Does Justice Roberts' Opinion Serve the People or the Corporations?

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AlterNet / By Steven Rosenfeld

Why Justice Roberts' Opinion Could Set Alarming Precedents

Roberts' opinion sets alarming precedents because it ignores decades of established Court doctrine, which could have massive implications.

June 29, 2012  |  

Photo Credit: A.M. Stan

Forget all the spin and analysis you are reading this morning about how much of a political moderate Supreme Court Chief Justice John Roberts is for siding with the Court’s left-leaning wing and saving the Affordable Care Act from the judicial firing squad.
Roberts' opinion for the majority is radical and dangerous—and sets alarming precedents because it ignores decades of established Court doctrine, which associate Justice Ruth Bader Ginsberg noted out in exquisite detail in a lengthy dissent trashing the ruling. (See page 66.) Moreover, Robert’s opinion suggests that there is a majority on the Court that would vote to take the country back to the pre-Constitution days, when there was no clear authority to regulate interstate commercial activity or for the states to obey Congress.

The Chief Justice’s “rigid reading of the Commerce Clause makes scant sense and is stunningly retrogressive,” Ginsberg said, in a dissent joined by Associate Justices Elena Kagan, Sonia Sotomayor and Stephen Breyer. Indeed, her dissent, like that of retired Justice John Paul Stevens in the Citizens United ruling that accused the ideological conservative majority of inventing facts to fit its politicized conclusion, will likely emerge as the most prescient and memorable aspect of the ACA ruling.

Health Insurance Is Not An Interstate Activity?

Roberts’ majority opinion said that the health insurance coverage mandate of the Act was permissible, but not under the Constitution’s Commerce Clause, which gives Congress power to regulate interstate business, nor under the Necessary and Proper Clause, which gives Congress power to legislate to address genuine problems.

As Ginsberg’s dissent and the ACA’s defenders noted in Court, healthcare costs account for more than one-sixth of the U.S. economy, and when uninsured people walk into hospitals seeking medical care, it’s other insurance policyholders—not the insurance companies—who end up paying for their medical bills.

Instead, Roberts offered a convoluted analysis ignoring that basic fact. He said that the law’s insurance-buying requirement was not a requirement at all, because all the law did was impose a tax on people who didn’t buy a health plan after January 2014. Roberts said that not buying a health plan was not an economic activity and had no consequences. But he then went on to say that not having a plan was something that could be subject to a federal income tax penalty. And that taxing power was constitutional, he said.

“The mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income,” he wrote. “And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power.”

Robert’s twisted reasoning was a reflection of an argument made by right-wing think-tanks and commentators such as George Will that want the Supreme Court to resurrect the so-called Lochner Era, where in 1905 the Court started issuing decisions reversing progressive healthcare and labor reforms, holding an individual’s freedom to have a "contract" with their employer was more deserving of constitutional protection than societal concerns.

“The Chief Justice’s limitation of the commerce power to the regulation of those actively en­gaged in commerce finds no home in the text of the Consti­tution or our decisions,” Ginsberg wrote. “In the early 20th century, this Court regularly struck down economic regulation enacted by the peoples’ repre­sentatives in both the States and the Federal Government... The Chief Justice’s Commerce Clause opinion, and even more so the joint dissenters’ reasoning… bear a disquieting resem­blance to those long-overruled decisions.”

The problem for progressives with Roberts’ finding that there is no basis in the Commerce Clause, or Necessary and Proper Clause, is that this legal viewpoint—on top of the four other right-wing justices who said they would have thrown out the ACA as congressional overreach—suggests that in the future there could be a Supreme Court majority that would invalidate other laws regulating the national economy— such as a carbon tax to combat climate change, or new national energy strategy.

These so-called constitutional "originalists" seem intent on not just upholding their extremely pro-business vision of how Congress should address national issues—by providing more customers for the private sector—but they seem intent on taking the country back in time to before the Constitution was even written.

That would sound like an extreme interpretation of the ACA ruling, were it not for the other big piece of the ACA decision, which tells states that they can ignore Congress’ directions to expand state-run Medicaid programs providing medical care for the poor, which disproportionately are single mothers and children.

The Outrageous Medicaid Ruling

Roberts told states that they did not have to implement the state government section of the law, which would open up Medicaid programs to everyone under age 65 whose income was under 133 percent of the poverty line. (Seniors 65 and older can get healthcare under the federal Medicare program.)

Roberts decreed that states that did not want to implement the ACA would not face the fiscal penalty of losing all of their federal Medicaid funds—as envisioned by the law. Instead they would only lose funds for the Medicaid expansion, such as for covering more poor people and creating medical clinics in underserved areas.

“The Court today limits the financial pressure the Secretary [of Health and Human Services] may apply to induce States to accept the terms of the Medicaid expansion,” Roberts wrote. “As a practical matter, that means States may now choose to reject the expansion; that is the whole point.”

That option for states—which scholars say may be the first time the Court has found a congressional spending requirement to be unconstitutionally coercive—gives the GOP license to use healthcare for the poor as a political pawn. That tactic is hardly new—and already on Thursday right-wing Republicans signaled they were ready to sacrifice healthcare for the poor to score political points.
“Today’s ruling crystallizes all that’s at stake in November’s election,” said Virginia Gov. Bob McDonnell, Republican Governors Association chairman. “The only way to stop Barack Obama’s budget-busting healthcare takeover is by electing a new president.”

“We are very concerned that a sudden, dramatic increase in Medicaid spending could threaten Ohio’s ability to pursue needed reforms in other areas, such as education,” Ohio’s GOP Gov. John Kasich said in a quickly issued statement Thursday.

Never mind that Ohio will be raking in millions of dollars from natural gas fracking well fees by the time its share of ACA Medicaid payments would begin in three years. There are a handful of red state governors that previously rejected congressional economic stimulus funds—as they came from a Democratic-majority Congress and Obama.

Texas, South Carolina, Louisiana and Mississippi refused to accept federal dollars to extend unemployment benefits in 2009. Florida also rejected $2 billion for a high-speed rail line between Orlando and Tampa last year. The open question is will red-state Republicans also reject the ACA’s new federal Medicaid subsidies?

“It will be their option,” answered Stan Dorn, a senior health policy fellow with the Washington-based Urban Institute. “The federal government will not compel states to do it by threatening to withhold money or taking them to court.”
GOP politicians’ beating up on the poor is neither new nor radical. What’s radical about this part of the ACA ruling is the potential impact on public sector—not private sector—healthcare, because that may slow the creation of a uniform nationwide public system that could one day lead to universal government-delivered healthcare.

Having a patchwork of different state systems and services would hamper creation of a national public option—which progressives have long desired. In this respect, the Court’s ruling upholding the requirement that everyone have a health plan (private or public) and allowing states to opt out of Medicaid expansion is exceptionally pro-business.

Moreover, the Medicaid precedent also raises the question of what other costly federal programs states may object to—and refuse to implement if they forego the funding that comes with it? During the Court’s hearing on the ACA, Justices Sonia Sotomayor and Elena Kagan both noted that limiting Congress’ spending authority—as the Court majority did in this case—could limit Congress’s responses in national crises.

“When future Spending Clause challenges arrive, as they likely will in the wake of today’s decision, how will liti­gants and judges assess whether “a State has a legitimate choice whether to accept the federal conditions in ex­change for federal funds”?” wrote Ginsberg, quoting Roberts. “Are courts to measure the number of dollars the Federal Government might withhold for noncompliance?”
“The portion of the State’s budget at stake? And which State’s—or States’— budget is determinative: the lead plaintiff, all challenging States (26 in this case, many with quite different fiscal situations), or some national median? Does it matter that Florida, unlike most States, imposes no state income tax, and therefore might be able to replace foregone federal funds with new state revenue? Or that the coercion state officials in fact fear is punishment at the ballot box for turning down a politically popular federal grant?

“The coercion inquiry, therefore, appears to involve political judgments that defy judicial calculation.”

Ginsberg said the majority’s Medicaid analysis was exactly the opposite of how the Constitution envisioned the separation of powers between Congress and the states.

