendment protection against searches and seizures without probable cause.
In the 1970s and 1980s, corporate lawyers became more aggressive in pressing for civil rights. David Gans, civil rights director for the Constitutional Accountability Center, told BillMoyers.com, “What we’ve seen in the last four decades is a huge expansion of claims that corporations are entitled to various individual rights that were long seen as the birthright of the Declaration of Independence.”
The biggest shift was in the realm of First Amendment rights. “In the 1970s,” said Gans, “there were lots of cases claiming that corporations had First Amendment rights both in the area of commercial speech — prior to that, the Supreme Court had long held that it could be extensively regulated — and in the area of political speech.
“Those claims brought us eventually to Citizens United,” Gans continued, “and now we’re seeing new claims — in Hobby Lobby, for example, that corporations have a right to religious exercise, which is really a fundamental matter of human dignity and conscience, and it’s a right that corporations have never even claimed. ” Hobby Lobby is one of several corporations suing to overturn Obamacare’s mandate that employer-based insurance cover a basket of preventive care including contraceptives.
Charlie Cray, director of the progressive Center for Corporate Policy and co-author (with Lee Drutman and Ralph Nader) of The People’s Business: Controlling Corporations and Restoring Democracy, said that First Amendment claims on commercial speech have been central in dozens of regulatory fights — from GMO and bovine growth hormone labeling requirements to tobacco point-of-sale advertising to limits on media consolidation.
But so far, corporations have had less success pressing for other constitutional rights. In the 1980s, for example, Dow Chemicals sued the Environmental Protection Agency, claiming that its aerial surveillance of one of the company’s plants constituted a warrantless search and violated the Fourth Amendment. But the court ruled that the EPA was acting within its regulatory authority, and that Dow had no legitimate expectation of privacy.
Nonethelesss, Charlie Cray tells BillMoyers.com that claims of corporate rights can conflict with the public interest even without being litigated. “A lot of this goes on at the regulatory level,” he said. “Corporate lawyers claim that their rights are being violated and regulators with limited budgets will often back off rather then engage in protracted litigation.” Those bizarre pharmaceutical ads with the lengthy list of awful side effects are a good example — the FDA loosened restrictions on direct-to-consumer advertising largely in response to drug companies’ First Amendment claims.
And it’s a slippery slope. “A couple of years ago, the idea that corporations would claim they’re entitled to the free exercise of religion would have seemed outlandish,” said David Gans, “but here it is, dividing the lower federal courts and about to be heard by the Supreme Court. It is hard to predict where they’ll go in the future.”
By: Joshua Holland, Connecting The Dots, Bill Moyers Blog, February 18, 2014
“A License To Discriminate”: Religious Freedom Is A Shield, Not A Sword
When a bad idea pops up in a state legislature, it’s about as common as the sunrise. When the same bad idea pops up in 10 state legislatures at the same time, something odd is going on.
At issue are proposals to make anti-gay discrimination easier for social conservatives under the guise of “religious liberty.” Kansas, for example, recently generated national headlines for a bill that would have given those with “sincerely held religious beliefs” license to discriminate practically everywhere – restaurants could deny gay couples service; hotels could deny gay couples rooms, even public-sector workers could refuse to provide services to LGBT Kansans.
Kansas’ right-to-discriminate bill was derailed, but as Adam Serwer reported yesterday, very similar proposals have drawn attention in Idaho, Nevada, Ohio, Oregon, South Dakota, Tennessee, and Utah. My colleague Laura Conaway found a related measure in Maine.
“Religious freedom is a shield, not a sword,” Nick Worner of the Ohio ACLU said, paraphrasing George H.W. Bush appointed federal Judge Carol Jackson. “It’s not religious freedom when you’re using it to hurt someone else.”
For proponents of civil rights, the good news is that these proposals are faltering in nine states. The bad news is, a bill in Arizona’s Republican-led legislature actually passed yesterday.
The bill, approved by the Republican-controlled Senate on Wednesday and the GOP-led House on Thursday, would bolster a business owner’s right to refuse service to gays and others if the owner believes doing so violates the practice and observance of his or her religion.
The state Senate passed it on a straight party-line vote, 17 to 13. The House followed suit, 33 to 27, with two Republicans joining all the Democrats in opposition.
This is no modest effort to accommodate religiously motivated discrimination.
Democratic opponents of the bill tried to make clear to GOP lawmakers just how significant the right-to-discriminate measure would be.
[O]pponents say it could also protect a corporation that refused to hire anyone who wasn’t Christian and could block members of the lesbian, gay, bisexual and transgender community from access to nearly any business or service.
“The message that’s interpreted is: ‘We want you to work here, but we are not going to go out of our way to protect you, to protect your rights, to protect your family,’ ” said Rep. Ruben Gallego, D-Phoenix. “God forbid should someone come to the Super Bowl and come to a restaurant that is not going to allow them in.”
