Hey, That Horse is Still Alive!: More on Citizens United

In This Issue:

- Ralph Nader on Citizens United & What Can Be Done About It

- Polls on Citizens United and Limiting Corporate Speech

- Paul Krugman and Simon Johnson on Obama Sucking Up to Wall Street
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The Case Against Corporate Speech

By Ralph Nader and Robert Weissman

February 10, 2010 " Wall Street Journal" -- Last month, by a vote of 5 to 4, the U.S. Supreme Court gave carte blanche to the world's largest corporations to spend unlimited sums of money to support or oppose candidates for elected office. Big Business domination of Washington and state capitals will now intensify.

The case of Citizens United portends dire consequences for the nation's constitutional premise of "we the people," not we the corporations. Our constitution, at its origins and through all of its amendments, makes no mention of corporate entities, only human beings and their government.

For 120 years, it was not Congress but the Supreme Court that expanded the definition of "persons" to include for-profit corporations for the purposes of applying constitutional protections. For 30 years, the court has granted First Amendment speech protections to corporations as "artificial persons."

But not until last month has the court declared that the First Amendment gives corporations the right to spend unlimited money to influence elections. The court majority, self-styled believers in precedent and judicial restraint, overturned two major Supreme Court decisions and reversed decades of campaign-finance laws aimed at preventing corporations from having undue influence over local, state and national elections.

Granted, existing campaign-finance rules have been inadequate. Regular news reports document how corporate spending debases elections and elected officials. But that doesn't mean things can't get worse. The court has challenged whatever social mores are left that view no-holds-barred corporate cash register politics as unseemly.

The disparities between individual contributions and available corporate dollars mock any pretense of equal justice under the law. A total of $5.2 billion from all sources was spent in the 2008 federal election cycle (which includes 2007 and 2008), according to the Center for Responsive Politics. For the same two-year period, ExxonMobil's profits were $85 billion. The top-selling drug, Pfizer's Lipitor, grossed $27 billion in sales during that time.

Such disparities invite corporations to spend whatever they believe necessary to further entrench the corporate state. The money they now spend will be used to reward friends and punish opponents.

Corporations know that money makes a big difference when it comes to blocking protections for workers, consumers and the environment. Wall Street, health insurance and drug companies, fossil fuel and nuclear power companies, and defense corporations have been hard at work defeating common-sense reforms that would make them more accountable.

Do we want more elected officials to believe that to challenge corporate agendas is to risk their career?

There is every reason to expect that there will be much more direct corporate electoral funding in the wake of Citizens United. Funneled without limit through trade associations and shadowy front groups able to run vicious attack ads without identifying their corporate patrons, such lucre will deter good candidates from running for office because they won't want to have anything to do with such dirty politics.

What can be done about this accelerating drift into the muck?

In the absence of a future court overturning Citizens United, the fundamental response should be a constitutional amendment. We must exclude all commercial corporations and other artificial commercial entities from participating in political activities. Such constitutional rights should be reserved for real people, including, of course, company employees, to enhance a government of, by and for the people.

Corporations are not humans. They do not vote. They should not be accorded a constitutional right to influence elections or public policies, especially given their enormous embedded privileges and immunities compared to real people.

While the arduous amendment process is underway, the progressive response to Citizens United rests with several legislative and administrative initiatives.

First, the Fair Elections Now Act in the House and Senate would provide candidates a base of funding to run viable campaigns without being indentured to corporate money. But these bills would not prevent corporations from overwhelming the public funding.

Second, a strong shareholder-protection policy should limit corporate political spending. This would require executives to get support from an absolute majority of their shareholders before spending any money on politics.

Third, as the nation's largest customer, the government could refuse, by statute or executive order, to contract with or provide subsidies, handouts and bailouts to any company that spends money directly in the electoral arena. This would help avoid corruption. No longer would Citigroup or General Motors, which were saved by taxpayers and are wards of Washington, be able to lobby as if they were stalwarts of sink-or-swim free enterprise.

As Justice John Paul Stevens, writing for the minority in Citizens United, demonstrated, the Framers did not intend for the First Amendment to confer protections on businesses beyond freedom of the press. The robust guarantees of the First Amendment are vital for real, live human beings, to ensure their expressive and democratic participative rights are protected. There can be no level playing field between the giant multinational corporations and individual citizens without such differential rights.

It is worth recalling that representative democracy is rule by the people. Corporations, first chartered into existence over 200 years ago by the states, were meant to be our servants, not our masters. Especially in the aftermath of Citizens United, it is time to right this relationship.

Copyright ©2010 Dow Jones & Company, Inc.
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Polls on Citizens United and Limiting Corporate Speech

About a week and a half ago I heard a news report stating that the majority of Americans agree with the Supreme Court ruling in Citizens United. When I looked at the actual Gallup Poll numbers, a different picture emerged.

A careful reading though, reveals that while 57% agreed that "campaign money given to political candidates" is a form of protected free speech, a whopping 76% think the government "should be able to limit the amount corporations and unions can give."