“At bottom, my colleagues’ position is that the States’ reliance on federal funds limits Congress’ authority to alter its spending programs,” she wrote. “This gets things backwards: Congress, not the States, is tasked with spending federal money in service of the general welfare. And each succes­sive Congress is empowered to appropriate funds as it sees fit.”

While many commentators praised the decision for not overturning the ACA, and lauded the Chief Justice for siding with the Court’s moderates, they are overlooking how pro-business, radical and politicized the ACA ruling is. Those politics will not just play out in the presidential campaign, where Mitt Romney on Thursday again vowed to overturn the law if elected, but inside red states as anti-Obama GOP leaders will use Medicaid as a political pawn.

Looking further down the road, the Medicaid precedent will tempt other states’ rights rebellions to rise, and also curtail Congress’s ability to respond—as a nation of 50 states—in a national emergency. Not only is the Roberts' ruling entirely pro-business, by sending tens of millions of new customers to insurers while limiting state expansion of public care, it is based on a right-wing vision of a shrunken Constitution and diminished congressional powers.

That is as radical a reshaping of congressional powers to regulate economic issues as the Citizens United was a radical reshaping of the campaign finance landscape. If you are reading media accounts praising Roberts, read Ginsberg’s dissent. It reveals just how pro-business, ideological and ahistorical the Court under Roberts truly is.

Steven Rosenfeld covers democracy issues for AlterNet and is the author of "Count My Vote: A Citizen's Guide to Voting" (AlterNet Books, 2008).

Romney and the Rise of the Corporate Super-predator Class

June 25, 2012 at 21:20:05

Romney and the Rise of the Corporate Super-predator Class

Remember the "super-predators"? They were the supposedly super-violent youngsters of dark complexion that conservatives kept screaming about in the 1990s. We were told they were about to unleash an unprecedented wave of vicious crime any day now.

Those super-predators don't exist, and never did. But the myth of the "super-predator" offers us a new (and, admittedly, partially ironic) lens through which to view today's corporate executives, a class of people which is apparently remorseless about the harm it causes in the pursuit of self-enrichment.
Let's be clear: No group of human beings is uniquely predisposed toward evil. But society and government are supposed to discourage people from from acting on their worst impulses, and when it comes to the corporate class they -- and we -- have failed.

Now the rise of the Corporate Super-predator Class could culminate in the election of one of its own to the highest office in the land.

Fear of Children

The myth of the juvenile "super-predator" was promoted by conservatives in the 1990s and 2000s. As Fairness and Accuracy in Media reported in 1998, politicized professors and mainstream commentators were terrifying the public with stories about the "remorseless brutality" we can expect to see from the "teenaged time bomb" that TIME Magazine's scare piece described as follows: "They are just four, five and six years old now, but already they are making criminologists nervous."

But those super-predator children never existed. In fact, juvenile crime rates have declined "significantly" since the early 1990s, according to FBI statistics. But the fear engendered by superpredator scare tactics has distracted millions of Americans from their economic plight, and the forces behind it. Maybe that's why ALEC and other corporate-sponsored organizations have funded the "Stand Your Ground" laws that led to the death of Trayvon Martin and a number of other young people.

If stoking fear of our minority children was a tactic to divert attention from the behavior of corporate leaders, it's been remarkably successful. Stories that "super-predators" were preying on the survivors of Hurricane Katrina helped distract the public temporarily from the real horror taking place there -- the horror of government neglect.

The "super-predator" described in now-discredited sociological works was a person who was inherently amoral and criminal because he lived in a social milieu which lacked both a moral framework and a means of restraining and punishing bad behavior.

Which gets us to Mitt Romney and today's top corporate executives.

One of Their Own

A highly wealthy American is now running for the highest office in the land with a nomination bought and paid for by his ultra-wealthy backers. The corporate class finally has the chance to elect one of its own, rather than depending on the compliance of someone else in that office.

Am I saying that the country's top executives, some of whom I have known and worked with, are the real-life equivalent of those mythical, ultra-violent young people described in the "super-predator" scare stories? No. Many of them are good, decent people who are doing the best job they can.

But there is a new culture of corporate leadership, one that's been growing over the last 30 to 40 years. This new culture is less moral and more selfish then the leadership culture that preceded it, and it is almost sociopathically indifferent to the effects of its own behavior on other people.

Spotting a Super-predator

The now-discredited theory laid out the characteristics of those mythical teen super-predators. DeIulio said each generation of predator would be "three times as dangerous" as the generation that preceded it. They would, said DeIulio, be amoral, "radically impulsive," and "brutally remorseless. "

Consider the evidence regarding corporate America:

No current bank CEO has expressed remorse for the global impact of their misbehavior: tens of trillions of dollars in lost wealth, hundreds of millions of un- or under-employed people worldwide (and roughly 24 million of them here in the US), millions of foreclosures, nearly one home in three underwater, and a steep rise of families (including children) living in poverty.

Many of these bank CEOs are second- and third-generation bankers. But then, as John DiIulio wrote, "kids of whatever race, creed, or color are most likely to become criminally depraved when they are morally deprived" in their upbringing.

Super-predators in Everyday Life

The near-sociopathic disregard for others isn't limited to Wall Street, either. When I flew from New York to Los Angeles on Saturday, I stood in a crowd of people for over an hour waiting to pass through security. The temperature was high, there was no water, no place to sit, nobody coming through to check on the well-being of the people in line (some of whom were elderly, disabled, or carrying small children). This radical disregard for customer well-being on behalf of an entire industry would have been considered unthinkable a couple of decades ago.

Other companies, including cable television outlets, provide inferior service and then force customers to sacrifice hours out of their day in order to correct a mistake which was not theirs to begin with.

Facebook is in a category of its own. Its interface is badly designed. It treats its customers' privacy with arrogant disregard. It hasn't provided a real innovation since it was first conceived, an idea which was not what it ultimately became (and which was not exactly original to Facebook's founders). Like other corporations of the corporate super-predator class, Facebook believes that its customers (like other members of society) are there to be used, not served.
The corporate super-predator mentality isn't limited to customers, either, or even to innocent bystanders. Shareholders, once considered the true owners of a publicly traded company, are now considered just another class of human being to be bilked, swindled, and misled. That viewpoint has been encouraged by the SEC, through the collusion of the Justice Department, which has often allowed investor fraud to be settled with no criminal charges for the wrongdoers and a big settlement that's paid by ... the swindled shareholders themselves.

Personal Testimony

Maybe you can relate to this. I actually said this once to somebody working at a router company's call center:

"For the love of God, as one human being to another, I have already gone through your scripted process with other employees for two and a half hours. On behalf of the souls within each of us, please do not start the twenty-minute script that begins, 'First unplug your router and wait twenty seconds' because I've been through that four times already."

As you might imagine, there was a confused pause. Then he said: "First, unplug your router and wait twenty seconds."

That router company was exhibiting one of the characteristics of the Corporate Super-predator Class: a near-pathological indifference to its own customers' humanity. It doesn't have to be that way.

"Je ne regrette rien ..."

John Iulio: "(T)he super-predators are radically self-regarding. They regret getting caught."

The only banker who has publicly expressed real remorse at what the industry has done is former Citigroup chair John Reed, in his thoughtful interview with Bill Moyers. But Reed's a member of the earlier, non-predatory breed of corporate executive who believed in the executive's traditional mission: to deliver a service or product well, to build a company that will last for the long haul, and to treat everyone fairly in the process.

That's the ethic that typically motivated executives across political boundaries. Even industrialists like Howard Hughes and Henry Ford, both of whom became virulently right-wing (Ford also became publicly anti-Semitic), were genuine engineering and business innovators. That distinguishes them from the executives in today's bloated financial sector, or predatory executives in non-innovative businesses.

So too did Steve Jobs' dedication to creating the best possible products for his customers. His offshoring practices brought him well-deserved criticism from me and others, but his success was built on creation and not predation.

It's unlikely that a new Steve Jobs could succeed in today's super-predator business economy. Today's corporate model is Mark Zuckerberg's: no manufacturing costs, no attention to detail or design, no bothersome concerns about quality. Just capture a market aggressively and protect yourself from all comers until you can really enrich yourself with a pumped-up IPO.

