That’s the doctrine picked up and dusted off by the John Roberts Court in its ruling on Citizens United. Ignoring a century of modifying precedent, the court gave our corporate sovereigns a “sky’s the limit” right to pour money into political campaigns for the purpose of influencing the outcome. And to do so without public disclosure. We might as well say farewell to the very idea of fair play. Farewell, too, to representative government “of, by, and for the people.”
Unless.
Unless “We, the People”—flesh-and-blood humans, outraged at the selling off of our government—fight back.
It’s been done before. As my friend and longtime colleague, the historian Bernard Weisberger, wrote recently, the Supreme Court remained a procorporate conservative fortress for the next fifty years after the Southern Pacific decision. Decade after decade it struck down laws aimed to share power with the citizenry and to promote “the general welfare.” In 1895, it declared unconstitutional a measure providing for an income tax and gutted the Sherman Antitrust Act by finding a loophole for a sugar trust. In 1905, it killed a New York state law limiting working hours. In 1917, it did likewise to a prohibition against child labor. In 1923, it wiped out another law that set minimum wages for women. In 1935 and 1936, it struck down early New Deal recovery acts.
But in the face of such discouragement, embattled citizens refused to give up. Into their hearts, wrote the progressive Kansas journalist William Allen White, “had come a sense that their civilization needed recasting, that the government had fallen into the hands of self-seekers, that a new relationship should be established between the haves and the have-nots.” Not content merely to wring their hands and cry “Woe is us,” everyday citizens researched the issues, organized public events to educate their neighbors, held rallies, made speeches, petitioned and canvassed, marched and exhorted. They would elect the twentieth-century governments that restored “the general welfare” as a pillar of American democracy, setting in place legally ordained minimum wages, maximum working hours, child labor laws, workmen’s safety and compensation laws, pure foods and safe drugs, Social Security and Medicare, and rules to promote competitive rather than monopolistic financial and business markets.
The social contract that emerged from these victories is part and parcel of the “general welfare” to which the Founders had dedicated our Constitution. The corporate and political right seeks now to weaken and ultimately destroy it. Thanks to their ideological kin on the Supreme Court, they can attack the social contract using their abundant resources of wealth funneled—clandestinely—into political campaigns. During the fall elections of 2010, the first after the Citizens United decision, corporate front groups spent $126 million while hiding the identities of the donors, according to the Sunlight Foundation. The United States Chamber of Commerce, which touts itself as a “main street” grassroots organization, draws most of its funds from about a hundred businesses, including such “main street” sources as BP, ExxonMobil, JPMorgan Chase, Massey Coal, Pfizer, Shell, Aetna, and Alcoa. The ink was hardly dry on the Citizens United decision when the Chamber organized a covertly funded front and fired volley after volley of missiles, in the form of political ads, into the 2010 campaigns, eventually spending approximately $75 million. Another corporate cover group—the Americans Action Network—spent over $26 million of undisclosed corporate money in six Senate races and 28 House of Representative elections. And “Crossroads GPS” seized on Citizens United to raise and spend at least $17 million that NBC News said came from “a small circle of extremely wealthy Wall Street hedge fund and private equity moguls,” all determined to water down the financial reforms designed to avoid a collapse of the financial system that their own greed and reckless speculation had helped bring on. As I write in the summer of 2011, the New York Times reports that efforts to thwart serious reforms are succeeding. The populist editor Jim Hightower concludes that today’s proponents of corporate plutocracy “have simply elevated money itself above votes, establishing cold, hard cash as the real coin of political power. The more you spend on politics, the bigger your voice is in government, making the vast vaults of billionaires and corporations far superior to the voices of mere voters.”
Against such odds, discouragement comes easily. But if the generations before us had given up, slaves would be waiting on our tables and picking our crops, women would be turned back at the voting booths, and it would be a crime for workers to organize. Like our forebears, we will not fix the broken promise of America—the promise of “life, liberty, and the pursuit of happiness” for all our citizens, not just the powerful and privileged—if we throw in the proverbial towel. Surrendering to plutocracy is not an option. Confronting a moment in our history that is much like the one Lincoln faced—when “we can nobly save or meanly lose the last best hope on earth”—we must fight back against the forces that are pouring dirty money into the political system, turning it into a sewer.