The Roper Center also reports that a FOX News poll found "that voters disapproving of the decision 53-27."
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The Baseline Scenario
What happened to the global economy and what we can do about it

President Obama On CEO Compensation At Too Big To Fail Banks
with 80 comments

Bloomberg today reports President Obama as commenting on the $17 million bonus for Jamie Dimon of JP Morgan Chase and the $9 million bonus for Lloyd Blankfein of Goldman Sachs,

“I know both those guys; they are very savvy businessmen,”

and

““I, like most of the American people, don’t begrudge people success or wealth. That is part of the free- market system.” [Emphasis Added]

Taken separately, these statements are undeniably true. But put them together in the context of the Bloomberg story – we have to wait until Friday for the full text of the interview – and the White House has a major public relations disaster on its hands.

Does the president truly not understand that Dimon and Blankfein run banks that are regarded by policymakers and hence by credit markets as “too big to fail”?

This is the antithesis of a free-market system.[Emphasis Added] Not only were their banks saved by government action in 2008-09 but the overly generous nature of this bailout (details here) means that the playing field is now massively tilted in favor of these banks. (I put this to Gerry Corrigan of Goldman and Barry Zubrow of JP Morgan when we appeared before the Senate Banking Committee last week; there was no effective rejoinder.)

Not only that, but the incentives for the people running these megabanks is now to take on reckless amounts of risk. They get the upside (for example, in these compensation packages) and – when the downside materializes – this belongs to taxpayers and everyone who loses a job. (See my testimony to the Senate Budget Committee yesterday; there was no disagreement among the witnesses or even across the aisle between Senators on this point.)

Being nice to the biggest banks will not save the midterm elections for the Democrats. The banks’ campaign contributions will flow increasingly to the Republicans and against any Democrats (and there are precious few) who have fought for real reform.

The president’s only political chance is to take on the too big to fail banks directly and clearly. He needs to explain where they came from (answer: the Reagan Revolution, gone wrong), how the problem became much worse during the last administration, and how – in credible detail – he will end their reign.

What we have now is not a free market. It is rather one of the most complete (and awful) instances ever of savvy businessmen capturing a state and the minds of the people who run it. Is this really what the president seeks to endorse?

By Simon Johnson
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FEBRUARY 10, 2010, 10:59 AM
Obama Clueless

Paul Krugman

I’m with Simon Johnson here: how is it possible, at this late date, for Obama to be this clueless?

The lead story on Bloomberg right now contains excerpts from an interview with Business Week which tells us:

President Barack Obama said he doesn’t “begrudge” the $17 million bonus awarded to JPMorgan Chase & Co. Chief Executive Officer Jamie Dimon or the $9 million issued to Goldman Sachs Group Inc. CEO Lloyd Blankfein, noting that some athletes take home more pay.

The president, speaking in an interview, said in response to a question that while $17 million is “an extraordinary amount of money” for Main Street, “there are some baseball players who are making more than that and don’t get to the World Series either, so I’m shocked by that as well.”

“I know both those guys; they are very savvy businessmen,” Obama said in the interview yesterday in the Oval Office with Bloomberg BusinessWeek, which will appear on newsstands Friday. “I, like most of the American people, don’t begrudge people success or wealth. That is part of the free- market system.”

Obama sought to combat perceptions that his administration is anti-business and trumpeted the influence corporate leaders have had on his economic policies. He plans to reiterate that message when he speaks to the Business Roundtable, which represents the heads of many of the biggest U.S. companies, on Feb. 24 in Washington.

Oh. My. God.

First of all, to my knowledge, irresponsible behavior by baseball players hasn’t brought the world economy to the brink of collapse and cost millions of innocent Americans their jobs and/or houses.

And more specifically, not only has the financial industry has been bailed out with taxpayer commitments; it continues to rely on a taxpayer backstop for its stability. Don’t take it from me, take it from the rating agencies:

Copyright 2010 The New York Times Company

Concerning Corporations Having the Rights of Persons and a Response to Libertarian Arguments

There are many folks, especially corporate oriented conservatives and those identifying themselves as libertarians, but also a few liberal free speech ideologues like the ACLU, trying to spin the negative reactions to the recent Supreme Court decision which gave additional speech rights to corporations. They spin the decision in narrow terms associated only with the additional rights corporations acquired from the decision, and to what they see as a right to unlimited speech by every entity, no matter how powerful, and no matter how much those rights diminish the rights of the majority of individual citizens. They do this while ignoring the historical context and views of the Founding Fathers, as well as those of previous Supreme Courts.

Before attempting to address the libertarian arguments, which boil down to free speech at any cost, and the logical consequence that people should be free to form corporations which can then drown out and monopolize speech at the expense of individual speech, here is but a small part of the context leading up to the McCain-Feingold law, presented by Senator Feingold himself:

Court decision opens floodgates for corporate money in campaigns
By SEN. RUSS FEINGOLD   Sunday, Jan. 31, 2010
http://gazettextra.com/news/2010/jan/31/court-decision-opens-floodgates-corporate-money-ca/

In its ruling in the case of Citizens United v. FEC, the Supreme Court has undone protections against corporate power that stood for more than a century. This decision is a terrible mistake, which gives corporate money a breathtaking new role in federal campaigns.