You're so vain, you probably think these words are about you

How "radically self-regarding" are today's super-predator CEOs? It's not enough to escape censure or conviction for their deeds. Like JPMorgan Chase CEO Jamie Dimon, they demand adoration from the public that they've so badly abused, and they're furious if they don't get it. Like Dimon, they're capable of claiming they're far better than their peers, while at the same time arguing that none of them should ever be criticized.

(DeIulio: "Under some conditions they are affectionate and loyal to fellow gang members or relatives ...")

And, like Dimon, they're more than happy to propose cutting Social Security and Medicare benefits for the elderly in order to pay the costs for their own malfeasance and ensure that their own taxes are kept low. (DeIulio: ".... but not even morns or grandmorns are sacred to them.")

The self regard can become truly stunning, as when Goldman Sachs CEO Lloyd Blankfein said "We're doing God's work." The apotheosis of corporate super-vanity may well have come when hedge fund manager Stephen Schwarzman of Blackstone claimed that raising his taxes to the level paid by ordinary citizens was "like when Hitler invaded Poland in 1939."

To a super-predator, being treated like other human beings is like being subjected to a war of extermination.

Super-predators Are Made, Not Born

How do people like this rise to positions of prominence?

My own business experience included a number of experiences that served as a training ground for predation: Corporate "team building" exercises that rewarded cynicism and idealized the abuse of customers. Tests of my willingness to bend ethically. Slang terms from my bosses and peers that fostered a culture of insensitivity toward other people.

And mine was a pretty mild corporate experience. The people I worked for and with tended to be moral, fair, and ethical people for the most part. There are many of them out there, and a lot of them are still running corporations. But the financial inequities between the 99 percent and the 1 percent are at play among the 1 percent, too. The wealthiest and fastest-rising corporate stars are those who display the characteristics of the corporate predator.

But the super-predators couldn't exist if government policy didn't encourage their rise: through tax policy, through deregulation, through a refusal to enforce and strengthen antitrust laws (it's hard for customers to avoid a predatory company if it has no real competitors) through lax enforcement of current laws, and through the unwillingness of our leaders to "name and shame" those who exploit their customers, their shareholders, or their society in pursuit of selfish ends.

Outsourcer in Chief?

Is David Axelrod right to describe Mitt Romney as the "Outsourcer in Chief," as he did in a recent press call? Yes -- provided that he's allowed a little poetic license. Axelrod was also right when he added that Romney's job at Bain Capital was maximizing value for his investors, not creating or preserving US jobs. Many corporate executives, including me, have been obliged to consider outsourcing when working in a for-profit environment.

The issue is deeper than that. Bain Capital's fortunes, and Mitt Romney's, were always dependent on the kindness of strangers -- specifically, strangers in high government office. Bain's first big success was made possible because of tax concessions granted to it by the government of Massachusetts.

Romney's personal wealth was greatly increased by the Federal government's decision to treat much of his income as investment income and tax it at a much lower rate than many schoolteachers or secretaries pay. Romney was able to pay the low 15 percent rate, which was supposedly created to encourage personal investment, even at times when the income in question came from services fees and not from investing his own capital.

Romney and his partners also benefited from the fact that government leaders chose to offer this low tax rate even for investments that took jobs away, destroyed companies, or shipped jobs overseas. The failure to distinguish between productive and destructive investment was a choice -- a choice to reward destructive financial behavior as richly as we reward constructive financial behavior.

And that decision encouraged the growth of super-predator capitalism. After all, which is harder: To come up with a new idea and build a company around it, or to swoop down on companies, force them to acquire huge debts, use the borrowed money to pay yourself huge fees (for which you're taxed as if you were a real investor), and then use some of your new fortune to pervert the political process even more?

Enriched by government generosity, encouraged by government policy to act against the public interest: That's the Bain Capital story -- and the Mitt Romney story too. Romney wasn't born bad, in a financial sense. He was encouraged to be bad by government policy, which he then entered political life in order to continue the cycle of encouragement.

There's a moral to this story, and it's a simple one: If you reward predatory behavior, you will create more predators.

Stopping the Super-predators: It's Everybody's Job

But if our corporate predators have behaved poorly, so have our political and social leaders. They've failed to censure them for their misbehavior -- not just legally, but by using the "bully pulpit" to lecture them on their misdeeds. President Obama began to do that this year, ever so gently, and even these mild words have driven the corporate class into a frenzy.

Yet it is the misbehaving executives of corporate America, along with their political enablers (Republican Rep. Spencer Bachus: "Washington exists to serve the banks") that has led these executives into a life of "moral poverty."
John DeIulio defined moral poverty this way...

"It is the poverty of being without loving, capable, responsible adults who teach you right from wrong. It is the poverty of being without parents and other authorities who habituate you to feel joy at others' joy, pain at others' pain, happiness when you do right, remorse when you do wrong. It is the poverty of growing up in the virtual absence of people who teach morality by their own everyday example and who insist that you follow suit."

It's up to our leaders -- and us -- to lead tomorrow's corporate executives away from a life of corporate super-predation. Fortunately, you can help. You can be one of the adults who provides a moral role model the next generation of business leaders from turning into Corporate Super-Predators.
And you can help prevent Mitt Romney from becoming President of the United States.

Conscience of a Conservative

But if society turned Mitt Romney into a corporate predator, it is Romney's conscience that must carry the burden for his lack of remorse. He has never expressed regrets for the lost jobs or human suffering created by his work.
Whatever your disappointments with Obama, we cannot allow a member of the Super-predator Corporate Class to lead this nation. Members of the Super-predator Corporate Class reinforce each other's immoral behavior, whereas Obama's genteel remonstrations of corporate America -- buffered as they are by words of undeserved praise for the likes of Jamie Dimon -- have driven the Corporate Predator class into a frenzy.

To his great credit, John Iulio distinguished himself from the corporate predators -- and from Mitt Romney -- by expressing profound remorse for his actions. His expressions of regret, and his genuine efforts to undo the wrongs he had helped perpetrate, marked him as a human being of conscience and consciousness.

 But before that happened, DeIulio wrote with horror about young criminals' "vacant stares and smiles, and the remorseless eyes (that) were at once too frightening and too depressing."

Which reminds me: Did you happen to catch Jamie Dimon's Capitol Hill testimony last week?


http://www.huffingtonpost.com/rj-eskow/the-dumbest-bipartisa

Host of 'The Breakdown,' Writer, and Senior Fellow, Campaign for America's Future 

 

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The Psychopathic Supreme Court in an Unconstitutional Decision Extends Power of Corporations to Buy Elections

Published on Monday, June 25, 2012 by The Nation

Supreme Court Extends Power of Corporations to Buy Elections

by John Nichols

 

The U.S. Supreme Court may still retain some familiarity with the Constitution when it comes to deciding the nuances of cases involving immigration policy and lifetime incarceration. But when it comes to handing off control of American democracy to corporations, the court continue to reject the intents of the founders and more than a century of case law to assure that CEOs are in charge.

 

The US Supreme Court, writes Nichols, has clearly chosen sides as it makes corporate domination of elections easier and easier while at the same time placing further restrictions on how labor unions can spend. 

Make no mistake, this is not a "free speech" or "freedom of association" stance by the court's Republican majority. That majority is narrowing the range of debate. It is picking winners. To turn a phrase from the old union song, this court majority has decided which side it is on.

The same court that in January, 2010, ruled with the Citizens United decision that corporations can spend freely in federal elections -- enjoying the same avenues of expression as human beings -- on Monday ruled that states no longer have the ability to guard against what historically has been seen as political corruption and the buying of elections.

The court's 5-4 decision in the Montana case of American Tradition Partnership v. Bullock significantly expands the scope and reach of the Citizens United ruling by striking down state limits on corporate spending in state and local elections.  "The question presented in this case is whether the holding of Citizens United applies to the Montana state law,” the majority wrote. “There can be no serious doubt that it does.”

