‘Looking Beyond The Store Countertop”: Maybe The Supreme Court Isn’t As Pro-Gun As We Thought
Bruce Abramski must have known he was going to get into trouble when he bought a Glock 19 for his uncle. A retired police officer, Abramski was familiar with gun regulation. Yet he accepted $400 from his uncle, went to a local gun store, and—as required to purchase the Glock—filled out federal Form 4473. Question 11.a of that form required Abramski to confirm that he was “the actual transferee/buyer of the firearm(s)?” Question 11.a includes, in stark bold lettering “You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you.” Nonetheless, Abramski signed the form, knowingly lying about his intentions in purchasing the gun for his uncle.
When he was finally caught, Abramski answered with the audacity increasingly typical among a certain class of gun owners: He insisted the law itself was illegal. His lying, he claimed, was perfectly lawful. Surprisingly, he almost convinced the Supreme Court to let him off. Instead, a narrow majority of the Court declined Abramski’s invitation to gut one of the nation’s most important laws designed to reduce easy access to guns by felons and the mentally ill. The ruling is a relief to law enforcement—and a setback for the National Rifle Association.
Law enforcement will be happy because the majority’s decision affirmed the continued viability of the federal prohibitions on gun trafficking. Nearly half of all trafficking investigations by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the main federal agency overseeing gun sales, involve what Abramski did. It’s called “straw purchasing,” and it occurs when one person buys a gun for another person. People who can’t pass a background check, say, because of a prior felony conviction, persuade someone else to go to a gun store for them. It could be a girlfriend, a young recruit into the gang, or just someone looking to make a quick buck. Studies show that criminals often use straw purchasers to obtain firearms.
Abramski wasn’t planning to give his gun to a criminal. It was for his uncle, who wasn’t prohibited himself from purchasing firearms. In the lower courts, Abramski emphasized this argument. Because the uncle could have bought the Glock 19, Abramski’s misrepresentation on Form 4473 was not, as the law required, “material to the lawfulness of the sale.” This argument had a certain logic to it, even if it wasn’t especially persuasive in the end. The lie was still material because the gun store, which needs to verify the background of the buyer, would not have been allowed to sell the gun to Abramski had he told the truth. At the Supreme Court, however, Abramski decided to go further: He said he could lie regardless of his uncle’s eligibility. As is so often the case in today’s gun debate, a reasonable argument is pushed aside in favor of a more extreme and dangerous one.
Abramski’s extreme claim was that straw purchasing was not illegal at all. The law, he argued, only required the gun store to check his own background because he was the purchaser. It didn’t matter what he did with the gun later or whether he was already intending to sell it to his uncle, his aunt, or some dude he met at a gun show. As Justice Scalia, who agreed with this argument, wrote in dissent on behalf of Justices Alito, Thomas, and Chief Justice Roberts: “If I give my son $10 and tell him to pick up milk and eggs at the store, no English speaker would say that the store sells the milk and eggs to me.”
Writing for a majority that included Justices Kennedy, Ginsburg, Breyer, and Sotomayor, Justice Kagan declined to buy what Scalia and Abramski were selling. In holding that federal law intends to look beyond the store countertop (Abramski and the gun dealer) to see who the actual purchaser is (the uncle), Kagan was clearly worried about the AFT’s continued ability to prosecute gun trafficking. The “overarching reason” to reject Abramski’s circumscribed interpretation is that it “would undermine—indeed, for all important purposes, would virtually repeal—the gun law’s core provisions.”
Repealing gun control is exactly what the NRA, which filed a brief in support of Abramski, was hoping for. Although famous for saying we need to enforce existing gun laws, here at least the NRA was trying to make it harder to enforce federal law. Perhaps this is an example of what’s been called the NRA’s gun control “Catch-22”: make gun laws impossible to enforce, then point to the laws’ ineffectiveness as a reason to get rid of them. Had the NRA’s position won in the Court, tomorrow they’d be saying the background check law doesn’t work because it doesn’t stop straw purchasing.