To see corporations gaining this much power may feel like a new era in American politics, but in fact it’s an old one. The Supreme Court has taken us back to the beginning of the 20th century, when Teddy Roosevelt battled the trusts, including the railroads, steel companies and oil companies.

Wisconsin’s “Fighting Bob” La Follette refused to be intimidated by the trusts. In 1906, he urged the Senate to pass legislation reining in the power of the railroad monopolies, saying “At no time in the history of any nation has it been so difficult to withstand these forces as it is right here in America today. Their power is acknowledged in every community and manifest in every lawmaking body.”

A year after La Follette spoke those words, Congress passed the Tillman Act to keep corporate money from overwhelming our democratic system. Over the next 100 years, further reforms were enacted to curb corporate influence over elections and respond to scandals such as Watergate or the auctioning of the Lincoln Bedroom to the highest bidder—and the Supreme Court consistently upheld them.

The Supreme Court’s decision returns us to a legal framework that fostered a golden era of corporate influence. While the core of the McCain-Feingold law—the ban on unlimited “soft-money” contributions by corporations, unions and wealthy individuals directly to political parties—remains intact for now, the reasoning of the Supreme Court’s decision undermines the very foundation of a host of laws enacted to strengthen our democracy and curb corruption in government.

The court’s decision gives a green light to corporations to unleash their massive coffers on the political system. Oil companies, with virtually no harm to their balance sheets, can now try to “take out” members of Congress who don’t toe their company line on energy policy. Foreign-owned companies—even those owned and controlled by foreign governments—are free to underwrite the candidates of their choice.

This new reality strengthens the grip that corporations already have on our democratic institutions. Time and again, the American people have seen their concerns ignored in favor of wealthy interests: in the approval of trade agreements that sent their businesses and jobs overseas, and the undoing of common-sense safeguards on financial companies that contributed to the worst financial crisis since the Great Depression, among many other decisions.

I will be working with my colleagues to try to restore the voice of the average citizen in elections. We must not stand by as corporations threaten to dominate our democratic process. [Threaten to dominate? Their lobbyists have already purchased the Congress, the presidency and many state legislatures, this decision just guarantees that it will stay that way. - Chris] In our democracy, it’s the power of the voters—not the power of corporate wealth—that should decide our elections.

[Emphasis Added - Chris]

Sen. Russ Feingold, D-Wis., can be reached at 506 Hart Building, Washington, D.C. 20510-4904; phone (202) 224-5323; e-mail russell_feingold@feingold.senate.gov.
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Also worth noting is the following quote from Thomas Jefferson, the principle author of the Declaration of Independence:

“I hope we shall... crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and to bid defiance to the laws of our country.”
~ Thomas Jefferson, letter to George Logan. November 12, 1816

And Jefferson was not alone. In a recent article published in CounterPunch, (Defending the Money Machines, Et Tu, ACLU? http://www.counterpunch.org/fitrakis01272010.html), Fitrakis and Wasserman remind us that "Nowhere in the Constitution do the Founders mention the word corporation. There were six of them at the time of ratification, all strictly limited by state charter to where and what kind of business they could do. They bear scant resemblance to the multi-national behemoths we confront today. Those who wrote and ratified the First Amendment would be horrified by their very existence."
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Santa Clara County v. Southern Pacific Railroad Company

Of equal importance is another interesting tid-bit concerning the alleged Supreme Court decision, a poster child for judicial activism, granting corporations the "same right of living persons" back in 1886. Apparently, the Supreme Court never even publicly argued the question. While I was aware of the idea that the high court ruled that corporations had the same rights as people, the facts of the case had not become a part of my consciousness. There are accounts of the case on Wikipedia and elsewhere that attest to the fact that it was never officially and publicly argued, but here is a concise account with links:

(rat haus reality--ratical branch http://www.ratical.org/corporations/SCvSPR1886.html):
This is the text (http://www.ratical.org/corporations/SCvSPR1886.html#118US394) of the 1886 Supreme Court decision granting corporations the same rights as living persons under the Fourteenth Amendment to the Constitution. Quoting from David Korten's "The Post-Corporate World, Life After Capitalism" (http://www.ratical.org/many_worlds/seeingPCW.html pp.185-6):

        

 In 1886, . . . in the case of Santa Clara County v. Southern Pacific Railroad Company, the U.S. Supreme Court decided that a private corporation is a person and entitled to the legal rights and protections the Constitutions affords to any person. Because the Constitution makes no mention of corporations, it is a fairly clear case of the Court's taking it upon itself to rewrite the Constitution.

Far more remarkable, however, is that the doctrine of corporate personhood, which subsequently became a cornerstone of corporate law, was introduced into this 1886 decision without argument. According to the official case record, Supreme Court Justice Morrison Remick Waite simply pronounced before the beginning of arguement in the case of Santa Clara County v. Southern Pacific Railroad Company that:

          "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does."

          The court reporter duly entered into the summary record of the Court's findings that:

          The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteen Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.

Thus it was that a two-sentence assertion by a single judge elevated corporations to the status of persons under the law, prepared the way for the rise of global corporate rule, and thereby changed the course of history.