Translation: If Exxon Mobil wants to spend $10 million to support a favored candidate in a state legislative or city council race that might decide whether the corporation is regulated, or whether it gets new drilling rights, it can. But why stop at $10 million? If it costs $100 million to shout down the opposition, the court says that is fine. If if costs $1 billion, that's fine, too.

And what of the opposition. Can groups that represent the public interest push back? Can labor unions take a stand in favor of taxing corporations like Exxon Mobil?

If it costs $100 million to shout down the opposition, the court says that is fine. If if costs $1 billion, that's fine, too.

Not with the same freedom or flexibility that they had from the 1930s until this year. Last Thursday, the court erected elaborate new barriers to participation in elections by public-sector unions -- requiring that they get affirmative approval from members before making special dues assessments to fund campaigns countering corporations.

How might it work? If Wal-Mart wanted to support candidates who promised to eliminate all taxes for Wal-Mart, the corporation could spend unlimited amounts of money. It would not need to gain stockholder approval. It can just go for it.
But if AFSCME wants to counter Wal-Mart argument, saying that eliminating taxes on out-of-state retailers will save consumers very little but will ultimate undermine funding for schools and public services, the union will have to go through the laborious process of gaining permission from tens of thousands, perhaps hundreds of thousands of members. And, even then, it will face additional reporting and structural barriers imposed by the court.

Campaign finance reformers had held out some hope that states might be able to apply some restrictions on corporate spending, as Montana did with its one-hundred year old law barring direct corporate contributions to political parties and candidates. That law, developed to control against the outright buying of elections by "copper kings" and "robber barons," was repeatedly upheld. Until now.

Now, says Marc Elias, one of the nation's top experts in election law,“To the extent that there was any doubt from the original Citizens United decision broadly applies to state and local laws, that doubt is now gone,” said Marc Elias, a Democratic campaign lawyer. “To whatever extent that door was open a crack, that door is now closed.”

There may still be a few legislative avenues left for countering the "money power" of the new "copper kings" and "robber barons." But they are rapidly being closed off by a partisan high court majority.

That's why U.S. Senator Bernie Sanders, the Vermont independent who has emerged as a leading proponent of moves to amend the U.S. Constitution to restore the rule of law in elections, says: “The U.S. Supreme Court’s absurd 5-4 ruling two years ago in Citizens United was a major blow to American democratic traditions. Sadly, despite all of the evidence that Americans see every day, the court continues to believe that its decision makes sense."

When billionaires can "spend hundreds of millions of dollars to buy this election for candidates who support the super-wealthy," argues Sanders, "this is not democracy. This is plutocracy. And that is why we must overturn Citizens United if we are serious about maintaining the foundations of American democracy.
Sanders says he will step up his efforts to enact a  constitutional amendment to overturn not just the Citizens United ruling but the democratically disastrous rulings that extend from it.

“In his famous speech at Gettysburg during the Civil War, Abraham Lincoln talked about America as a country ‘of the people, by the people and for the people.’ Today, as a result of the Supreme Court’s refusal to reconsider its decision in Citizens United, we are rapidly moving toward a nation of the super-rich, by the super-rich and for the super-rich," explains Sanders. "That is not what America is supposed to be about. This Supreme Court decision must be overturned.”

© 2012 The Nation

 

John Nichols is Washington correspondent for The Nation and associate editor of The Capital Times in Madison, Wisconsin. His most recent book is The “S” Word: A Short History of an American Tradition. A co-founder of the media reform organization Free Press, Nichols is co-author with Robert W. McChesney of The Death and Life of American Journalism: The Media Revolution that Will Begin the World Again and Tragedy & Farce: How the American Media Sell Wars, Spin Elections, and Destroy Democracy. Nichols' other books include: Dick: The Man Who is President and The Genius of Impeachment: The Founders' Cure for Royalism.

Supreme Corporate Psychopathy

Siivola.org

CORPORATE PSYCHOPATHY

Montague Ullman, M, D.

In psychiatry there is a diagnostic entity variously known as psychopath, sociopath and antisocial personality disorder. The central feature of this disorder is the failure to develop any ethical standards of social behavior, The concept of "do unto others as you would have them do unto you" is foreign to the psychopath. That remarkable advice is replaced by "do unto others as it pleases you regardless of consequences." We do not know for sure the cause of such behavior, whether it is genetic in origin, the result of early developmental trauma, or a combination of the two. The outstanding feature is that the psychopath has a natural talent for using and exploiting others and does so with such skill that true motives remain concealed by ingratiating ways and apparent normality. At some point the bubble bursts and the victim awakens to the reality that they have been taken.

In a democratic society government is supposed to serve the needs of every member of that society. There are two models for such societies, Both involve capitalism. The social democratic societies, such as in Scandinavia, temper the profit motive so as to restrict the massive inequities and ensure that health, education, security and opportunity is available to all. They do this by a system of taxation that succeeds in narrowing the gap between the haves and the have-nots so that a significant proportion of the population is not in trouble.

In the United States where capitalism is given a much freer rein there is the possibility of the profit motive getting so out of hand that those on top are enriched at the expense of those left behind, That is "wild capitalism". The recent run of failures of formerly very profitable corporations are a prime example of that, and how painful it is for those who are ultimately victimized by it. Victimhood is the characteristic feature of psychopathy.

A corporation has been endowed with personhood by the Supreme Court. It is not a person but it is run by persons. If the ethical standards of those at the top fail to maintain a certain level of social responsibility, the result is the insidious onset of corporate psychopathic behavior. A few get very rich and the others wake up one day to find themselves abandoned by the institution they trusted. We now have to take into account the corporation as a psychopathic entity outfitting all prior attempts on the part of governmental regulating agencies to control its behavior. A reactionary government succumbing to corporate power colludes in this happening by weakening regulatory controls, In his book "The Corporation", Joel Bakan offers a thorough account of corporate psychopathy,

The damage in human terms resulting from psychopathic behavior, individual or corporate, leaves a destructive trail behind. The individual psychopath contaminates whatever circle he moves in. Corporate psychopathy contaminates the government which is responsible for setting certain ethical limits to corporate behavior. Excessive lobbying and financial largesse influences those who make the laws and those who have the responsibility for executing the laws.

The title of Hervey Cleckley's classic volume, "The Mask of Sanity," says it all. The psychopath is someone who seems comfortable with himself and his surroundings, often of superior intelligence, capable of turning on the charm said generally creating a positive impression. The problem is it's all fake. There is no genuine empathy, no sense of responsibility or concern for anyone but himself. We are no witnessing large scale corporate and political corruption being unmasked. Money churned out by corporate psychopathy has influenced legislative and executive functions to the point where the former has surrendered its unique power to declare war and the latter to begin a war based on falsehoods fed to the American public.

The analogy between the individual psychopath and the corporation behaving as a psychopathic entity is limited but frighteningly meaningful. I will discuss the analogy to the extent to which it conforms to the current diagnostic criteria of the American Psychiatric Association as noted in the Diagnostic and Statistical Manual (DSM-IV, 1994). The term psychopathy has been replaced by Antisocial Personality Disorder. The criteria will be noted in their relevance to the notion of corporate psychopathy.

The listing of the criteria is preceded by the following statement.

There is a pervasive pattern of disregard for and violation of the rights of others occurring since the age of 15 years as indicated by three or more of the following: (criteria)

Comment: This, of course, does not literally apply to a corporation. Corporations do have a beginning with the incorporation followed by a growth period which then leads to a successful or unsuccessful maturity. The temptation to skirt the law may occur at any time. Early indications involve looking for loopholes in the law, setting up phoney offshore subsidiaries and courting political power to ease regulatory restrictions.

The Diagnostic Criteria

1.         failure to conform to social norms with regard to lawful behavior as indicated by repeatedly performing acts that are grounds for arrest.

Comment: This is true for some psychopaths but not all. Many of them manage to live a long and parasitic life, never see a day in prison and die quietly of old age. Corrupt corporations reach positions of great power and they do this by going beyond social norms. They seek out loopholes in the law, incorporate offshore, curry favor with politicians, manipulate stock shares and engage in illegal accounting practices. In their drive for power and profit they pursue a path where when caught, those at the top still walk away with fabulous sums while the workers and the shareholders are left holding a very empty bag.