Whatever the NRA’s motive, the nation’s leading gun rights organization will be disheartened by today’s ruling. It’s bad enough, from the NRA’s perspective, that the Court strengthened the hand of ATF—long the target of the NRA’s hostility. Worse, the Abramski case saw Justice Kennedy siding with the liberal wing of the Court to uphold a gun control law. Ever since the Supreme Court breathed new life into the Second Amendment in the 2008 case of District of Columbia v. Heller, another narrow, 5–4 decision, the NRA has been counting on Justice Kennedy to side with it in the NRA’s challenges to gun control.
Based on that expectation, the NRA has been pursuing lawsuits around the nation challenging a variety of gun control laws. The most significant of these are laws restricting who can carry guns in public. Just this term, the NRA and other gun rights advocates petitioned the Court to rule on that issue in several different cases. Although the Court has so far declined to hear any of those cases—and today’s case was not framed as a Second Amendment case—today’s ruling shows that Justice Kennedy is willing to support gun control. For people on either side of the gun debate, that may be the most important signal to come from the Court’s ruling.
By: Adam Winkler, Professor of Constitutional Law at The UCLA School of Law; The New Republic, June 6, 2014
“In The Name Of Free Speech”: The Supreme Court Has Given Us A Government Of, By, And For The 1 Percent
In case after case, the five conservative justices on the Supreme Court have held unconstitutional all efforts—state as well as federal—to restrain the corrosive influence of limitless individual and corporate expenditures and contributions in our electoral process. They do this in the name of free speech.
In their view, the First Amendment absolutely guarantees the wealthiest Americans the right to spend as much as they like to manipulate the American political system to their advantage. According to these justices, as long as the wealthiest Americans do not directly bribe politicians to vote in their favor, the Constitution demands the flow of money is beyond regulation and that the rest of us must simply let the chips fall where they may.
This conception of the First Amendment and of the American constitutional system is truly perverse. By defining “corruption” so narrowly, these justices have missed the central point of self-governance—our elected representatives are supposed to be responsive to the will of the majority.
I don’t mean to suggest, of course, that our elected officials are supposed to slavishly obey the will of the majority. Sometimes, the majority is wrong, and it is the responsibility of our elected officials—and our judges—to reject certain policies even if they are supported by the majority.
What our elected representatives are absolutely not supposed to do, however, is to reject the values and preferences of the majority of our citizens in order to curry favor with a small cohort of extremely wealthy individuals who are eager to leverage their wealth to gain control of our government. And this is so even if their money corrupts the system in ways that are more subtle than overt bribes. The vast majority of Americans understand this point clearly. Our five conservative justices do not.
Of course, this would not matter very much if the wealthiest Americans shared the values and preferences of the majority of American citizens. If their values and preferences were aligned with those of most other citizens, then this would not be much of a problem. In fact, though, there is no such alignment. On a broad range of issues, there is in fact a sharp divergence between the views of the wealthiest 1 percent of Americans and the other 99 percent.
Recent surveys reveal, for example, that 78 percent of Americans believe that government should guarantee a minimum wage high enough to keep a worker’s family above the poverty level, but only 40 percent of the wealthiest Americans agree; 87 percent of Americans believe that government should spend whatever is necessary to ensure that our children can attend good public schools, but only 35 percent of the wealthiest Americans agree; 81 percent of Americans believe that a top priority of government should be to protect the jobs of American workers, but only 29 percent of the wealthiest Americans agree; 68 percent of Americans believe that government should take steps to ensure that every American who wants to work has the opportunity to do so, but only 19 percent of very wealthiest Americans agree; 78 percent of Americans believe that our government should ensure that students who cannot afford to go to college can nonetheless manage to do so, but only 28 percent of the wealthiest Americans agree.