 The doctrine of corporate personhood creates an interesting legal contradiction. The corporation is owned by its shareholders and is therefore their property. If it is also a legal person, then it is a person owned by others and thus exists in a condition of slavery -- a status explicitly forbidden by the Thirteenth Amendment to the Constitution. So is a corporation a person illegally held in servitude by its shareholders? Or is it a person who enjoys the rights of personhood that take precedence over the presumed ownership rights of its shareholders? So far as I have been able to determine, this contradiction has not been directly addressed by the courts.

More alternative information about corporations can be found at:
Ending Corporate Governance--Revoking Our Plutocracy
http://www.ratical.org/corporations/
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More historical context can be found in the defense of the "Fairness Doctrine" by the Supreme Court in 1969, and in the vetoes by former President Reagan, formerly a corporate TV ad spokesperson for General Electric, in the following 2005 article from Fairness & Accuracy In Reporting (FAIR). The article also supports the notion that the "Supreme Court" is little more than a political institution, which has been underlined by the recent decision of the Republican Roberts court. The "Fairness Doctrine" even back then attempted to address the huge power of corporations in controlling the informational and ideological content that flows from the "airwaves" i.e., frequencies/channels, which are owned by the American people, but controlled by corporate media. Think FOX "news," CBS, NBC, ABC & etc. Even FAIR's presentation can be interpreted as "soft" in its defense of the rights of Americans to control those frequencies, because it doesn't argue against lax standards, and corporate influence over the "airwaves" has only been expanded over the years through media consolidation, resulting in even fewer corporations controlling the information that Americans recieve.

Here is the FAIR article. (Read the article on the link provided for more useful links):
Extra! January/February 2005

The Fairness Doctrine
How we lost it, and why we need it back
http://www.fair.org/index.php?page=2053

By Steve Rendall

A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a...frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others.... It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.

— U.S. Supreme Court, upholding the constitutionality of the Fairness Doctrine in Red Lion Broadcasting Co. v. FCC, 1969.

When the Sinclair Broadcast Group retreated from pre-election plans to force its 62 television stations to preempt prime-time programming in favor of airing the blatantly anti–John Kerry documentary Stolen Honor: Wounds that Never Heal, the reversal wasn’t triggered by a concern for fairness: Sinclair back-pedaled because its stock was tanking. The staunchly conservative broadcaster’s plan had provoked calls for sponsor boycotts, and Wall Street saw a company that was putting politics ahead of profits. Sinclair’s stock declined by nearly 17 percent before the company announced it would air a somewhat more balanced news program in place of the documentary (Baltimore Sun, 10/24/04).

But if fairness mattered little to Sinclair, the news that a corporation that controlled more TV licenses than any other could put the publicly owned airwaves to partisan use sparked discussion of fairness across the board, from media democracy activists to television industry executives.

Variety (10/25/04) underlined industry concerns in a report suggesting that Sinclair’s partisanship was making other broadcasters nervous by fueling “anti-consolidation forces” and efforts to bring back the FCC’s defunct Fairness Doctrine:

Sinclair could even put the Fairness Doctrine back in play, a rule established in 1949 to require that the networks—all three of them—air all sides of issues. The doctrine was abandoned in the 1980s with the proliferation of cable, leaving citizens with little recourse over broadcasters that misuse the public airwaves, except to oppose the renewal of licenses.

The Sinclair controversy brought discussion of the Fairness Doctrine back to news columns (Baltimore Sun, 10/24/04; L.A. Times, 10/24/04) and opinion pages (Portland Press Herald, 10/24/04; Fort Worth Star-Telegram, 10/22/04) across the country. Legal Times (11/15/04) weighed in with an in-depth essay headlined: “A Question of Fair Air Play: Can Current Remedies for Media Bias Handle Threats Like Sinclair’s Aborted Anti-Kerry Program?”

Sinclair’s history of one-sided editorializing and right-wing water-carrying, which long preceded its Stolen Honor ploy (Extra!, 11–12/04), puts it in the company of political talk radio, where right-wing opinion is the rule, locally and nationally. Together, they are part of a growing trend that sees movement conservatives and Republican partisans using the publicly owned airwaves as a political megaphone—one that goes largely unanswered by any regular opposing perspective. It’s an imbalance that begs for a remedy.

A short history of fairness

The necessity for the Fairness Doctrine, according to proponents, arises from the fact that there are many fewer broadcast licenses than people who would like to have them. Unlike publishing, where the tools of the trade are in more or less endless supply, broadcasting licenses are limited by the finite number of available frequencies. Thus, as trustees of a scarce public resource, licensees accept certain public interest obligations in exchange for the exclusive use of limited public airwaves. One such obligation was the Fairness Doctrine, which was meant to ensure that a variety of views, beyond those of the licensees and those they favored, were heard on the airwaves. (Since cable’s infrastructure is privately owned and cable channels can, in theory, be endlessly multiplied, the FCC does not put public interest requirements on that medium.)

The Fairness Doctrine had two basic elements: It required broadcasters to devote some of their airtime to discussing controversial matters of public interest, and to air contrasting views regarding those matters. Stations were given wide latitude as to how to provide contrasting views: It could be done through news segments, public affairs shows or editorials.