2.         deceitfulness as indicated by repeated lying, use of aliases or conning others for personal profit or pleasure.

Comment : Conning others speaks to the heart of psychopathy. Lying consciously or unconsciously is the instrument by means of which a psychopath establishes a beachhead with his prey. It comes packaged in various ways - charm, wit, good looks and cunning. His individual goal is money, love or power. Corrupt corporations are out for money and power and maneuver the agencies of government in pursuit of their goals. Love is an irrelevant emotion as this plays out.

3.         impulsivity or failure to plan ahead

Comment: The Iraq War is a case in point when corporate psychopathy influences the political structure.

4.         irritability and aggressiveness as indicated in repeated physical fights or assaults

Comment: This is characteristic of psychopaths who pursue a career in crime. There is aggression and fighting in the world of corporate psychopathy but this is acted out in the court to save or expand one's own turf.

5.         reckless disregard for safety of self or others

Comment: Again the relevance of corporate psychopathy to the political structure has played a role in the Iraq war, a war that has resulted in the loss of thousands of lives.

6.         reckless disregard for safety of self or others consistent with irresponsibility as indicated by repeated failure to sustain consistent work behavior or honor financial obligations

Comment: When the word safety is used here in a more general sense, e.g. financial security, it is relevant to corporate psychopathy. Once greed takes over honesty goes out the window. Accounting becomes cover-up. Stock maneuvering enriches the executives at the expense of the workers and shareholders. When corrupt companies fail, workers lose.

7.         lack of remorse as indicated by being indifferent to or rationalizing having hurt, mistreated or stolen from another

Comment: The lack of genuine remorse is another basic feature of psychopathy. The corporation as an entity cannot feel remorse but the people who run it can, at least to some extent, in their personal lives and on rare occasions when the law catches up with them and confronts them with the tragic consequences of their actions. The fact that a corporation may have taken a psychopathic course does not mean that the individuals responsible are psychopaths, although there may be an occasional one among them. They are, however, in an emotionally compromising and awkward place. On the one hand, they have participated in the creation of a psychopathic entity that wreaks havoc on people and the environment. On the other hand, at home in their private lives they are no different than the rest of us except for their high lifestyle. The only residue of psychopathy in their personal lives is their enjoyment of ill-gotten gains. A more stark example of this is the emotional compartmentalization of the concentration camp guard who is very much the psychopath at his job and the family man at his home.

I have briefly sketched the extent to which the concept of corporate psychopathy fits into the current diagnostic criteria of anti-social personality. The diagnosis rests on meeting at least three of the criteria. I have developed the correspondence based on meeting six of the seven (1,2,3,5,6,7). The concept of corporate psychopathy fits snugly into these six.

The criteria as noted in the manual do not go far enough in capturing the essence of psychopathy, As R.D. Hare and others have pointed out, they are attuned to a certain segment of the criminal population and do not sufficiently emphasize the personality traits of the psychopath, traits which enable them to pursue a psychopathic way of` life quite well within the accepted bounds of society.

It is often the case that psychopaths are gifted with a natural talent for ingratiating themselves. They walk among us wearing "the Mask of Sanity". Impervious to genuine feeling, lacking in empathy they manage to get what they want from others and tragically on occasion manipulate an entire nation.

They are to be found at every level of the social strata including the professions, the business world and most unfortunately the political world as well, Corporate psychopathy is a plague that wreaks havoc on people, on the environment and on the moral status of the nation that tolerates it. Unlike genuine infectious disorders, a chronic phase precedes the acute one. It extends over the period when the corporation reaps extravagantly large profits. The acute phase is ushered in when the financial maneuverings can no longer keep the corporation afloat. It ends up in a trip to the morgue leaving precious little to salvage.

Corrupt corporations feed on money and power, The former comes in part from the U.S. Treasury and ultimately from the general public. To maintain this flow they seek power. The government is where the power is. Individual psychopaths rely on their personality and manipulativeness to get what they need from another person. Psychopathic corporations face a more complex task. They have to influence all three branches of our government, the legislative, the judiciary and the executive, to go along with survival tactics motivated by greed rather than the welfare of the public. Corporations have been in business a long time and have succeeded admirably. We have created a new generation of robber barons but this time they are playing for much higher stakes. The pathological fallout is no longer limited to our own borders. Their reach extends globally, involving us politically, environmentally and militarily with countries rich and poor. Illness knows no geographical limits.

The Legislative Branch

The members of the Congress are prime targets for corporate bribery. Lobbying is one thing. Lobbying backed by generous financial contributions is another. Recent legislation, for example, designed to lower the cost of drugs does more to insure the continuing huge profits of the drug companies. To restrain corporate greed it would have been better to control drug prices than to leave many with the choice between feeding a family or buying needed drugs. Pharmaceutical companies do not only bribe legislators, they also find ways that amount to bribery to influence the physician's choice of drugs.

Legislators are also pressured to favor corporate power over the protection of the environment. We have failed to come to terms with global warming under pressure from the coal and oil industry. Our public lands, long a treasured heritage, are under siege by oil and gas interests, as are our forests by the lumber industry. Added to this is the need for more effective monitoring of the industrial pollution of air and water.

The Judiciary

Individual psychopaths are small-time pickpockets compared to the huge sums of money that corrupt corporations manage to remove from the pockets of each of us. The ultimate victim is the public at large. We buy what they are selling. The individual psychopath when he is caught in a criminal act goes to jail. The criminal corporation goes to court, and until recently most often civil court rather than criminal court. In the case of the former, fines are levied which may or may not have the desired effect (there are recidivists). Criminal offenders receive sentences not commensurate with the damage they have done. The complex nature of corporate crime makes it more difficult to litigate. Lower level officials are often the ones that are scapegoats. Finally, there are insufficient prosecutory resources to thoroughly handle every referral.

Individual psychopaths are untreatable. Nor do we know much about the prevention. The prognosis is not quite as bad in the case or corporate psychopathy. Some are so mortally wounded that sudden death occurs. For some a radical overhaul may be a successful treatment. Jail is simply an isolation word to temporarily prevent the illness from spreading. Prevention is the only approach to a cure. We know the causative virus is greed. An effective serum awaits the day when we succeed (if ever) in separating money from politics. We face the choice of closing our eyes to the very infectious nature of the virus and the plague it has produced, or radically rooting it out by seriously investing our resources in manufacturing that serum.

The government as it is now functioning is not in a position to prepare the services necessary to immunize the public. Each of us is faced with the task of creating our own antibodies by getting closer to an awareness of the extent to which we have been infected and do what is necessary to usher in wiser leaders,

The Executive Branch

We are profoundly ignorant of the etiology and prevention of psychopathy in the individual. This is not so in the case of corporate psychopathy. Deregulation, the money trail to power, and our materialistic concentration all pave the way to unmitigated greed. Legal penalties retard or stop the illness in individual cases of corporate psychopathy but do not get at the root of the problem. In the light of the legislative failure at prevention, our only hope resides in an executive branch that has insight into the scope and nature of the illness and the way both government and our lifestyle has contributed to its existence, Of the three branches of government, the executive can be the most important in initiating a program of prevention. The world knows the price that society has paid for leaders that are poseurs or "strong men". Finding the proper leader who could initiate a genuine effort at prevention is a daunting one. We need a leader who has the courage to look into a magic mirror that reveals all the ways these malignant organisms have worked their way into the avenues of government and into the lives of the citizenry it is there to protect. He or she would have to have the foresight and vision of our Founding Fathers, the honesty of Abe Lincoln and the capacity of a war president like F.D.F in keeping the country united instead of splitting it into two hostile factions.

Although the virus responsible for corporate psychopathy has been endemic at least since Theodore Roosevelt's time, it has now risen to epidemic proportions. We are dealing with a virus that ravages people and the environment and has caused a palpable degree of moral fallout. Robert Hare, in his book, Without Conscience, refers to this latter change as resulting in a "camouflage society." He cites the role of corporate power as fostering a cultural atmosphere "where egocentricity, lack of concern for others, superficiality, style over substance, being cool, manipulativeness and so forth are tolerated and even valued. Even more important is the reality that the ullman* linkage of corporate psychopathy to political power is a recipe for totalitarianism.