Still, none of this would matter if the wealthiest 1 percent of Americans had only 1 percent of the influence in the political process. It is natural, after all, that people disagree about these sorts of issues, it is natural that rich people might hold different views on certain issues than people who are not rich, and it is quite proper for these issues to be worked out through the political process.
What is distressing, however, is that our political system does not work that way. Because of the extraordinary power of money in the electoral process, and thanks to the decisions of our five conservative justices, the very wealthiest Americans have a wildly disproportionate influence on our political process.
According to a recent Russell Sage Foundation study, almost 70 percent of wealthy Americans contribute regularly to political candidates, roughly half are in regular contact with members of Congress, and more than a fifth affirmatively “bundle” their contributions with other wealthy individuals. In the 2012 election cycle, a total of 99 Americans (mostly billionaires) provided 60 percent of all the individual Super PAC money spent by candidates.
Of course, none of this would matter if money did not affect outcomes. But it does. In 2012, 84 percent of the House candidates and 67 percent of the Senate candidates who spent more money than their opponents won their elections. Although money cannot dictate the outcome of elections, it matters, and it matters a lot—which is why candidates spend inordinate amounts of time scrambling to raise it and why the wealthiest Americans spend it so “generously” to elect their favored candidates.
But even this might not matter if our elected representatives disregarded the source of their campaign funds and, once elected, sought to represent the interests of their constituents—rather than the interests of their largest donors. Unfortunately, recent research (PDF) by the political scientists Martin Gilens of Princeton University and Benjamin I. Page of Northwestern University shows that it doesn’t work that way.
To the contrary, what they found is that, although average Americans tend to get the policies they want when those policies correspond with the interests of the wealthiest Americans, when their views diverge from those of the wealthiest Americans, they usually lose and the preferences of the wealthiest Americans carry the day. Most of the time, in other words, the 1 percent gets its way. Indeed, as Gilens and Page observe, when the preferences of the average American conflict with the preferences of the top 1 percent, “the preferences of the average American appear to have only a miniscule, near—zero,… impact upon public policy.”
In rather sobering terms, Gilens and Page conclude that, although Americans “enjoy many features central to democratic governance, such as regular election, freedom of speech and association, and a widespread [opportunity to vote], we believe that if policymaking is dominated by powerful business organizations and a small number of affluent Americans, then America’s claims to being a democratic society are seriously threatened.”
And this, say our five conservative justices, is demanded by “freedom of speech.” This is so, they insist, despite the fact that the First Amendment was designed, first and foremost, to preserve, protect, and support an effective system of democratic governance.
As James Madison wrote in Federalist 52, the whole point of our system of governance is to make our elected officials dependent on the will of “the people”—not on the will of the “top one percent.” What we are witnessing is a severe and unprincipled corruption of the American political system, and it is mortifying that this corruption is being carried out not by self-interested politicians, but by the justices of the Supreme Court—in the name of the First Amendment. Can the irony really be lost on them?
By: Geoffrey R. Stone, The Daily Beast, June 3, 2014
“NRA’s Constitutional Fraud”: The Truth Behind The “Right To Bear Arms”
In the wake of the horrific Isla Vista, California, mass killing, Americans have once again engaged the debate over gun proliferation. Victims’ families issue primal cries for regulation of these deadly weapons and gun activists respond by waving the Constitution and declaring their “fundamental right” to bear arms is sacrosanct. Indeed, such right-wing luminaries as Joe the plumber, who not long ago shared the stage with the Republican nominees for president and vice president, said explicitly:
“Your dead kids don’t trump my constitutional rights.”
Iowa Republican Senate candidate Jodi Ernst, known for her violent campaign ads in which she is seen shooting guns and promising to “unload” on Obamacare, had this to say when asked about Isla Vista:
“This unfortunate accident happened after the ad, but it does highlight that I want to get rid of, repeal, and replace [opponent] Bruce Braley’s Obamacare. And it also shows that I am a strong supporter of the Second Amendment. That is a fundamental right.”