How to fight back is the message of this book. Jeffrey Clements saw corporate behavior up close during two stints as assistant attorney general in Massachusetts, litigating against the tobacco industry, enforcing fair trade practices, and leading more than one hundred attorneys and staff responsible for consumer and environmental protection, antitrust practices, and the oversight of health care, insurance, and financial services. He came away from the experience repeating to himself this indelible truth: “Corporations are not people.” Try it yourself: “Corporations are not people.” Again: “Corporations are not people.” You are now ready to join what Clements believes is the most promising way to counter Citizens United: a campaign for a constitutional amendment affirming that free speech and democracy are for people and that corporations are not people. Impossible? Not at all, says Clements. We have already amended the Constitution twenty-seven times. Amendment campaigns are how we have always made the promise of equality and liberty more real. Difficult? Of course; as Frederick Douglass taught us, power concedes nothing without a struggle. To contend with power, Clements and his colleague John Bonifaz founded Free Speech for People, a nationwide nonpartisan effort to overturn Citizens United and corporate rights doctrines that unduly leverage corporate economic power into political power. What Clements calls the People’s Rights Amendment could be our best hope to save the “great American experiment.”
To find out why, read on, and as you read, keep in mind the words of Theodore Roosevelt, a Republican, who a century ago stood up to the mighty combines of wealth and power that were buying up our government and called on Americans of all persuasions to join him in opposing the “naked robbery” of the public’s trust:
It is not a partisan issue; it is more than a political issue; it is a great moral issue. If we condone political theft, if we do not resent the kinds of wrong and injustice that injuriously affect the whole nation, not merely our democratic form of government but our civilization itself cannot endure.
Introduction
What’s at Stake
America’s story is one of defiant struggle against the odds for an improbable vision: that all people, created and born free and equal, can live and govern together “in the pursuit of happiness.” This dream of a society of free people with equal rights, where people govern themselves, was unlikely indeed in the eighteenth century. In a world of empires, governed by royalty and divided by class, and in our own country, with millions enslaved, where women were considered the property of their husbands, and where land ownership was considered a prerequisite to participation in government, the pursuit—let alone the fulfillment—of this vision was far-fetched indeed.
Yet we Americans never let that vision go, despite dark days. In generation after generation, for more than two centuries, the power of this dream drove us and inspired the world. Despite all of the contradictions, shortcomings, missteps, and failures along the way, this basic American story remains true, and it is an undeniable triumph of the human spirit. Cynics and critics will have their say, but Americans really did come togethe
r to defeat the British Empire; to overthrow the evil of slavery and work for justice; to secure equal voting rights for women; to insist that everyone, not only the wealthy, has an equal vote and voice; to suffer, work, and fight year after year to defeat fascist, communist, fundamentalist, and totalitarian challenges to our vision of democracy, equality, and freedom.
People are free. People are equal. People govern. We have lived by that and died for that, and whenever we fell short, we worked and sacrificed for that, to ensure, as Abraham Lincoln said in one of our darkest moments, “that government of the people, by the people, for the people shall not perish from the Earth.”
To triumph again over powerful enemies of human equality, dignity, and freedom in our generation, we must properly identify the challenge and bring clarity of thinking and action to making our republic work again. As so often before, success and struggle begin with the simplest of propositions: Corporations are not people.
On January 20, 2010, the Supreme Court of the United States concluded, in effect, that corporations are people and have the people’s First Amendment free speech rights. According to the Supreme Court in Citizens United v. Federal Election Commission, we Americans cannot prevent corporations from using billions of dollars to control who wins and who loses elections or to control what our representatives in Congress and in state and local government do or do not do. In one stroke, the Court erased a century or more of bipartisan law and two previous Supreme Court rulings that affirmed the right, if not the duty, of the people to regulate corporate political spending to preserve the integrity of American democracy. Eight months after Citizens United, we had the most expensive election in American history, with nearly $4 billion, much of it secret corporate money channeled and laundered through front groups, spent to define who was good, who was bad, and what issues mattered. Nearly six out of ten eligible American voters did not even bother to vote.
Citizens United is not merely a mistake easily corrected, nor is the case simply about campaign finance or money in politics. Citizens United is a corporate power case masquerading as a free speech case. In many ways, the decision was less a break from the recent past than a proclamation about the sad reality of corporate power in America. The Court’s declaration in Citizens United that corporations have the same rights as people must strike most Americans as bizarre. To the five justices in the majority and to the corporate legal movement out of which they have come, however, it was more like a victory lap or an end zone dance for the three-decade-long campaign for corporate power and corporate rights.
This campaign, begun in the 1970s, had already succeeded in creating a corporate trump card to strike down federal, state, and local laws enacted for the public’s benefit. Even before Citizens United, the fabrication of corporate rights and the reality of corporate power controlled economic, energy, environmental, health, budget, debt, food, agriculture, and foreign policy in America.