Our country is more divided along party lines than it has been in a long time. If we, the people, can come together in the recognition of this deepening illness in our midst, we can more effectively strive to eliminate it. Instead of a politically divided Supreme Court, we are in need of a Mayo Clinic of last resort. After all, doctors don't work along party lines in their efforts at healing.

Supreme Court Upholds Citizens United; Tightens Corporate Stranglehold on Campaign Finance

Published on Monday, June 25, 2012 by Common Dreams

Supreme Court Upholds Citizens United; Tightens Corporate Stranglehold on Campaign Finance

In 5-4 decision, court strikes down Montana ban on corporate donation law, strengthening Citizens United

- Common Dreams staff 

 

In a 5-4 decision, the US Supreme Court has struck down (pdf) Montana's 100 year old law that banned direct corporate political campaign spending in state and local elections. The court reversed a lower court ruling, but did so without allowing full briefing or argument in the case.



Previously, the Montana Supreme Court upheld the law due to the state’s dramatic history of corruption, but the Supreme Court's ruling today rejected that decision, arguing that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Critics, however, say all available evidence -- especially in the aftermath of the 2010 Citizens United decision -- suggests such arguments are absurd and say today's decision only strengthens the role of corporate money and independent wealth while weakening the ability of lawmakers and citizens who might try to temper the amount of corporate money that is now flooding into state-level campaigns.

In a dissent, Justice Stephen Breyer -- who was joined by Justice Ruth Ginsburg in a desire that the high court hear the case --  wrote that "Montana's experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubts on the Court’s supposition that independent expenditures do not corrupt or appear to do so."

Critics of the ruling were quick to react to the court's decision.

“The Court’s arrogant move – refusing to even grant a hearing on a Montana law that has served the state well for a century – underscores the need for quick action on a constitutional amendment to overturn Citizens United and allow sensible restrictions on political spending,” said Common Cause President Bob Edgar.

“Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.” -- Justice Steven Breyer

“The Court’s majority has once again chosen ideology over common sense and left American voters defenseless against the forced sale of our elections to big corporations and billionaires,” Edgar added. 

US Senator Bernie Sanders (I-VT), also weighed in, arguing the ruling offered further evidence that the US has become a 'plutocracy'; blasting the court's announcement today and their original ruling in 2010.

"The U.S. Supreme Court's absurd 5-4 ruling two years ago in Citizens United was a major blow to American democratic traditions," said Sanders. "Sadly, despite all of the evidence that Americans see every day, the court continues to believe that its decision makes sense"

"I intend to work as hard as I can for a constitutional amendment to overturn this disastrous Supreme Court decision," he added. To see Sanders' proposed constitutional amendment, click here.

“The 2012 elections make one thing clear: unlimited spending by super PACs and secretive nonprofits is corrupting our political process and threatens to swamp our democracy,” said Adam Skaggs, senior counsel in the Brennan Center’s Democracy Program. “Increasing numbers of Americans believe our government is bought and paid for by special interests and that their votes don’t matter. By not taking this case, the Court missed a critical opportunity to rein in some of the worst excesses of Citizens United, and other rulings, that created this super PAC mess.”

"Citizens and the nation are not going to accept the Supreme Court-imposed campaign finance system that allows our government to be auctioned off to billionaires, millionaires, corporate funders and other special interests using political money to buy influence and results," Fred Wertheimer, president of Democracy 21, told the Los Angeles Times. "A major national campaign finance reform movement will begin immediately after the 2012 elections."

#  #  #

Happening Now: Common Dreams’ Live Cover

Is the Corporate Personhood Reform Movement Doomed to Fail in Washington?

AlterNet.org

 

AlterNet / By Steven Rosenfeld

Is the Corporate Personhood Reform Movement Doomed to Fail in Washington?

Imprecise messages and imperfect messengers converge as Washington looks to solve the Citizens United mess.

May 22, 2012  |  

The highest-profile tactic of the corporate personhood movement—calling on Congress to send a constitutional amendment to the states that does not just reverse the Supreme Court’s Citizens United decision but declares that corporations do not have the same rights as natural persons under the Constitution—may be doomed in Washington.

Across the country, hundreds of local and state governments have sent resolutions to Congress that combine the movement’s twin demands—that Congress take back power from the Supreme Court to regulate campaign finances and that it strip corporations of legal privileges in elections and society at large. Washington lawmakers are taking the issue seriously.

On Sunday, House Minority Leader Nancy Pelosi again said that Citizens United has to be reversed. The Senate Judiciary Committee announced it would hold hearings on the amendment proposals. And the Supreme Court is slated to decide in coming weeks if it will use a Montana case that flatly rejected key Citizens United holdings to revisit those issues.

But as official Washington gears up to confront the issue of campaign finance abuses, which include corporate constitutional rights under the First Amendment, the corporate personhood movement is heading into round one of this long fight with somewhat weak hands. It has an imprecise message and imperfect messenger in the Senate. It has liberal critics who say the focus on stripping corporate rights is a dangerous distraction. And it faces facts from the 2012 campaign that are not buttressing its case—because it has so far been wealthy individuals, not corporations, that have invested the biggest bucks in this cycle.

“This is more than just an intellectual spat between lawyers,” wrote Kent Greenfield, a liberal Boston College Law School professor who is not impressed with the corporate personhood campaign. “If progressives are split, the benefactors of corporate money will have an easy job obstructing any meaningful reform. If progressives can agree on a remedial strategy, we might have a shot at getting something done.”

Imprecise Message, Imperfect Messenger

Right now, progressives are split. And the differences and difficulties go deeper than who is taking the most purist—or intellectually consistent—approach on corporate constitutional rights.

The most visible split, which is the first fork in the road where the corporate personhood movement may be left in the dust, concerns its focus. Most of the lawmakers who have proposed constitutional amendments—and many of the largest cities sending resolutions calling for action, like New York and Los Angeles—don’t want to address personhood issues at all. They want Congress to assert its authority to regulate campaign finances, rolling back nearly four decades of Supreme Court decisions that have created many democracy-defeating loopholes around campaign donations, spending and disclosure. That perspective and legislative empowerment approach is embodied in the Senate resolution with the most co-sponsors, from Sen. Tom Udall, D-New Mexico. 

The Senate proposal that raises the corporate personhood issue is a resolution introduced by Vermont’s Bernie Sanders (there is a companion bill in the House sponsored by Rep. Ted. Deutch, D-FL). Sanders’ resolution has the legislative empowerment piece, but also would strip corporations of their constitutional rights while exempting non-profits and unions. (All the bills, Sanders' included, have exceptions for media and freedom of the press, as that is specifically conferred in the First Amendment.) In contrast, there is a House bill from Rep. Jim McGovern, D-MA, which strips corporate constitutional rights without any exceptions for unions or non-profits.

What’s the problem with the Sanders bill—which has been championed by the public-interest group Public Citizen? Anybody who knows Bernie knows that he has attacked corporations and defended unions for his entire career. That is fine, but championing a bill that protects his allies and campaign contributors does not generate much political credibility.

“For this amendment movement to be successful, it has to be trans-partisan and reach across the political spectrum and not appear that it is a political strategy for one side,” said John Bonifaz, co-founder of FreeSpeechForPeople.com, which support McGovern’s proposal. “When we start creating these carve-outs, we open ourselves to the claim that what we are really about is not trying to get the message enacted, but using this as a campaign issue and one that plays well with a certain base against another.”

Then, going deeper, there are intellectual and legal problems with Sanders' proposal that are not going to help the corporate personhood movement present its strongest argument. To Sanders’ credit, his bill acknowledges that there are different kinds of corporations that deserve different treatment under the Constitution. But the proposal, which is likely to be the only one addressing corporate personhood at the Judiciary Committee hearings, has a very big loophole that can easily be attacked as hypocritical.

