“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
“He’s No Aberration”: Tom Perkins Is Willing To Say What The Rest Of The Ultrarich Are Secretly Thinking
Tom Perkins incensed the Internet (again), when he suggested Thursday that only taxpayers should get the right to vote and that the wealthiest Americans who pay the most in taxes should get more votes. Yep, you read that right.
The sentiment is especially offensive when you consider the demographics associated with the statement (read: white and male), but it isn’t the most absurd thing he’s said. That would be a letter Perkins wrote to The Wall Street Journal on Jan. 24, in which he compared “the progressive war on the American 1 percent, namely the ‘rich’ ” to the persecution of Jews in Nazi Germany, particularly that the 1 percent face a “rising tide of hatred” akin to Kristallnacht, a series of coordinated attacks against Jews in 1938.
The strangest thing about the letter isn’t that he thought that or even admitted it in a paper of record. What boggles the mind is the outpouring of support he received from like-minded ultrarich Americans and conservatives.
Billionaire investor Sam Zell, appearing on Bloomberg TV recently, denounced what he termed “the politics of envy,” arguing the 1 percent have earned their position in society. “I guess my feeling is that [Perkins] is right: The 1 percent are being pummeled because it’s politically convenient to do so,” he said in an exchange with anchor Betty Liu. “The problem is that the world and this country should not talk about envy of the 1 percent. It should talk about emulating the 1 percent. The 1 percent work harder. The 1 percent are much bigger factors in all forms of our society.”
And The Wall Street Journal, a publication most beloved by the rich, similarly came to his defense. Anyone wondering whether the paper’s editors had printed Perkins’s letter to embarrass or expose him had their answer: They published it because they were sympathetic to the argument. Under the curious headline “Perkinsnacht,” the editorial board published an indictment of “liberals in power,” waxing dramatic about how “liberal vituperation makes our letter writer’s point.” The editors concluded: “The liberals aren’t encouraging violence, but they are promoting personal vilification and the abuse of government power to punish political opponents.”
Support for Perkins’s argument was so widespread that The Washington Post‘s Eugene Robinson wrote a piece questioning what exactly was making “some conservatives take a leave of their senses” in coming to Perkins’s defense. The best response to that question came (as usual) from New York Magazine‘s Jonathan Chait. “Perkins’s letter provided a peek into the fantasy world of the right-wing one percent, in which fantasies of an incipient Hitler-esque terror are just slightly beyond the norm.”
It wasn’t just the wealthy who came to Perkins’s side. One of the most cogent conservative arguments I read came from Michelle Malkin, who argued that it’s dangerous to marginalize a group, any group, even millionaires and billionaires. It was a good point, but it was something else in her piece that caught my attention. She called Perkins a “truth-teller” whose “message in defense of our nation’s achievers will transcend, inspire, embolden and prevail.” No matter, she lamented, “the mob is shooting the messenger anyway.”
That’s just it: Perkins isn’t an aberration, and his message is offensive precisely because it speaks to something a lot of rich people and conservatives actually believe. Perkins hadn’t gaffed. He hadn’t misspoken. Although he would later qualify his remarks, he was making a point that many of the uber-rich believe instinctively. They’re just too prudent to say so.
Perkins’s most recent statement—that people who pay more in taxes should get more votes—hasn’t had time to attract the kind of support his first one garnered, but it has parallels in Erick Erickson’s 53 percent movement. The RedState.org founder’s counterpunch to Occupy Wall Street’s “We are the 99 percent” slogan was meant to represent the 53 percent of Americans who pay federal income taxes. The assumption is that Occupy protesters are among the now famous (thanks, Mitt Romney!) 47 percent of the country who don’t.
The sentiment would resurface again on the presidential campaign trail when Romney said the thing that doomed his candicacy. A refresher: “There are 47 percent of the people who will vote for the president no matter what. All right, there are 47 percent who are with him, who are dependent upon government, who believe they are victims, who believe the government has a responsibility to take care for them, who believe that they are entitled to health care, to food, to housing, to you-name-it.”
Another thing Romney left off but might as well have said? Those who believe they are entitled to vote. Romney and Perkins have good reason to want to keep the 47 percent from voting. Namely, the 47 percent won’t make it a priority to protect the interests of the long-suffering 1 percent. They have more pressing concerns, like, say, groceries.