The bill is awaiting action from Arizona Gov. Jan Brewer (R), who has not yet taken a position on the proposal.
If she signs it into law, a legal challenge would be inevitable. Organized boycotts would also appear likely.
By: Steve Benen, The Maddow Blog, February 21, 2014
“Universal Voting”: The “No Lines” Solution To Long Election Lines
As we wonder whether the sensible bipartisan recommendations of the president’s “Lines Commission” will gain any real traction, WaMo Contributing Editor (and former Oregen Secretary of State) Phil Keisling reminds us once again in a piece at Governing that there’s one election reform available that makes the whole issue moot:
During the 2012 election, an estimated 10 million voters spent at least 30 minutes — and some of them many hours — waiting in line. Amidst contentious partisan accusations about “voter fraud” and “voter suppression,” perhaps we can’t expect more than a catalog of small to mid-sized fixes to build a better polling place.
However, the core problem with America’s election system – or, more accurately, with its 8,000 separately administered election systems – isn’t too-long lines or poorly run polling stations. The real problem is our insistence on polling stations, period, and the small-ball assumption that voting lines can only be shortened — rather than abolished entirely.
The way to abolish them entirely, of course, is to adopt a universal vote-by-mail system like those already utilized by Oregon, Washington, and–beginning this year–Colorado.
Universal ballot delivery fundamentally upends the election-administration universe. In 47 states, governments require registered voters to seek out their ballots, either by going to a polling place (refurbished or not) or by applying for an absentee ballot. Meanwhile, America’s three “voter-centric” states require the government to mail ballots to all registered voters.
By eliminating polling places and the need for so many election-day workers, Oregon taxpayers save millions of dollars each election cycle. Ballot processing and verification procedures — checking all signatures against voter registration records, which also renders moot the whole photo-ID debate — can be more uniformly applied than at the precinct-by-precinct level. Recounts… are based on individual paper ballots, not software code.
Creating such a voter-centric election system also significantly increases voter turnout, especially in elections where the absence of lines is the real problem. In the 2010 mid-term elections, Oregon and Washington ranked first and second in percentage of registered voters casting ballots. (Across all 50 states, the same turnout rates would have meant about 25 million more votes cast.) More dramatic still, party-primary turnout rates of 40 percent or higher in states with universal ballot delivery are double, even quadruple, the rates in most states.
I’d note that California utilizes a limited version of this system, allowing one to register as a “by mail” voter who will automatically receive ballots (and background materials on issues and candidates) by mail that can be cast by mail or in person, so long as the voter keeps voting. The percentage of California ballots cast by mail rose to 65% for primaries and 51% for the general election in 2012.
Voting by mail is obviously more convenient for most voters–particularly those who work on Election Day–but as Keisling points out, it also eliminates much of the chicanery attempted by local election officials with respect to in-person balloting, whether it’s done before or on Election Day.
And there are no lines between your kitchen table and the mailbox.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, February 13, 2014
“Clarence Thomas’ ‘Sadness’ On Race”: How Things Have Changed, The Views Of “My Grandfather’s Other Son”
Supreme Court Justice Clarence Thomas gave a speech in South Florida yesterday, where the jurist, one of only two African Americans to ever serve on the high court, reflected on racial issues.
“My sadness is that we are probably today more race and difference-conscious than I was in the 1960s when I went to school. To my knowledge, I was the first black kid in Savannah, Georgia, to go to a white school. Rarely did the issue of race come up,” Thomas said during a chapel service hosted by the nondenominational Christian university [Palm Beach Atlantic University in West Palm Beach].
“Now, name a day it doesn’t come up. Differences in race, differences in sex, somebody doesn’t look at you right, somebody says something. Everybody is sensitive. If I had been as sensitive as that in the 1960s, I’d still be in Savannah. Every person in this room has endured a slight. Every person. Somebody has said something that has hurt their feelings or did something to them – left them out.
“That’s a part of the deal,” he added.
At a minimum, the Justice’s comments appear to be at odds with his 2007 autobiography, which paint a different picture of Thomas’ youth. Yesterday, Thomas said race was “rarely” an issue growing up in Savannah,” but as Adam Serwer noted, Thomas wrote several years ago that as a kid in Savannah, “No matter how curious you might be about the way white people lived, you didn’t go where you didn’t belong. That was a recipe for jail, or worse.”
Thomas even said he left his seminary in 1968 after feeling “a constant state of controlled anxiety” over being a racial minority.
That said, Thomas’ broader point about Americans being more conscious of racial issues may be true, though it’s not entirely clear why he, or anyone else, would consider this a discouraging development.
Jamelle Bouie’s take rings true.