This argument is set forth by gun proliferation advocates as if it has been understood this way from the beginning of the republic. Indeed, “fundamental right to bear arms” is often spat at gun regulation advocates as if they have heard it from the mouths of John Adams and Thomas Jefferson themselves. But what none of them seem to acknowledge (or, more likely, know) is that this particular legal interpretation of the Second Amendment was validated by the Supreme Court all the way back in … 2008. That’s right. It was only six years ago that the Supreme Court ruled (in a 5-4 decision with the conservatives in the majority, naturally) that there was a “right to bear arms” as these people insist has been true for over two centuries. And even then it isn’t nearly as expansive as these folks like to pretend.
For instance, that gun-grabbing hippie Justice Antonin Scalia went out of his way in that decision to say that beyond the holding of handguns in the home for self-defense, regulations of firearms remained the purview of the state and so too was conduct. He wrote that regulating the use of concealed weapons or barring the use of weapons in certain places or restricting commercial use are permitted. That’s Antonin Scalia, well known to be at the far-right end of the legal spectrum on this issue. Most judges had always had a much more limited interpretation of the amendment.
Justice John Paul Stephens discussed his long experience with Second Amendment jurisprudence in his book “Six Amendments: How and Why We Should Change the Constitution,” and notes that when he came on the Supreme Court there was literally no debate among the justices, conservative or liberal, over the idea that the Second Amendment constituted a “fundamental right” to bear arms. Precedents going all the way back to the beginning of the republic had held that the state had an interest in regulating weapons and never once in all its years had declared a “fundamental right” in this regard.
So, what happened? Well, the NRA happened. Or more specifically, a change in leadership in the NRA happened. After all, the NRA had long been a benign sportsman’s organization devoted to hunting and gun safety. It wasn’t until 1977, that a group of radicals led by activists from the Second Amendment Foundation and the Citizens Committee for the Right to Keep and Bear Arms took control and changed the direction of the group to one dedicated to making the Second Amendment into a “fundamental right.”
What had been a fringe ideology was then systematically mainstreamed by the NRA, a program that prompted the retired arch conservative Chief Justice Warren Burger to say that the Second Amendment:
“Has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime”
The results are clear to see. Mass shootings are just the tip of the iceberg. Today we have people brandishing guns in public, daring people to try to stop them in the wake of new laws legalizing open carry law even in churches, bars and schools. People “bearing arms” show up at political events, silently intimidating their opponents, making it a physical risk to express one’s opinion in public. They are shooting people with impunity under loose “stand your ground” and “castle doctrine” legal theories, which essentially allow gun owners to kill people solely on the ground that they “felt threatened.” Gun accidents are epidemic. And this, the gun proliferation activists insist, is “liberty.”
Michael Waldman of the Brennan Center for Justice (at NYU School of Law) has thoroughly documented all this history in his book, “The Second Amendment: A Biography,” a bit of which was excerpted in Politico magazine. He recommends that progressives who care about this issue think long and hard about how the right was able to turn this around, making a specific case for taking constitutional arguments seriously and using their “totemic” stature to advance the cause. He suggests that they adopt a similarly systematic approach, keeping this foremost in mind:
Molding public opinion is the most important factor. Abraham Lincoln, debating slavery, said in 1858, “Public sentiment is everything. With public sentiment, nothing can fail; without it, nothing can succeed. Consequently he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.” The triumph of gun rights reminds us today: If you want to win in the court of law, first win in the court of public opinion.
In his book, Justice John Paul Stevens suggest a modest tweak to the Second Amendment to finally make clear what the founders obviously intended:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”
Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands. Those emotional arguments would be nullified by the adoption of my proposed amendment. The amendment certainly would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument.
