Fascism Coming to a Court Near You

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http://www.huffingtonpost.com/thom-hartmann/fascism-coming-to-a-court_b_226256.html
Fascism Coming to a Court Near You

Corporate Personhood and the Roberts' Court

by Thom Hartmann

As the 1983 American Heritage Dictionary noted, fascism is: "A system of
government that exercises a dictatorship of the extreme right, typically
through the merging of state and business leadership, together with
belligerent nationalism."

Get ready.

Last year a right-wing group put together a 90-minute hit-job on Hillary
Clinton, and wanted to run it on TV stations in strategic states. The
Federal Election Commission ruled that the "documentary" was actually a
"campaign ad" and thus fell under the restrictions on campaign spending of
McCain-Feingold, and thus stopped it from airing. (Corporate contributions
to campaigns have been banned repeatedly and in various ways since 1907
when Teddy Roosevelt pushed through the Tillman Act.)

Citizens United, the right-wing group, sued the Supreme Court, with
right-wing hit man and former Reagan solicitor general Ted Olson as their
lead lawyer.

This new case, Citizens United v. Federal Election Commission, presents
the best opportunity for the Roberts Court to use its five vote majority
to totally re-write the face of politics in America, rolling us back to
the pre-1907 era of the Robber Barons.

As Jeffrey Toobin wrote in The New Yorker ("No More Mr. Nice Guy"): "In
every major case since he became the nation's seventeenth Chief Justice,
Roberts has sided with the prosecution over the defendant, the state over
the condemned, the executive branch over the legislative, and the
corporate defendant over the individual plaintiff. Even more than Scalia,
who has embodied judicial conservatism during a generation of service on
the Supreme Court, Roberts has served the interests, and reflected the
values, of the contemporary Republican Party."

And the only way the modern Republican Party can recover their power over
the next decade is to immediately clear away all impediments to
unrestrained corporate participation in electoral politics. If a
corporation likes a politician, they can make sure he or she is elected
every time; if they become upset with a politician, they can carpet-bomb
her district with a few million dollars worth of ads and politically
destroy her.

And it looks like that's exactly what the Roberts Court is planning. In
the Citizens United case, they asked for it to be re-argued in September
of this year, going all the way back to the 1980s and re-examining the
rationales for Congress to have any power to regulate corporate "free
speech."

As Robert Barnes wrote in The Washington Post on June 30, 2009, "Citizens
United's attorney, former solicitor general Theodore B. Olson, had told
the court that it should use the case to overturn the corporate spending
ban the court recognized in Austin v. Michigan Chamber of Commerce, as
well as its decision in 2003 to uphold McCain-Feingold as constitutional."

The setup for this came in June of 2007, in the case of the Federal
Election Commission v. Wisconsin Right To Life, in which the Roberts Court
ruled that the FEC couldn't prevent WRTL from running ads just because
they were a corporation.

"A Moroccan cartoonist," Justice Scalia opened his opinion with his usual
dramatic flair, "once defended his criticism of the Moroccan monarch (lèse
majesté being a serious crime in Morocco) as follows: 'I'm not a
revolutionary, I'm just defending freedom of speech. I never said we had
to change the king-no, no, no, no! But I said that some things the king is
doing, I do not like. Is that a crime?'"

"Well," Scalia wrote, "in the United States (making due allowance for the
fact that we have elected representatives instead of a king) it is a
crime, at least if the speaker is a union or a corporation (including
not-for-profit public-interest corporations)... That is the import of §203
of the Bipartisan Campaign Reform Act of 2002 (BCRA)."

The idea of Congress passing laws that limited corporate "free speech" was
clearly horrifying to Scalia. He went after the 1990 Austin v. Michigan
Chamber of Commerce case, in which the MCC was limited in their "free
speech" in a political campaign because they were a corporation.

"This (Austin) was the only pre-McConnell case in which this Court had
ever permitted the Government to restrict political speech based on the
corporate identity of the speaker," he complained. "Austin upheld state
restrictions on corporate independent expenditures," and, God forbid, "The
statute had been modeled after the federal statute that BCRA §203
amended..."

The Austin case, Scalia concluded his opinion with four others nodding,
"was a significant departure from ancient First Amendment principles. In
my view, it was wrongly decided."

Scalia also quoted at length from opinions in the Grosjean v. American
Press Co case, "holding that corporations are guaranteed the 'freedom of
speech and of the press, safeguarded by the due process of law clause of
the Fourteenth Amendment,'" and from the 1986 Pacific Gas & Elec. Co. v.
Public Util. Comm'n of Cal. case: "The identity of the speaker is not
decisive in determining whether speech is protected"; "[c]orporations and
other associations, like individuals, contribute to the 'discussion,
debate, and the dissemination of information and ideas' that the First
Amendment seeks to foster."

The bottom line, for Scalia, was that, "The principle that such advocacy
is 'at the heart of the First Amendment's protection' and is
'indispensable to decision making in a democracy' is 'no less true because
the speech comes from a corporation rather than an individual."

Continuing to quote from a plurality opinion in Pacific Gas, Scalia
"rejected the arguments that corporate participation 'would exert an undue
influence on the outcome of a referendum vote'; that corporations would
'drown out other points of view' and 'destroy the confidence of the people
in the democratic process..."

He even quoted an opinion in the Grossjean case, writing that
"corporations are guaranteed the 'freedom of speech and of the
press...safeguarded by the due process of law clause of the Fourteenth
Amendment.'"

The Fourteenth Amendment, which says that no "person" shall be denied
"equal protection of the laws," was promulgated after the Civil War to
free the slaves. But corporations have long asserted that because it says
"person" rather than "natural person" it included giving, in 1868 when the
Amendment was ratified into law, full Constitutional rights under the Bill
of Rights to corporations. (Corporations are, at law, known as "artificial
persons" and humans are "natural persons" - both have to have some sort of
"personhood" in order to pay taxes, sue and be sued, etc.)