Formally adopted as an FCC rule in 1949 and repealed in 1987 by Ronald Reagan’s pro-broadcaster FCC, the doctrine can be traced back to the early days of broadcast regulation.

Early on, legislators wrestled over competing visions of the future of radio: Should it be commercial or non-commercial? There was even a proposal by the U.S. Navy to control the new technology. The debate included early arguments about how to address the public interest, as well as fears about the awesome power conferred on a handful of licensees.

American thought and American politics will be largely at the mercy of those who operate these stations, for publicity is the most powerful weapon that can be wielded in a republic. And when such a weapon is placed in the hands of one person, or a single selfish group is permitted to either tacitly or otherwise acquire ownership or dominate these broadcasting stations throughout the country, then woe be to those who dare to differ with them. It will be impossible to compete with them in reaching the ears of the American people.

— Rep. Luther Johnson (D.-Texas), in the debate that preceded the Radio Act of 1927 (KPFA, 1/16/03)

In the Radio Act of 1927, Congress mandated the FCC’s forerunner, the Federal Radio Commission (FRC), to grant broadcasting licenses in such a manner as to ensure that licensees served the “public convenience, interest or necessity.”

As former FCC commissioner Nicholas Johnson pointed out (California Lawyer, 8/88), it was in that spirit that the FRC, in 1928, first gave words to a policy formulation that would become known as the Fairness Doctrine, calling for broadcasters to show “due regard for the opinions of others.” In 1949, the FCC adopted the doctrine as a formal rule (FCC, Report on Editorializing by Broadcast Licensees, 1949).

In 1959 Congress amended the Communications Act of 1934 to enshrine the Fairness Doctrine into law, rewriting Chapter 315(a) to read: “A broadcast licensee shall afford reasonable opportunity for discussion of conflicting views on matters of public importance.”

It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the government itself or a private licensee. It is the right of the public to receive suitable access to social, political, aesthetic, moral and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.

— U.S. Supreme Court, Red Lion Broadcasting Co. v. FCC, 1969.

A decade later the United States Supreme Court upheld the doctrine’s constitutionality in Red Lion Broadcasting Co. v. FCC (1969), foreshadowing a decade in which the FCC would view the Fairness Doctrine as a guiding principle, calling it “the single most important requirement of operation in the public interest—the sine qua non for grant of a renewal of license” (FCC Fairness Report, 1974).

How it worked

There are many misconceptions about the Fairness Doctrine. For instance, it did not require that each program be internally balanced, nor did it mandate equal time for opposing points of view. And it didn’t require that the balance of a station’s program lineup be anything like 50/50. [Even though it should have at least suggested that goal. - Chris]

Nor, as Rush Limbaugh [drug use hypocrite who was addicted to the prescription drugs oxycodone and hydrocodone (http://en.wikipedia.org/wiki/Rush_Limbaugh#Prescription_drug_addiction) - Chris] has repeatedly claimed, was the Fairness Doctrine all that stood between conservative talkshow hosts and the dominance they would attain after the doctrine’s repeal. In fact, not one Fairness Doctrine decision issued by the FCC had ever concerned itself with talkshows. Indeed, the talkshow format was born and flourished while the doctrine was in operation. Before the doctrine was repealed, right-wing hosts frequently dominated talkshow schedules, even in liberal cities, but none was ever muzzled (The Way Things Aren’t, Rendall et al., 1995). The Fairness Doctrine simply prohibited stations from broadcasting from a single perspective, day after day, without presenting opposing views.

In answer to charges, put forward in the Red Lion case, that the doctrine violated broadcasters’ First Amendment free speech rights because the government was exerting editorial control, Supreme Court Justice Byron White wrote: “There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all.” In a Washington Post column (1/31/94), the Media Access Project (MAP), a telecommunications law firm that supports the Fairness Doctrine, addressed the First Amendment issue: “The Supreme Court unanimously found [the Fairness Doctrine] advances First Amendment values. It safeguards the public’s right to be informed on issues affecting our democracy, while also balancing broadcasters’ rights to the broadest possible editorial discretion.”

Indeed, when it was in place, citizen groups used the Fairness Doctrine as a tool to expand speech and debate. For instance, it prevented stations from allowing only one side to be heard on ballot measures. Over the years, it had been supported by grassroots groups across the political spectrum, including the ACLU, National Rifle Association and the right-wing Accuracy In Media.

Typically, when an individual or citizens group complained to a station about imbalance, the station would set aside time for an on-air response for the omitted perspective: “Reasonable opportunity for presentation of opposing points of view,” was the relevant phrase. If a station disagreed with the complaint, feeling that an adequate range of views had already been presented, the decision would be appealed to the FCC for a judgment.

According to Andrew Jay Schwartzman, president of MAP, scheduling response time was based on time of day, frequency and duration of the original perspective. “If one view received a lot of coverage in primetime,” Schwartzman told Extra!, “then at least some response time would have to be in primetime. Likewise if one side received many short spots or really long spots.” But the remedy did not amount to equal time; the ratio of airtime between the original perspective and the response “could be as much as five to one,” said Schwartzman.