Let’s say that Americans are more sensitive about race (and gender, and sexuality) than they were in the 1960s. This is a good thing. If blacks in Jim Crow Georgia were willing to answer to “boy” and shrug at “ni**er,” it’s because they risked danger with any other reaction.
But that’s changed. We’ve made progress. And now blacks, as well as other minorities and women, feel entitled to public respect in a way that wasn’t true in the 1960s. In turn, there’s a public recognition that we should be sensitive to the concerns of these groups. This isn’t a setback – it’s progress.
Jon Chait added:
Maybe the reason race came up rarely is that the racial situation in 1960s Georgia was extremely terrible.
For instance, for the first 14 years of Thomas’s life, Georgia had zero African-Americans in its state legislature. Majority-black Terrell had a total of five registered black voters – possibly because African-Americans were so satisfied with their treatment that they didn’t see any reason to vote, or possibly because civil-rights activists in Georgia tended to get assassinated.
So maybe “reluctance to bring up racial issues” is not, in fact, the best measure of a society’s racial health.
By: Steve Benen, The Madow Blog, February 12, 2014
“The GOP Goes MIA”: Where Were the Republicans At The MLK March On Washington Anniversary?
The 50th anniversary march and speeches to commemorate Martin Luther King Jr.’s “I Have a Dream” speech were inspiring in the sheer variety of people present and the breadth of issues discussed. It wasn’t just about blacks seeking justice in a white-dominated country. It was about justice and equality for everyone – black, white, make, female, gay, straight, with or without disabilities. Yes, we have a ways to go in reaching true equality, but the very scene – featuring so many people of different races, ethnicities and age – was a sign of how successful a culture can be, even with the natural tumult that comes form quickly changing demographics.
That’s why it was all the more disappointing – and truly baffling, from a pure political perspective – that there were no Republican speakers.
Both former presidents Bush were invited, and declined, citing health reasons. That makes sense; the elder President Bush has been ailing on and off over the last year, and the younger former president recently had a procedure done on his heart. He sent a lovely and gracious statement to mark the day. Former Florida Governor Jeb Bush declined to take the place of his family members, and we can’t blame him for that. However sincere and well-intentioned he might be, and however apolitical his remarks might have been, it’s a certainty that many reporters and pundits would interpret his presence as some sort of kick-off for the 2016 campaign. That would not only have been terribly unfair, but it would have detracted from the purpose of the day. Jeb Bush was actually displaying his respect for the memory of Martin Luther King by staying away and keeping 2016 talk out of the story.
But why weren’t House Speaker John Boehner or House Majority Leader Eric Cantor there? Both were invited, and both declined, citing scheduling conflicts. But this wasn’t some last-minute party; this was a long-anticipated event. And even if the formal invitation came only weeks ago, both should have made time. So why didn’t they?
It might be tempting for some on the left to presume that neither man cares about civil rights, or that they hate African-Americans, but those ideas are absurd. Cantor in particular has talked about the importance of fixing the Voting Rights Act (as directed by the Supreme Court) in order to save it, and has also talked very poignantly about his trip with Rep. John Lewis to Selma, Alabama, the locale of the iconic freedom march. It’s ridiculous to interpret Boehner and Cantor’s absence as a rejection of King’s legacy or civil rights.
Tragically, the answer may be much simpler and arguably more disturbing. Is it just that Republicans, some of whom are facing Tea party challenges in primaries, are reluctant to even be on the same stage as President Obama? We have seen cases where very conservative lawmakers – sincere conservatives, not people who define conservatism as the refusal to talk to anyone who disagrees with them – are being criticized by malcontents in their districts for even talking to Obama or other leading Democrats, let alone negotiating with them.
This group treats Obama like he’s some sort of brutal, third-world dictator – or maybe just Satan – and punishes anyone who gets near him. It used to be considered an honor to meet the president and be photographed with him, even if you didn’t vote for him. He’s the president, after all. But for the irrationally hateful segment of the population, having a photo with Obama is like being in the background of a picture of mobsters at a restaurant, knowing that photo is in an FBI file somewhere.
The remarkable thing is that the GOP, on paper, at least (having done a comprehensive study of itself earlier this year) seems to understand that the party has to reach out beyond white America if it ever wants to win another national election. Winning a statewide election is also getting harder and harder to do without support from African-Americans, Latinos and other (for the moment) minority groups. True, Boehner and other Republicans have spoken at other events marking the 50th anniversary, but those events just underscore the problem. In commemorating a pivotal moment in American history and civil rights, the GOP perversely chose to make the events separate but equal.
Abe Lincoln was a Republican, and he freed the slaves. The GOP grew out of a coalition of anti-slavery “Conscience Whigs.” It’s time for the leaders of the Republican party to take their party back.
By: Susan Milligan, U. S. News and World Report, August 29, 2013
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