This is important. As Waldman notes, where the NRA Headquarters once featured words about safety on the facade of its building, it is now festooned with the words of the Second amendment. Well, some of them anyway:
Visitors might not notice that the text is incomplete. It reads: “.. the right of the people to keep and bear arms, shall not be infringed.”
The first half—the part about the well regulated militia—has been edited out.
If they truly believed the 2nd Amendment was absolute and totally clear, you’d think they’d show all the language, wouldn’t you? One can only conclude that they are trying to hide something: its real meaning.
By: Heather Digby Parton, Contributing Writer, Salon, June 2, 2014
“Decimating Every Legal Justification For Reform”: Can Reformers Save Our Election System From The Supreme Court?
Over the past few years, given the bad news that just keeps coming their way, America’s campaign-finance reformers have started to look like eternal optimists. They’ve pretty much had to be.
Take the one-two wallop they suffered early this spring. First, Governor Andrew Cuomo and New York state legislators killed reformers’ best chance of a breakthrough in 2014—a public-financing program in which small-dollar donations would be matched or multiplied by public funds. (New York City already runs its own “matching” program.) The idea was to give less-wealthy donors a bigger voice in legislative and gubernatorial races while decreasing the clout of those with deep pockets. Instead, reformers ended up with a microscopic pilot program for the state comptroller’s race. A few days later came much worse news: In McCutcheon v. FEC, the Supreme Court threw out the limit that Congress had put on the total amount wealthy donors can give to campaigns and political parties. While there are still caps on how much donors can give to a specific candidate, now anyone can give to as many campaigns as he or she pleases.
As they reeled from their latest setbacks, clean-election advocates tried to find a reason to be hopeful. Ian Vandewalker, counsel for the Democracy Program at the Brennan Center for Justice, which advocated for the New York proposal, told me that in the wake of McCutcheon, “public financing is the most promising thing that’s left.” But McCutcheon illustrated just what makes the Roberts Court so pernicious when it comes to money and elections; slowly but steadily, decision by decision, the justices are decimating every legal justification for reform.
Underpinning the Court’s infamous 2010 Citizens United ruling was the belief that giving less-wealthy donors more of a voice in elections is not a good enough reason for Congress to regulate political money. A year later, in Arizona Free Enterprise Club v. Bennett, the Court struck down a public-financing program that tried to decrease the power of wealthy “self-funded” candidates.
The Arizona law offered grants to those who agreed to spend only $500 of their own money on their campaigns and agreed to debate their opponents. The funding increased as opponents and independent groups spent more; the idea was to prevent less-affluent candidates from being disadvantaged. The Arizona decision threw similar state programs into legal limbo. The Court decided the program was unfair to candidates who chose not to participate; in other words, candidates with more money to spend have a constitutional right to overwhelm their competition.
“Some people might call that chutzpah,” Justice Elena Kagan wrote in her dissent.
Even so, the Arizona decision left room for reformers to argue for a different kind of public financing system in the interest of quelling political corruption. McCutcheon put an end to that. The Court ruled that Congress and the states cannot justify limits on campaign donations because of concerns about corruption. In other words, if there isn’t a guy with a suitcase full of cash trading it for a lawmaker’s vote, it’s none of lawmakers’ concern.
The blow from McCutcheon has dire implications for American democracy. But it should not mark the end of the reform movement. While continuing to pursue reforms that haven’t yet been quashed, activists and legal scholars now must step back and cook up new laws, and new justifications for those laws, that could pass muster with the Court. Harvard law professor Lawrence Lessig has been on a mission to fight originalism with originalism. The conservative justices base their decisions on a reading of the Founding Fathers’ original intent in writing the Constitution, so Lessig has been combing through the records of the framers, citing every use of the term “corruption” and showing how the Founders used the term to mean much more than “quid pro quo” bribery. Lessig writes that “corruption” encompassed “improper dependence” on the powerful as well. Trying to persuade the justices to change their minds may be an uphill struggle, but Lessig’s work may prove useful when new campaign-finance laws are defended in court.