As a guarantor of balance and inclusion, the Fairness Doctrine was no panacea. It was somewhat vague, and depended on the vigilance of listeners and viewers to notice imbalance. But its value, beyond the occasional remedies it provided, was in its codification of the principle that broadcasters had a responsibility to present a range of views on controversial issues.

The doctrine’s Demise

From the 1920s through the ’70s, the history of the Fairness Doctrine paints a picture of public servants wrestling with how to maintain some public interest standards in the operation of publicly owned—but corporate-dominated—airwaves. Things were about to change.

The 1980s brought the Reagan Revolution, with its army of anti-regulatory extremists; not least among these was Reagan’s new FCC chair, Mark S. Fowler. Formerly a broadcast industry lawyer, Fowler earned his reputation as “the James Watt of the FCC” by sneering at the notion that broadcasters had a unique role or bore special responsibilities to ensure democratic discourse (California Lawyer, 8/88). It was all nonsense, said Fowler (L.A. Times, 5/1/03): “The perception of broadcasters as community trustees should be replaced by a view of broadcasters as marketplace participants.” To Fowler, television was “just another appliance—it’s a toaster with pictures,” and he seemed to endorse total deregulation (Washington Post, 2/6/83): “We’ve got to look beyond the conventional wisdom that we must somehow regulate this box.”

Of course, Fowler and associates didn’t favor total deregulation: Without licensing, the airwaves would descend into chaos as many broadcasters competed for the same frequencies, a situation that would mean ruin for the traditional corporate broadcasters they were so close to. But regulation for the public good rather than corporate convenience was deemed suspect.

Fowler vowed to see the Fairness Doctrine repealed, and though he would depart the commission a few months before the goal was realized, he worked assiduously at setting the stage for the doctrine’s demise.

He and his like-minded commissioners, a majority of whom had been appointed by President Ronald Reagan, argued that the doctrine violated broadcasters’ First Amendment free speech rights [Sound Familiar?] by giving government a measure of editorial control over stations. Moreover, rather than increase debate and discussion of controversial issues, they argued, the doctrine actually chilled debate, because stations feared demands for response time and possible challenges to broadcast licenses (though only one license was ever revoked in a dispute involving the Fairness Doctrine—California Lawyer, 8/88).

The FCC stopped enforcing the doctrine in the mid-’80s, well before it formally revoked it. As much as the commission majority wanted to repeal the doctrine outright, there was one hurdle that stood between them and their goal: Congress’ 1959 amendment to the Communications Act had made the doctrine law.

Help would come in the form of a controversial 1986 legal decision by Judge Robert Bork and then-Judge Antonin Scalia [now supreme Court Justice], both Reagan appointees on the D.C. Circuit of the U.S. Court of Appeals. Their 2–1 opinion avoided the constitutional issue altogether, and simply declared that Congress had not actually made the doctrine into a law. Wrote Bork: “We do not believe that language adopted in 1959 made the Fairness Doctrine a binding statutory obligation,” because, he said, the doctrine was imposed “under,” not “by” the Communications Act of 1934 (California Lawyer, 8/88). Bork held that the 1959 amendment established that the FCC could apply the doctrine, but was not obliged to do so—that keeping the rule or scuttling it was simply a matter of FCC discretion.

“The decision contravened 25 years of FCC holdings that the doctrine had been put into law in 1959,” according to MAP. But it signaled the end of the Fairness Doctrine, which was repealed in 1987 by the FCC under new chair Dennis R. Patrick, a lawyer and Reagan White House aide.

A year after the doctrine’s repeal, writing in California Lawyer(8/88), former FCC commissioner Johnson summed up the fight to bring back the Fairness Doctrine as “a struggle for nothing less than possession of the First Amendment: Who gets to have and express opinions in America.” Though a bill before Congress to reinstate the doctrine passed overwhelmingly later that year, it failed to override Reagan’s veto. Another attempt to resurrect the doctrine in 1991 ran out of steam when President George H.W. Bush threatened another veto.

Where Things Stand

What has changed since the repeal of the Fairness Doctrine? Is there more coverage of controversial issues of public importance? “Since the demise of the Fairness Doctrine we have had much less coverage of issues,” says MAP’s Schwartzman, adding that television news and public affairs programming has decreased locally and nationally. According to a study conducted by MAP and the Benton Foundation, 25 percent of broadcast stations no longer offer any local news or public affairs programming at all (Federal Communications Law Journal, 5/03).

The most extreme change has been in the immense volume of unanswered conservative opinion heard on the airwaves, especially on talk radio. Nationally, virtually all of the leading political talkshow hosts are right-wingers: Rush Limbaugh, Sean Hannity, Michael Savage, Oliver North, G. Gordon Liddy, Bill O’Reilly and Michael Reagan, to name just a few. The same goes for local talkshows. One product of the post-Fairness era is the conservative “Hot Talk” format, featuring one right-wing host after another and little else. Disney-owned KSFO in liberal San Francisco is one such station (Extra!, 3–4/95). Some towns have two.