The results? Massive job outsourcing abroad; destruction of our manufacturing capacity; wage stagnation for the vast majority of Americans and unprecedented enrichment of the very few; uncontrolled military spending and endless wars to secure energy supplies from a region from which we should have cut our dependence long ago; out-of-control health care spending at the same time that millions of people cannot get health care at all; bloated and unsustainable budgets and debt at every level of government; national and global environmental crisis; loss of wilderness and open land, and the takeover of public hunting and fishing grounds; chain store sprawl and gutting of local economies and communities; obesity, asthma, and public health epidemics; and a growing sense that the connection between Americans and our government has been lost.
Bill Moyers, the acclaimed journalist, has been an optimist for much of his legendary career as he explored faith and reason, war and peace, and the progress of American democracy. Here is what he said in Washington in late 2010:
Democracy in America has been a series of narrow escapes, and we may be running out of luck. The most widely shared assumption of our journey as Americans has been the idea of progress, the belief that the present is “better” than the past and things will keep getting better in the future. No matter what befalls us—we keep telling ourselves—“the system works.”
All bets are now off. The great American experiment in creating a different future together has come down to the worship of individual cunning in the pursuit of wealth and power, with both political parties cravenly subservient to Big Money. The result is an economy that no longer serves ordinary men and women and their families. This, I believe, accounts for so much of the profound sense of betrayal in the country, for the despair about the future….
America as a shared project is shattered, leaving us increasingly isolated in our separate realities.1
We do not have to live with this. We can put the American project back together again.
First, though, we need to see where Citizens United came from and how much we have lost to the triumph of corporate power. Most of the first six chapters of this book examine these themes from different perspectives. In Chapter Three, I digress to examine what a corporation actually is as a matter of law and fact. This may be a digression, but it lies at the heart of why corporations can have no constitutional rights superior to the rights of the American people to make laws governing corporations. Corporations are not merely private entities, owing no duties to the public. Corporations are legal creations of government.
I close with three essential steps to roll back corporate dominance of government: (1) a twenty-eighth amendment to the Constitution that will overturn Citizens United and corporate rights and restore people’s rights; (2) corporate accountability and charter reform to ensure that corporations better reflect the public policy reasons for which we allow the legal benefits of incorporation, such as limited liability, in the first place; and (3) election law reform, including increased public funding, greater transparency, and an end to legal political bribery.
Citizens United confronts us again with the basic question of American democracy—what do we mean when we say, as we do in the opening words of the Constitution, “We, the People”? That question drives the central narrative of the American story, and it is why a constitutional amendment campaign to reverse Citizens United is so important now.
Amendment campaigns are how we make the American vision of equality and liberty a reality. Amendment campaigns are how we accomplished much that we now take for granted:
All people are equal.
Every citizen of every gender, race, and creed gets to vote and participate in our society.
Women are equal and may vote just as men vote.
The poor can vote, even if they don’t have money for a poll tax.
Millions of men and women who have lived eighteen, nineteen, and twenty years, old enough to die for their country in war, may not be barred from voting.
We can, if we, the people, choose to do so, enact progressive income taxes and not place the tax burden only on middle-class and working families.
We elect the individuals who serve in the U.S. Senate, rather than watch from the sidelines while corporate-dominated political bosses appoint them.
Not one of these principles was established without Americans working for and winning constitutional amendments.
Now we need to work together again, to campaign for a fundamental proposition, encourage a national conversation, and force votes in towns and cities, state legislatures, and Congress, so that people and our representatives state where they stand on this question of our time: Must the American people cede our rights and our government to global corporations? I hope this book will show why this question is so important and how Americans can succeed in restoring our free republic, with equality for all.
Finally, a word about nomenclature. I am not “anticorporate,” and this book is not “anticorporate,” whatever that means. When I refer to “corporations” and “corporate power” and the like, I am talking about large
, global or transnational corporations. Size matters. Complexity and power matter. Whether corporations operate in the economic sphere without dominating the political sphere matters.
Thousands and thousands of corporations in America are just like the corporation I set up for my law firm and just like the kinds of corporations that you may have set up or worked in. They are convenient legal structures for businesses to make economic activity more efficient, productive, flexible, and, we hope, profitable (to be sure, I am not “antiprofit” either).
If I am “anti” anything, I am opposed to any force that takes God-given rights away from people and threatens one of the most remarkable runs of democracy and republican government in the history of humanity. Today that force is the combination of massive and insufficiently controlled global corporations. To succeed in making government of the people real in our generation, we will need to restore our right and duty to check, balance, and restrain that power.
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