Reformers’ fondest hope now lies with disclosure laws—a form of regulation the Supreme Court majority endorsed in Citizens United. Laws to make tax-exempt “social welfare” groups, which spend billions on elections, disclose their donors are percolating in the states. And in a demonstration of how un-killable the idea of reforming elections can be, some activists have come up with a new twist: If some groups are allowed to keep their donors’ names secret, why shouldn’t their political ads be required to say so? The idea is that when voters hear the words “This advertisement is sponsored by a group that does not disclose its donors,” it would make shadowy political groups look, well, shadowy.
By: Abby Rapoport, The American Prospect, May 21, 2014
“Unaccountable Power”: Thanks To The Roberts Court, Corporations Have More Constitutional Rights Than Actual People
The big media talk a lot about stalemate in Congress, but they are missing the real story. While representative democracy is dysfunctional, the Supreme Court has taken over with its own reactionary power grab. In case after case, the court’s right-wing majority is making its own law—expanding the power of corporations and the very wealthy, while making it harder for ordinary citizens to fight back.
Worst of all, the Roberts Court is trying to permanently inhibit the federal government’s ability to help people cope with the country’s vast social and economic disorders.
This is not a theoretical complaint. Led by Chief Justice John Roberts, the conservative Republican Court is building a barbed wire fence around the federal government—creating constitutional obstacles to progressive legislation in ways that resemble the Supreme Court’s notorious Lochner decision of 1905. That case held that property rights prevail over people and the common good.
For more than thirty years, the conservative Justices used that twisted precedent to invalidate more than 200 state and federal laws on major social and economic concerns like child labor, the minimum wage, bank regulation and union organizing. New Deal reformers were stymied by Lochner at first, and they only managed to overturn it in 1937 and only then when FDR mobilized a take-no-prisoners campaign to reform the Supreme Court by weakening its unaccountable power.
The Roberts Court has so far produced a slew of precedent-smashing decisions designed to hobble left-liberal reform movements before they can gain political traction. Citizens United opened the floodgates for corporate money; McCutcheon scrapped the dollar limits on fat-cat donors. Roberts gutted the Voting Rights Act of 1965, implicitly endorsing the GOP’s crude campaign to block racial minorities from voting. The US Chamber of Commerce and Business Roundtable have won numerous victories, large and small, expanding the rights of their corporate sponsors.
“We are in an era of very aggressive corporate litigation to expand the constitutional prerogatives of business,” Kent Greenfield, Boston College law professor, explained. “We are on the verge of going back to the Lochner era where every new regulation will be subject to numerous constitutional attacks—any regulation of content in commercial speech attacked on First Amendment grounds, anti-discrimination law or healthcare legislation attacked on religious grounds. You’ll see financial legislation challenged on due-process grounds.”
Despite his genteel manner, Justice Roberts is a “smart strategist” who plants provocative phrases in his decisions that he can cite later as false precedents, according to Law Professor Gregory Magarian of Washington University in St. Louis. “Roberts tells a story that sounds like they are not making radical change,” Magarain said. “But they are still making things up, still making up social policy. And the judgments are still pointed toward the past.”
Anxious Democrats applauded Roberts when he upheld the constitutionality of Obamacare, but many realized after-the-fact that Roberts rejected the Commerce Clause of the Constitution as the standard basis for justifying federal interventions on social and economic problems. This means the Supreme Court now has a five-vote majority in favor of shrinking federal authority. In effect, the Roberts Court was mimicking the narrow logic of the Lochner court 100 year before. The words and reasoning are there, just waiting for the right case to apply them.
Magarian sees a reactionary perspective motivating Roberts and his brethren. The Justices are trying to thwart a future of renewed activism and social rebellion, Magarian suspects, because they were rattled by political unrest they saw in their youth.