And that gets to another of Perkins’s fears: that the 1 percent is somehow endangered and at risk of “economic extinction.” To wit: “The fear is wealth tax, higher taxes, higher death taxes—just more taxes until there is no more 1 percent. And that will creep down to the 5 percent and then the 10 percent,” he said. It’s the irrationality of this fear that has garnered the bulk of media attention. But it’s also worth reflecting for a moment on just how poor Perkins’s conception of percentages is. (Pauses for dramatic effect. Moves on.)
There are a few other statistics Romney didn’t mention, such as that two-thirds of households that don’t pay federal income tax do pay payroll taxes. Or that 18 percent of all tax filers paid neither payroll nor income taxes. Of those who paid neither, nearly all of them were elderly or had incomes under $20,000.
Romney thought he was speaking in confidence, but Perkins isn’t worried about that. Perkins, as Malkin so deftly observed, is a truth-teller. He’s saying what the right-wing 1 percent truly believe but are too scared to admit publicly.
By: Lucia Graves, The National Journal, February 14, 2014
“The Real Victims”: Sincerest Sympathy To The Filthy Rich
Dear Tom Perkins:
I’m writing to apologize. I do this on behalf of the 99 percent of us who are not multimillionaires. You, of course, are, having made a pile as a venture capitalist and co-founder of the firm Kleiner Perkins Caufield & Byers.
I admit, I’d have thought a guy like you had little to complain about. But that was before you wrote that tear-jerking Jan. 24 letter to The Wall Street Journal revealing the pain, the oppression, the abject sense of vulnerability and fear that go with having a net worth equal to the GNP of some developing nations.
In your letter, you decried the “rising tide of hatred” you’ve experienced at the hands of progressives waging “war” against your people. Your examples were heart-rending. You mentioned popular anger over rising real-estate prices. And “outraged” public reaction to dedicated buses ferrying tech workers to their San Francisco-area jobs. And the people who have called your ex-wife, novelist Danielle Steel, a “snob.”
Oh, the humanity.
There are, you said, parallels to Nazi Germany and its treatment of another oppressed minority, the Jews. “This is a very dangerous drift in our American thinking,” you warned. “Kristallnacht was unthinkable in 1930; is its descendant ‘progressive’ radicalism unthinkable now?”
You’re right. How could we have missed it? Calling Danielle Steel a snob is exactly like that turning point on the road to Holocaust when anti-Jewish riots broke out across Germany, 7,500 Jewish homes and businesses were vandalized, 30,000 Jewish men were sent to concentration camps, 91 Jews were killed and the Nazis, blaming the Jews themselves for the carnage, fined them about $400 million in 1938 U.S. dollars.
You’ve been criticized for what you wrote, but we both know the only thing wrong with it is, you didn’t go far enough. You didn’t mention how one day the rich may be forced to stitch yellow dollar signs to their clothing or have their net worth tattooed on their forearms.
Being forced to pay taxes for the upkeep of schools your children wouldn’t be caught dead attending? That’s exactly like slavery.
Zoning laws that limit you to one measly helipad on your very own land? No difference between that and the Trail of Tears.
Where will it end? Will they make you fly commercial? Buy off the rack? Golf on a public course? Might as well hitch up the boxcars and pack you in.
I confess to having been blind to the suffering of the Affluent-American community. But you’ve opened my eyes. How awful it must be, forced to live in segregated neighborhoods like Brentwood and Star Island in constant fear of metaphorical beatings and rhetorical lynching if you dare get out of your place and whine about the travails of your life of vulgar excess.
Well, sir, thanks to great Affluent-American leaders like you, I have a dream that one day your children will not be judged by the content of their offshore accounts.
You are as human as anyone else. Your manservant puts your pants on one leg at a time just like the rest of us. So I apologize to you on behalf of the 40-year-old man with a college degree struggling to raise his son on a McSalary, the little girl trying to concentrate on algebra while her stomach growls with missed-meal cramps, the Walmart employees collecting food for co-workers, the homeless family praying the social worker will find them shelter for the night as temperature and snow fall steadily.
You know, until I read your letter, I thought they were the ones most deserving of my empathy and concern, these victims of wealth inequality, a tilted playing field and the sheer greed of rapacious money pigs. But you’ve set me straight, and I want you to know I’m with you all the way.