When Edward Monks, a lawyer in Eugene, Oregon, studied the two commercial talk stations in his town (Eugene Register-Guard, 6/30/02), he found “80 hours per week, more than 4,000 hours per year, programmed for Republican and conservative talk shows, without a single second programmed for a Democratic or liberal perspective.” Observing that Eugene (a generally progressive town) was “fairly representative,” Monks concluded: “Political opinions expressed on talk radio are approaching the level of uniformity that would normally be achieved only in a totalitarian society. There is nothing fair, balanced or democratic about it.”

Bringing Back Fairness?

For citizens who value media democracy and the public interest, broadcast regulation of our publicly owned airwaves has reached a low-water mark. In his new book, Crimes Against Nature, Robert F. Kennedy Jr. probes the failure of broadcasters to cover the environment, writing, “The FCC’s pro-industry, anti-regulatory philosophy has effectively ended the right of access to broadcast television by any but the moneyed interests.”

According to TV Week(11/30/04), a coalition of broadcast giants is currently pondering a legal assault on the Supreme Court’s Red Lion decision. “Media General and a coalition of major TV network owners—NBC Universal, News Corp. and Viacom—made clear that they are seriously considering an attack on Red Lion as part of an industry challenge to an appellate court decision scrapping FCC media ownership deregulation earlier this year.”

Considering the many looming problems facing media democracy advocates, Extra! asked MAP’s Schwartzman why activists should still be concerned about the Fairness Doctrine.

What has not changed since 1987 is that over-the-air broadcasting remains the most powerful force affecting public opinion, especially on local issues; as public trustees, broadcasters ought to be insuring that they inform the public, not inflame them. That’s why we need a Fairness Doctrine. It’s not a universal solution. It’s not a substitute for reform or for diversity of ownership. It’s simply a mechanism to address the most extreme kinds of broadcast abuse.

See FAIR's Archives for more on: 
Narrow Range of Debate
 & Telecom Policy
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A Libertarian Viewpoint:

(which ignores the larger context of control by corporations of most of the media easily accessible to most Americans, including newspapers. All we have left are voices on the internet, which except for the power of search engines, are like needles in a haystack.)

On last Friday's Bill Moyers Journal on PBS (http://www.pbs.org/moyers/journal/index-flash.html), Moyer's gave airtime to a libertarian, Nick Gillespie ("Editor-in-Chief of Reason.TV and the website Reason.com,"), as he should. In the segment, he aired a portion of a video incapsulating Gillespie's opinions, which are similar to some I have heard from a libertarian here in Baker City. The quote is below, and my response is interspersed:

NICK GILLESPIE: Whoa, what's got this trio of patriots so riled up about the end of free speech in America? Ironically it's a Supreme Court ruling about a political film that was actually censored by the federal government. To call the apocalyptic rhetoric about the Citizens United overheated is a massive understatement for at least three reasons.

[I'm beginning to think Gillespie is auditioning for a right-wing radio talk show!--Chris]

[Of course McCain Feingold limited when the corporate ad could be shown but did not censor the ad itself. McCain Feingold was in part an attempt to limit the influence of corporations by not allowing them to use their vast sums to buy up all the available time on the airwaves to fill them with nonsense and distortions in the last days of political campaigns. They could air their views ad-nauseum in the corporate controlled media prior to those last days, as they do every single day of your life. - Chris]

Gillespie's Reasons:

1) Twenty-six states already allow corporate donations in this context. Do you think places like Utah, Missouri and Virginia [and Oregon & California] are more corrupt than states that don't allow corporations to voice opinions on political matters?

[26 is barely more than half of of our 50 states. Does that prove anything at all? Where is a study showing that the 26 states allowing corporate contributions in the last days of an election are less corrupt than the other 24 who don't? The fact that bankrupt California and struggling Oregon are included in the 26 holds no water with me. Without such studies I will trust common sense. Additionally, it ignores the reason why I believe most people think that corporate influence is excessive, which goes beyond the decision in question. I do think that most people would agree that corporate influence has affected laws concerning health care and automobile Insurance, including government requirements for a single individual to insure every owned automobile, no matter how much it is driven, with insurance costing the same as if it were driven every day (not to mention an auto insurer's ability to total a perfectly useful car without paying the price for repairs), are influenced by corporate money and influence on policy makers. Just today, an acquaintance told me an insurance company denied his request for insurance unless he could prove he has been driving with insurance, the ultimate catch-22. Readers will likely come up with many more examples.--Chris]

[Gillespie continues]

2)For decades many corporations have been intricately enmeshed within the political process, even going so far as to publicly support specific candidates and specific pieces of legislation. You know them better by names like "The New York Times," "The Wall Street Journal," "The Washington Post," "USA Today," "The Los Angeles Times" and basically every major newspaper in the country. If we can withstand "The New York Times" telling us who to vote for, we can probably withstand Exxon Mobil trying to tell us to vote for Sarah Palin, or against Joe Biden.

[Here, Gillespie ignores the whole reason for limiting corporate control of information by stating an example of corporate control--the corporate newspaper industry. I and many others who feel that corporate speech has gone way to far cite corporate control of the press and the publishing industry as a primary example of how corporations have monopolized speech in those sectors. Sure, you can write a very short letter to the editor, but the papers can write long editorials and continuously print the most obnoxious Op-Eds, editorial cartoons, and book reviews of their choosing. Writers with seriously alternative views, those that challenge the prevailing ideology and power, are forced to go to obscure publishing houses (or blogs) to get their views or books in print, and the mainstream, primarily corporate controlled media, will rarely, if ever, mention their existence or print an objective review.]