As Scalia wrote in his opinion in FEC v. Wisconsin Right To Life: "...FECA
was directed to expenditures not just by 'individuals,' but by 'persons,'
with 'persons' specifically defined to include 'corporation[s].'"

Chief Justice Roberts weighed in, too, in the main decision. It's a
fascinating decision to read - and search for occurrences of the word
"corporation" - and here's one of Roberts' more convoluted observations in
defense of corporate free speech rights:

Accepting the notion that a ban on campaign speech could also embrace
issue advocacy would call into question our holding in Bellotti that the
corporate identity of a speaker does not strip corporations of all free
speech rights. It would be a constitutional 'bait and switch' to conclude
that corporate campaign speech may be banned in part because corporate
issue advocacy is not, and then assert that corporate issue advocacy may
be banned as well, pursuant to the same asserted compelling interest,
through a broad conception of what constitutes the functional equivalent
of campaign speech, or by relying on the inability to distinguish campaign
speech from issue advocacy.

Bottom line - corporate free speech rights are Real Rights that Must Be
Respected.

Justice Souter wrote a rather frightening dissent (this was a 5-4
decision, with the usual right-wing suspects on the "5" side): "Finally,
it goes without saying that nothing has changed about the facts. In
Justice Frankfurter's words, they demonstrate a threat to 'the integrity
of our electoral process, which for a century now Congress has repeatedly
found to be imperiled by corporate, and later union, money: witness the
Tillman Act, Taft-Hartley, FECA, and BCRA.

"McConnell was our latest decision vindicating clear and reasonable
boundaries that Congress has drawn to limit 'the corrosive and distorting
effects of immense aggregations of wealth,' and the decision could claim
the justification of ongoing fact as well as decisional history in
recognizing Congress's authority to protect the integrity of elections
from the distortion of corporate and union funds.

"After today, the ban on contributions by corporations and unions and the
limitation on their corrosive spending when they enter the political arena
are open to easy circumvention, and the possibilities for regulating
corporate and union campaign money are unclear.

"The ban on contributions will mean nothing much, now that companies and
unions can save candidates the expense of advertising directly, simply by
running 'issue ads' without express advocacy, or by funneling the money
through an independent corporation like Wisconsin Right To Life."

Sounding almost depressed, Souter closed his dissent with these words: "I
cannot tell what the future will force upon us, but I respectfully dissent
from this judgment today."

The attempt of corporations (and their lawyers, like Roberts was before
ascending to a federal court) to usurp American democracy is nothing new,
as David Souter well knew. Fascism has always been a threat to democracy.

In early 1944 the New York Times asked Vice President Wallace to, as
Wallace noted, "write a piece answering the following questions: What is a
fascist? How many fascists have we? How dangerous are they?"

Vice President Wallace's answers to those questions were published in The
New York Times on April 9, 1944, at the height of the war against the Axis
powers of Germany and Japan:

"The really dangerous American fascists," Wallace wrote, "are not those
who are hooked up directly or indirectly with the Axis. The FBI has its
finger on those... With a fascist the problem is never how best to present
the truth to the public but how best to use the news to deceive the public
into giving the fascist and his group more money or more power."

"American fascism will not be really dangerous," he added in the next
paragraph, "until there is a purposeful coalition among the cartelists,
the deliberate poisoners of public information..."

Noting that, "Fascism is a worldwide disease," Wallace further suggested
that fascism's "greatest threat to the United States will come after the
war" and will manifest "within the United States itself."

In his strongest indictment of the tide of fascism the Vice President of
the United States saw rising in America, he added:

"They claim to be super-patriots, but they would destroy every liberty
guaranteed by the Constitution. They demand free enterprise, but are the
spokesmen for monopoly and vested interest. Their final objective toward
which all their deceit is directed is to capture political power so that,
using the power of the state and the power of the market simultaneously,
they may keep the common man in eternal subjection."

Finally, Wallace said, "The myth of fascist efficiency has deluded many
people. ... Democracy, to crush fascism internally, must...develop the
ability to keep people fully employed and at the same time balance the
budget. It must put human beings first and dollars second. It must appeal
to reason and decency and not to violence and deceit. We must not tolerate
oppressive government or industrial oligarchy in the form of monopolies
and cartels."

As Wallace's President, Franklin D. Roosevelt, said when he accepted his
party's renomination in 1936 in Philadelphia:

"...Out of this modern civilization, economic royalists [have] carved new
dynasties.... It was natural and perhaps human that the privileged princes
of these new economic dynasties, thirsting for power, reached out for
control over government itself. They created a new despotism and wrapped
it in the robes of legal sanction.... And as a result the average man once
more confronts the problem that faced the Minute Man...."

Speaking indirectly of the fascists that Wallace would directly name
almost a decade later, Roosevelt brought the issue to its core:

"These economic royalists complain that we seek to overthrow the
institutions of America. What they really complain of is that we seek to
take away their power."

But, he thundered in that speech:

"Our allegiance to American institutions requires the overthrow of this
kind of power!"

In just a few months, we may again stand at the same crossroad Roosevelt
and Wallace confronted during the Great Depression and World War II.
Fascism is rising in America, this time calling itself "compassionate
conservatism," and "the free market" in a "flat" world. The point of its
spear is "corporate personhood" and "corporate free speech rights."

The Roberts' Court's behavior - if this prediction of their goal for this
fall is accurate (and it's hard to draw any other conclusion) - now eerily
parallels the day in 1936 when Roosevelt said: "In vain they seek to hide
behind the flag and the Constitution. In their blindness they forget what
the flag and the Constitution stand for."

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