I mean, now that I know who the real victims are.
By: Leonard Pitts, The National Memo, February 3, 2014
“Paranoia Of The Plutocrats”: A Class Of People Who Are Alarmingly Detached From Reality
Rising inequality has obvious economic costs: stagnant wages despite rising productivity, rising debt that makes us more vulnerable to financial crisis. It also has big social and human costs. There is, for example, strong evidence that high inequality leads to worse health and higher mortality.
But there’s more. Extreme inequality, it turns out, creates a class of people who are alarmingly detached from reality — and simultaneously gives these people great power.
The example many are buzzing about right now is the billionaire investor Tom Perkins, a founding member of the venture capital firm Kleiner Perkins Caufield & Byers. In a letter to the editor of The Wall Street Journal, Mr. Perkins lamented public criticism of the “one percent” — and compared such criticism to Nazi attacks on the Jews, suggesting that we are on the road to another Kristallnacht.
You may say that this is just one crazy guy and wonder why The Journal would publish such a thing. But Mr. Perkins isn’t that much of an outlier. He isn’t even the first finance titan to compare advocates of progressive taxation to Nazis. Back in 2010 Stephen Schwarzman, the chairman and chief executive of the Blackstone Group, declared that proposals to eliminate tax loopholes for hedge fund and private-equity managers were “like when Hitler invaded Poland in 1939.”
And there are a number of other plutocrats who manage to keep Hitler out of their remarks but who nonetheless hold, and loudly express, political and economic views that combine paranoia and megalomania in equal measure.
I know that sounds strong. But look at all the speeches and opinion pieces by Wall Streeters accusing President Obama — who has never done anything more than say the obvious, that some bankers behaved badly — of demonizing and persecuting the rich. And look at how many of those making these accusations also made the ludicrously self-centered claim that their hurt feelings (as opposed to things like household debt and premature fiscal austerity) were the main thing holding the economy back.
Now, just to be clear, the very rich, and those on Wall Street in particular, are in fact doing worse under Mr. Obama than they would have if Mitt Romney had won in 2012. Between the partial rollback of the Bush tax cuts and the tax hike that partly pays for health reform, tax rates on the 1 percent have gone more or less back to pre-Reagan levels. Also, financial reformers have won some surprising victories over the past year, and this is bad news for wheeler-dealers whose wealth comes largely from exploiting weak regulation. So you can make the case that the 1 percent have lost some important policy battles.
But every group finds itself facing criticism, and ends up on the losing side of policy disputes, somewhere along the way; that’s democracy. The question is what happens next. Normal people take it in stride; even if they’re angry and bitter over political setbacks, they don’t cry persecution, compare their critics to Nazis and insist that the world revolves around their hurt feelings. But the rich are different from you and me.
And yes, that’s partly because they have more money, and the power that goes with it. They can and all too often do surround themselves with courtiers who tell them what they want to hear and never, ever, tell them they’re being foolish. They’re accustomed to being treated with deference, not just by the people they hire but by politicians who want their campaign contributions. And so they are shocked to discover that money can’t buy everything, can’t insulate them from all adversity.
I also suspect that today’s Masters of the Universe are insecure about the nature of their success. We’re not talking captains of industry here, men who make stuff. We are, instead, talking about wheeler-dealers, men who push money around and get rich by skimming some off the top as it sloshes by. They may boast that they are job creators, the people who make the economy work, but are they really adding value? Many of us doubt it — and so, I suspect, do some of the wealthy themselves, a form of self-doubt that causes them to lash out even more furiously at their critics.
Anyway, we’ve been here before. It’s impossible to read screeds like those of Mr. Perkins or Mr. Schwarzman without thinking of F.D.R.’s famous 1936 Madison Square Garden speech, in which he spoke of the hatred he faced from the forces of “organized money,” and declared, “I welcome their hatred.”
President Obama has not, unfortunately, done nearly as much as F.D.R. to earn the hatred of the undeserving rich. But he has done more than many progressives give him credit for — and like F.D.R., both he and progressives in general should welcome that hatred, because it’s a sign that they’re doing something right.
By: Paul Krugman, Op-Ed Columnist, The New York Times, January 26, 2014