It would do nothing to rein in the conservative advocacy group Citizens United, which employed the strategy of organizing itself as a non-profit and then viciously attacked Hillary Clinton in 2008, because, under Sanders' bill, all non-profits are exempted. In other words, in addition to carving out exceptions for his longtime allies and donors, his proposal would not touch the loophole that launched the Supreme Court case that everyone is trying fix. Thus, an imperfect message and imperfect messenger appears poised to present the movement’s opening appearance before a Senate committee that can draft constitutional remedies.

“I don’t think they are trying to get an amendment enacted,” said a longtime democracy advocate who did not want his name used because the world of liberal reformers is very small. “I think they are using this as a vehicle to build a progressive style movement to get Democrats riled up against Republicans.”

That may be true. It would explain why the authors of various amendment proposals have ducked reporters’ questions about reconciling the legislative empowerment bills and the corporate rights-stripping bills at two Washington forums on the movement and Citizens United—one by People for the American Way and another by Public Citizen. The reply at both events was that they are building a movement now and will work out differences later. 

But pushing cynical interpretations aside, there is a deeper challenge the corporate personhood movement must overcome if it is to have any traction beyond raising hopes at the grassroots—and then leaving those hopes dashed, like Obama’s overpromises from the 2008 campaign.

Words Matter

The Achilles heel of Bernie Sanders’ bill—that it would leave intact the loophole that unleashed the Supreme Court’s Citizens United ruling—presents a legal difficulty that corporate personhood campaigners have to address if their efforts stands any chance of impacting the law.

The law does not operate as a one-way street. Federal judges cite the same amendments and legal rights to uphold the good guys as they do to defend the bad guys. That the exception in the Bernie Sanders bill intended to defend non-profits groups and unions that work for individuals also exempts right-wingers who abuse the non-profit status is a perfect example of why it is so hard to translate slogans—such as “corporations are not people”—into effective law.

There has been a small but provocative debate online between liberal lawyers who say, on one hand, that the corporate personhood focus is a blurry fantasy and demagogue’s distraction, and those who forcefully disagree. On the distraction side, the argument essentially comes down to several bottom-line points: that not all corporations are bad; that not all corporate constitutional rights (such as those associated with protection from government intrusion and seizing property) are bad; and that if corporate personhood campaigners identified where the biggest corporate abuses originate, they would find that they are not in corporations having constitutional rights—particularly outside First Amendment political and commercial speech.

Needless to say, corporate personhood campaigners reject this analysis, starting with the bottom-line critique that the corporate form has been used to help people beyond what they can accomplish as individuals.

“We can’t get sidetracked by some false claim that corporate rights are necessary to protect individual rights,” Bonifaz said. “If there are individuals that are harmed, they have individual rights. The government has ultimate control over corporations. That is the point here. We govern corporations, not the other way around.”

Constitutional law is complex because it is filled with questions that can be argued both ways. Right-wing think tanks on behalf of multinational corporations now cite the same corporate rights that helped defend the NAACP against racists. Reformers need to get past this hurdle if they are not going to be left behind in what’s becoming a growing Washington bandwagon to address the campaign finance loopholes epitomized by the Citizens United decision. 

The Bernie bill hinted at how the movement has to do that by identifying whose rights are and are not to be protected. But it has to get far more specific in pinpointing the corporate abuses and constitutional remedies if it wants a seat at the table as the discussion in Washington progresses. In fact, this level of specificity is exactly what is occurring now at the Supreme Court where a handful of liberal lawyers are urging it to use a Montana case to revisit the most controversial issues in Citizens United.

A Way Forward

In recent weeks, various individuals and activist groups have been filing briefs to encourage the Court not to summarily reverse Montana’s state Supreme Court ruling that upheld its 100-year-old ban on corporate political activities—saying the state had compelling reasons, the highest standard in law, to not follow the Citizens United precedent.  

Last week pressure on the Court went up quite a bit when senators John McCain, the Arizona Republican, and Sheldon Whitehouse, a Rhode Island Democrat, filed a brief saying the Supreme Court majority ignored the facts compiled by Congress when it issued the Citizens United decision, and its assumptions and holdings were wrong. “The campaign finance system assumed by Citizens United is no longer a reality, if it ever was,” the senators’ brief concluded.

But more helpful to the personhood movement are two briefs submitted by liberals that discuss corporate personhood issues with a specificity that has been lacking in the debate so far. A brief by Free Speech for People and several progressive business groups lays out the history of prior Supreme Court rulings that have limited corporate constitutional rights under various amendments, including the First Amendment. It suggests there is a long legal history of limiting corporate rights, including in elections, and the Court should use the Montana case to review that lineage.

The most surprising and instructive brief, however, is by Burt Neuborne on behalf of former litigation staffers at the American Civil Liberties Union. It was not written on behalf of either party but instead argued why the Court should reopen the case.

These former ACLU lawyers, who spent the earlier part of their careers arguing that all political speech should be deregulated and have since changed their minds, shrewdly point out past decisions where Justice Anthony Kennedy, the Court’s swing vote and Citizens United author, had said that different kinds of corporations were entitled to different First Amendment rights. Neuborne, of course, is trying to back Kennedy down from the fundamentalist stance about corporate speech he took in Citizens United.

But there is a lesson in his brief that corporate personhood campaigners would be smart to heed—even if it means they have to back down from their fundamentalist stances. Neuborne identifies where different kinds of corporate constitutional rights have been upheld by the court—and have not—and identifies the common thread and principle that he says the court abandoned in Citizens United: that corporations only gain constitutional rights if they magnify the interests of individuals, “the corporation’s human constituents.” He argues that “multi-shareholder business corporations” do not meet that standard in elections.

To suggest that there are different kinds of corporations, entitled to different kinds of constitutional rights, might be a heresy to grassroots campaigners who are calling for Citizens United to be overturned and for corporations to lose their rights. But unless these reformers start speaking with this level of specificity, their proposals are not likely to be taken seriously—or even get a hearing in Washington. They need to say when and where specific corporate forms are abusing constitutional rights, and harming individuals and the political process—or argue where specific corporate rights should stand. To be fair, some people are doing that. But most of the frontline activists, television and radio hosts—and supporters in Congress—are not.

The good news is that momentum is building to address the electoral abuses unleashed by Citizens United. Now we need to get into the nitty-gritty of doing just that.

Steven Rosenfeld covers democracy issues for AlterNet and is the author of "Count My Vote: A Citizen's Guide to Voting" (AlterNet Books, 2008).

TPP brings benefits to corps instead of citizens

TPP brings benefits to corps instead of citizens

Global Times | November 27, 2011 17:59 By Travis McArthur and Todd Tucker

Now that the high-profile Asia-Pacific Economic Cooperation summit in Honolulu has pushed the Trans -Pacific Partnership Agreement (TPP) to the forefront of trade policy discussions, a close examination of its likely consequences is in order.

Though the Trans-Pacific deal has been described as a "trade" agreement, at its heart it is not about the flow of goods between countries or tariff reduction. In reality, the deal is a way to hand more power to multinational corporations at the expense of the rights of citizens and governments.

For example, this month TPP negotiators announced that the agreement would allow foreign corporations to sue national and sub-national governments for compensation if government action infringes upon corporations' expected profits. Under similar provisions in previous trade deals, multinational corporations have used foreign tribunals to attack health and environmental policy, zoning and permitting issues, toxics regulation, court rulings, and more.

This extraordinary investor protection mechanism is just one way that the TPP will handcuff governments and enhance the profits of corporations. Recently, a draft of the US proposal for medicines and medical devices was leaked from the secret trade talks.

The proposal would lead to higher medicine prices and less access to healthcare for ordinary people along the Pacific Rim though inappropriate patent enforcement and the prohibition of government-sponsored measures hold down prices. It envisions the elimination of safeguards against patent abuse and would grant additional exclusive controls over clinical trial data and favor the giant pharmaceutical corporations' monopoly interests at every stage.

Some observers have hypothesized that the TPP is a way for the US government to consolidate its power in the Pacific Rim and lock China out of economic opportunities. Their analysis is incomplete. The completion of the deal will not shift power between governments, but rather will transfer power from governments and citizens to multinational corporations, who know no national loyalty.