“The Court believes that corporate power is virtuous,” Magarian explained. “They are empowering corporations to help maintain a kind of political stability. The First Amendment in the view of the Roberts Court is not about people at the political margins. I think the Roberts Court wants to empower large, stable, wealthy and powerful institutions like the corporation so as to help maintain political and social order. These guys don’t want any social upheaval. They are like interesting echoes of the sixties.”
In the absence of aggressive political resistance, there is nothing to prevent this right-wing power grab from succeeding. But corporations are vulnerable in numerous ways that timid Democrats have not exploited. To stop the Roberts Court, the other side must get serious and begin to attack corporate power and air grievances that the public fully shares.
The corporation, after all, is not a “person” who possesses “inalienable rights.” The corporation is a legal artifice created by the government and given special protections and privileges. When the Supreme Court treats corporations as though they are living, breathing creatures who have constitutional rights just like human beings, they are embracing the fundamental contradiction in the nature of the corporation. Sometimes, they want to be people. Other times, they want to be treated better than people—that is, legally shielded from the consequences of their actions.
Companies and their owners want to have it both ways. The Roberts Court is helping them do so. The Hobby Lobby case now before the Supreme Court illustrates this contradiction. On one hand, the company’s conservative owners claim their religious rights under the First Amendment are violated when the federal government insists they include birth control coverage in their healthcare plans. If Roberts buys that argument, any employer can dream up religious values that exempt it for almost any regulatory law they choose.
On the other hand, the Hobby Lobby owners are not about to surrender their own “limited liability” protection from lawsuits against the company or criminal liability for the company’s violations of law or its failure to pay its debts. You can’t sue the shareholders for wrongful actions by their company. That is a cornerstone of American capitalism. It is also a principal source of corporate irresponsibility.
What we need now is a ferocious counterattack against these corporate owners—a campaign that demands they surrender these special privileges the government has given them. Why protect shareholders from blame when they claim the same constitutional rights—free speech, freedom of religion—that people possess? Human beings are held responsible for their debts, they go to prison for their crimes. Perhaps the owners of corporations should be made to take responsibility for theirs.
A similar contradiction is embedded in the Roberts Court decisions that have effectively destroyed the laws on campaign finance. The billionaires and their mammoth companies, banks and investment houses have been granted unlimited power to influence elections or, as we might say, buy the candidates. The Supreme Court has unilaterally unhinged the standard meaning of elections. Elections are no longer collective decisions among citizens choosing their governors. They have become bidding wars among fat cats and powerful economic interests, choosing representatives for the rest of us and thereby choosing our laws.
“We don’t let people stand up and shout in town meetings and drown out everyone else,” Greenfield observed. “When we come to elections where we make collective decisions, an equality norm comes into play, especially when the money comes from corporations. Corporations are creatures of the state; their purpose is not to affect the state and change. A reasonable thing to say to corporations is we are not going to let you skew the political process that created you.”
Magarian expands the point. “The limited liability corporation,” he observed, “owes its form and existence to a particular act of government, then the corporation turns around and says, ‘We are going to use our advantages and leverage them to influence the political process.’ Given the advantages corporations gain from government largesse and protections, the society should not have to suffer the loss of its influence. We want to sever their corporate influence from the decisions we the people make about economic questions.”
“In the long view,” Greenfield said, “we are in this bind because of the nature of corporations, not the nature of constitutional law. Over the last generation, the rise of shareholder primacy has meant that managers manage the company to maximize the share price. Willing to serve Wall Street, the corporation has really become the tool for the 1 percent. We need to rethink the nature of corporations. Rather than be a servant of a tiny sliver of the American people, the corporation should have a much more robust public obligation and should be managed in a more pluralistic way.”
Meanwhile, angry citizens do not need to wait on reform. They should get out their pitchforks and spread the message to those corporate lawyers who are corrupting democracy and to those cloistered right-wing justices who have such great solicitude for the privileged minority.
By: William Greider, The Nation, May 20, 2014
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