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The High Court Stokes Up the Oligarchy Express

How many lawyers does it take to dismantle the Constitution?

Would you be surprised that you need only five, with the proviso that they are old, smart and accomplished, and managed to live lives that put them on the Supreme Court.

Think about this. If you were trying to construct a new government in a perfect world, would you give effective absolute power to five lawyers — even lawyers in such a rarified position? What if the citizens were able to vote, yes or no, and whether or not they wanted to submit to a committee of five lawyers? What would the outcome be?

Our government is structured so that five men have almost absolute power in the country, since they and they alone can decide what laws conform to the Constitution. Five are, of course, a majority on the United States Supreme Court with its nine justices.

"On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials," says Justice Kennedy

As I remember it from high school, the Supreme Court is supposed to be a very cautious place that operates in the upper reaches of legal theory, carefully considering the issues in a hermetic world defined by the issues in specific cases. The idea is that these old lawyers will defend the Constitution from radical ideas that have wafted into fashion on the wings of contemporary politics but that they will be flexible enough to allow a reasonable amount of change. When political alignments and moods change, the court's behavior has on several notable occasions enraged one side or the other. Think of FDR's New Deal, partially blocked by the court in the 1930s, desegregation enabled in the 1950s, abortion rights enabled in 1970s. You see the court cuts both ways.

Compared with some of the old landmark cases, the issue in this case sounds arcane. The court took a dispute over a cheesy political ad bashing Hillary Clinton that was masquerading as a movie documentary and decided to clarify the free speech rights of corporations, which the five conservative majority justices decided were no different than the rights of a guy shouting on a soapbox at the corner, or a lonely blogger uploading an essay on the Internet in the middle of the night.

For very good reasons, Congress has written laws for 100 years restricting the free speech rights of corporations when it comes to political campaigning and lobbying because of the danger of the enormous power and money corporations can use to influence and distort politics. As far as anyone can tell, corporations have amassed a huge amount of power in politics without help from the Supreme Court. With this decision, there's no limit.

The four minority liberal justices wrote a strong dissent to the ruling. Corporations are not people, they wrote. Here is one passage in the court's legal prose:

"Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters."

Newspaper editorials were eloquent, dropping their normally careful tones. Here's a bit from the New York Times:

"The majority is deeply wrong on the law. Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money."

Right on! A corporation is obligated by law to act in the financial interests of its stockholders, while human beings operate from a tangle of mixed motives that are occasionally more lofty than financial.

The critics are accusing the conservative majority justices of politicizing the court, of advancing the cause of a plutocracy over a democracy. They argue that the justices had no good reason to expand the issues in the case and upend more law than the little nonprofit political hit squad that made the Hillary Clinton movie ever challenged.

Why did the majority do it? Was it because they were appointed to their jobs by Reagan or one of the Bushes? I think that Justice Anthony Kennedy, who wrote the majority opinion, slipped and told us why:

"On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials."

Yes, five men from the law schools of Harvard and Yale are used to knowing better. They are philosophically predisposed to suspect that some people, including corporate executives, are a little more equal than the rest of us. I wonder if the justices wondered about the future. Did they imagine that some day, the wise corporations might decide that the Supreme Court itself had become a political inconvenience? I also wonder how these five kept a straight face when they kept mentioning that this freedom for corporations to speak is also extended to labor unions. In the dim past of the 1950s and 1960s, it was common to hear big business and conservative Republicans talk of the dangers of labor's political muscle and its political action committees. But organized labor was strong then; but now that unions have been decimated, the conservatives are championing their right to speak.

In the end, it's unsatisfying to do all this whining. What next? What's to be done now? Because of the sweeping nature of the court decision, Congress cannot simply write some clarification about the rights of corporations. There is a procedure for amending the Constitution, but an Amendment, such as those that abolished slavery and gave women the right to vote, is a very difficult undertaking. And, of course, a political movement that tried to do such a thing would expect to encounter a massively financed opposition by big corporations.

In the majority opinion, Justice Kennedy also suggests the remedy in the best tradition of conservative philosophy. Quoting the Federalist papers, he writes: "Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false."

He's got a point there. Although in light of the whole decision, his lip service to democracy is hollow, the citizens do have an obligation to put some effort into the political process and to work in defense of democracy. This issue is more important than dinner table conversation where everyone hates what they are expected to hate. The excellent Times editorial seems to agree, and tries to rally "members of the public who care about fair elections" to mobilize behind new laws. The paper is sure that Obama would join them in an effort.

This is the hard part. It's hard because whether people want to hear it or not, they bear some responsibility for their fate. Whether or not federal law imposes some limitations on corporate political involvement, big business already has tremendous political muscle through lobbying. In fact, the big corporations already have so much power, no one can be sure the court's decision will make the situation worse. And the people could use a lot more help from the establishment news media, which seems to be so horrified by the decision.

The timing of the decision is exquisite. The politicians and lobbyists are in the middle of two very large issues that the corporations are extremely interested in: health care and financial regulations.

On health care, most attention is focused now on how the Massachusetts Senate election has doomed health care reform. In fact, the health care legislation was barely alive before. The voters didn't seem enthusiastic. Let me focus on two reasons why.

On financial regulation, there is a similar ambivalence. It's easy and it's fun to blame the Yuppies on Wall Street. The big investment banks are indeed the major villains. But it's true that we the people gave them all the room to maneuver as we've steadily removed regulatory restraints on the industry, Republicans and Democrats alike, since the 1970s. In the late 1980s, the public and the media had a clear demonstration of what happens when bankers have all the freedom they want. I refer to collapse of the savings and loans, which cost the nation hundreds of billions to fix up. This time, the damage runs to trillions.

And so people who would be bored to death by a discussion of banking regulations cheerfully refinanced again and again without the slightest hesitation about the unlikely event that housing prices would turn down. Now that they're stuck — or under water as the bankers like to say — they want to punish the head of the Federal Reserve for not watching out for them. If people want to improve financial regulation, I suggest that they first look up the records of their senators and representatives, and call them to account.

There's a pervasive feeling that people have a surly contempt for politics but are otherwise passive. This Supreme Court decision makes it more important than ever that people try to understand the world around them. The health care mess, the financial meltdown, they both happened when restraints were on corporate political involvement. What's next?

Posted on 23 January 2010

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© 2010 Barry Schiffman