From the beginning, the nascent Trans-Pacific trade deal has sought to chip away at the global resistance to the corporate economic model. In its first term, the George W. Bush administration confronted fairly unified developing country opposition to their proposals to utilize the WTO and Free Trade Area of the Americas to greatly expand the corporate agenda. They authored a trade policy approach called "competitive liberalization." The strategy was to seek out a "coalition of the willing" to sign bilateral trade agreements in order to isolate countries like Brazil, Russia, China, and India that were opposing these other initiatives.

Though he pledged to oppose the Bush trade policy when he was a presidential candidate, Obama is now pushing the TPP. This deal is in part an effort to put pressure on countries throughout the Pacific Rim to eschew national development policies and regionalism among countries of similar development.

Despite efforts to conceal the true nature of the TPP, the corporate power grab embodied by the deal has not gone unnoticed. Opposition to these types of trade deals has been widespread in the Trans-Pacific countries. For instance, indigenous groups in Peru succeeded in blocking the worst of the implementation of the US-Peru trade deal when they blockaded highways for weeks in 2009. Australia stood firm when corporations tried to slip more investor rights into the US-Australia deal. Most recently, tens of thousands of Japanese farmers have marched against Japan joining the Trans-Pacific talks.

This fervor of citizen opposition to corporate trade deals shows that implementation of TPP would go against the interests of popular majorities in all countries involved. The US and all Pacific nations should instead seek a high road trade strategy to ensure the development of all of our countries.

The article was compiled by Global Times reporter Wang Wenwen, based on an interview with Travis McArthur and Todd Tucker, researchers with Public Citizen's Global Trade Watch, a division of the US-based advocacy group Public Citizen that monitors the WTO and other trade agreements. wangwenwen@globaltimes.com.cn

TPP: Trans-Pacific Partnership Subs Nations To Corporations

JUNE 15, 2012 9:57AM

TPP: Trans-Pacific Partnership Subs Nations To Corporations 

Negotiated in secret but now exposed as a "corporate power tool of the 1%", TPP grants powers to corporations that supersede all laws and rights of citizens.
 
TPP FTA (TPPA): TRANS-PACIFIC PARTNERSHIP FREE TRADE AGREEMENT SUBORDINATES NATIONS (AND PEOPLE) TO CORPORATIONS
 
"The Trans-Pacific Partnership 'free trade' agreement [TPP/TPPA] is a stealthy policy being pressed by corporate America, a dream of the 1 percent, [and a realization of George Bush Sr.'s vision of a "New World Order"] that in one blow could: offshore millions of American jobs, free the banksters from oversight, ban 'Buy America' policies needed to create green jobs and rebuild our economy, decrease access to medicine, flood the U.S. with unsafe food and products, and empower corporations to attack our environmental and health safeguards."

http://tinyurl.com/d78sm9n
 
"Under the agreement currently being advocated by the Obama administration, American corporations would continue to be subject to domestic laws and regulations on the environment, banking and other issues. But foreign corporations operating within the U.S. [including foreign subsidiaries of domestic corporations] would be permitted to appeal key American legal or regulatory rulings to an international tribunal. That international tribunal would be granted the power to overrule American law and impose trade sanctions on the United States for failing to abide by its rulings. The terms run contrary to campaign promises issued by Obama and the Democratic Party during the 2008 campaign."

http://tinyurl.com/cdpa7ay
 
"A leaked draft of the Trans-Pacific Partnership (TPP) investment chapter has been published online by Citizens Trade Campaign, the same coalition that first published TPP proposals from the United States on intellectual property, regulatory coherence and drug formularies in late 2011. Draft texts are said to exist for some 26 separate chapters, none of which have ever been officially released by trade negotiators for public review."

http://tinyurl.com/br42znp
 
"Despite the White House's efforts to keep [the] proposed free trade agreement concealed from the public - and even Congress - an excerpt from the TPP leaked Wednesday [6/13/2012] reveals that President Obama is prepared to bow to multinational corporations... According to the leaked excerpt, the Obama administration has been considering TPP provisions that would allow foreign corporations operating within the United States to appeal regulations on the environment and banking that would be forced on American-owned businesses with no chance of reprieve. While the United States could be sanctioned for failing to impose regulations on American-run businesses, multinational corporations are practically encouraged to do as much because the TPP outlines a clear avenue to file an appeal. If one of the eight Pacific nations chooses to do as much, their plea would be heard by an international tribunal that could overrule US law."

http://tinyurl.com/c3ghukc
 
"Trade officials from the U.S. and eight Pacific Rim nations - Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, and Vietnam - are in intensive, closed door negotiations to sign [the] Trans-Pacific Partnership (TPP) 'Free Trade' Agreement by summer 2012. Every Pacific Rim nation from China and Russia to Indonesia and Mexico could eventually be included. There are draft texts for [the pact's 26] chapters, most of which have nothing to do with trade, but rather impose limits on domestic food safety, health, environmental, and other policies. The governments won't release the texts to the public. But 600 U.S. corporate 'trade advisors' have full access."

http://tinyurl.com/bss3zf7
 
"Although the TPP has been branded a 'trade' agreement, the leaked text of the pact's Investment Chapter shows that the TPP would:

- limit how U.S. federal and state officials could regulate foreign firms operating within U.S. boundaries, with requirements to provide them greater rights than domestic firms;

- extend the incentives for U.S. firms to offshore investment and jobs to lower-wage countries;

- establish a two-track legal system that gives foreign firms new rights to skirt U.S. courts and laws, directly sue the U.S. government before foreign tribunals and demand compensation for financial, health, environmental, land use and other laws they claim undermine their TPP privileges; and

- allow foreign firms to demand compensation for the costs of complying with U.S. financial or environmental regulations that apply equally to domestic and foreign firms."

http://tinyurl.com/c27hvre
Public Interest Analysis of the Leaked Trans-Pacific Partnership (TPP) Investment Text:
http://tinyurl.com/cqvszj8
The Actual Leaked Text - Trans-Pacific Partnership (TPP) Free Trade Agreement (FTA):
http://tinyurl.com/7lgadrg
 
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WHAT CAN YOU DO TO STOP TPP/TPPA, THE RISE OF CORPORATE FASCISM AND THE FALL OF DEMOCRACY?
 
I. Call to Action on the Trans-Pacific Partnership Agreement (San Diego CA 7/2-10/2012):

http://tinyurl.com/7cg3dwr
http://www.ustr.gov/tpp
 
II. Citizen.org [mis]advises this...

A. "Contact your Senators, Representatives, and state legislators: ask them to demand release of the secret negotiating texts and stop the TPP corporate power tool agenda that slams us 99 percenters."
B. "Write Pres. Obama: tell him that you loved his State of the Union focus on American manufacturing, but that his blue-print will be destroyed unless he gets his trade negotiators on a new track on TPP. We cannot afford another job-killing, unsafe-import-flooding, democracy-crushing NAFTA-style trade deal."
...which we correct with this:

C. Re "A" and "B" above, keep in mind that the people you are appealing to are the corporate puppets and guilty parties responsible for the very wrongs you are trying to right, so don't expect such impotent slacktivism to change anything.
D. The problem is not Obama and the Democrats. The solution is not Romney and the Republicans. The problem is all of the corporate-controlled Democratic AND Republican politicians - including Obama AND Romney. The solution is REVOLUTION.

E. Thomas Jefferson said "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." It's that time again...
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NO MORE LEFT. NO MORE RIGHT. TIME TO UNITE. STAND AND FIGHT!
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Tag: #revolution, #tpp, #tppa, #fta, #nafta, #obama, #bush, #bushbamney, #demopublicans, #nwo, #fascism, #fascists, #kleptocracy, #occupywallst, #occupy, #ows
Key: revolution, tpp, tppa, fta, nafta, trans-pacific partnership, trans-pacific partnership agreement, take peoples' power away, free trade agreement, obama, bush, bushbamney, demopublicans, new world order, fascism, fascists, kleptocracy, occupy wall street, ows

 

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ows, occupy wall street, kleptocracy, fascists, fascism, new world order, demopublicans, bushbamney, bush, obama, free trade agreement, take peoples' power away, trans-pacific partnership agreement, trans-pacific partnership, nafta, fta, tppa, tpp, revolution