3) More speech is never a bad thing, whether it's funded by Citizens United, or by Microsoft, or by the Teamsters Union. And it's especially not a bad thing right before an election when politics matters most. If you want to get exercised over something, don't get bent out of shape over a court ruling that actually increases free speech. Instead turn your ire on a government that is vast and growing and helps or hinders corporations based on political lobbying rather than marketplace forces.

[Here, Gillespie knowingly obscures the obvious difference in money and power between individuals and corporations. The fact that by comparison to real "persons," corporations have enormous sums of money to buy up the available airtime is completely ignored. (This is the same blindspot that allows libertarians to think that poor people exist on a "level playing field" with the rich when seeking economic and social opportunity.) "More speech," when it drowns out the voices of individuals, the people, is obviously a bad thing.

Additionally, most reasonable people, and a Supreme Court decision, accepts that a "person" cannot shout fire in a crowded theater when it would "create a clear and present danger that they will bring about . . . substantive evils." In this case, the "clear and present danger" is that monopolization of speech by corporations, will, and does, undermine democracy (Schenck v. United States in 1919, http://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater)). While this decision was modified by "Brandenburg v. Ohio," which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action" (http://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater), that doesn't negate the soundness of Oliver Wendell Holmes, Jr.'s view (even though he applied it poorly to anti-war protesters), or the reasoning in support of the "Fairness Doctrine."]

See also:

Restoring Trust in Our Democracy: Larry Lessig's Presentation for the Fair Elections Now Act
http://www.fixcongressfirst.org

As we've watched presidents in both parties fail to pass their agendas, it's become increasingly clear that elections are no longer where decisions are made in this country. That weakening of our democracy should frighten everyone equally, whether or not you support the people currently in power.

Our goal is to restore public trust in our government by passing a hybrid of small-dollar donations and public financing of elections.

http://www.fixcongressfirst.org/


http://www.freespeechforpeople.org/


Moyers Journal 2/5/10
http://www.pbs.org/moyers/journal/index-flash.html
MoyersTranscript
http://www.pbs.org/moyers/journal/02052010/transcript5.html

The Corporate Takeover of U.S. Democracy

In This Issue:

- Housekeeping; No more comments for now.

- More on Roberts-Kennedy Supreme Court Decision

- Palestine: "This Time 'We' [that is Israel] Went to Far" (Norman Finkelstein)

- Patty Griffin--"Useless Desires"

- Grateful Dead--"Ripple"
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Comments to the blog have been at least temporarily discontinued due to the posting of a personal e-mail by an anonymous user.
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More on Roberts-Kennedy Supreme Court Decision

See Also:
- More on Corporations as Persons (Corporation Running for Congress Satire)
http://bakercountyblog.blogspot.com/2010/01/baker-birds-gray-crowned-rosy-finches.html

- More on the Corporate Takeover of America: Inverted totalitarianism
http://bakercountyblog.blogspot.com/2010/01/more-on-corporate-takeover-of-america.html

- Supreme Court Hands American "Democracy" over to the Corporations
http://bakercountyblog.blogspot.com/2010/01/supreme-court-hands-american-democracy.html
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The Founding Fathers Did Not Want Large Corporations

http://www.theseminal.com/2009/03/03/the-founding-fathers-did-not-want-large-corporations/

by Jim Moss :: Filed Under The Economy, U.S. Domestic Issues :: March 3rd, 2009 @ 1:00 am EST

Many proponents of the free market defend our current system of corporate-based capitalism as if it descended directly from heaven into the pen of Adam Smith and then onto the hearts of our all-knowing Founding Fathers. An investigation of the history of the corporation, however, reveals a much different story.

The first corporations appeared in Europe in the 16th and 17th centuries and were chartered by governments for specific public missions. The largest and most powerful of these early corporations was The East India Company, founded by Queen Elizabeth in 1600 to facilitate trade between England and her colonies. At the height of its power, The East India Compnay held economic control over 1/5 of world’s population and maintained a private army of over 250,000 soldiers. Unjust taxation policies favoring this company insured that the crown, and not the colonists themselves, reaped the benefits from the colonies’ natural wealth and industry.

During the 18th century, Enlightenment ideals began to challenge the power of monarchies and corporations, and the power of the queen’s corporation began to fade. The Boston Tea Party of 1773 signaled not only a victory over the economic tyranny of the East India Company, it also helped pave the way for the political uprising known as the American Revolution. Also around this time, Adam Smith published the Wealth of Nations, arguing for free market economics, but against the concept of large corporations, claiming that they limit fair competition among smaller-sized merchants and artisans.

When the United States gained its independence in 1776, there were 336 corporations in the United States, but most had been chartered by state governments for specific public works projects. The Founding Fathers, still mindful of the crushing power once wielded by the East India Company, severly limited the power of corporations and never would have dreamed of nor allowed the trans-national behemoths we see today. In fact, the original limitations seem laughable when we consider our modern corporations:

1) Corporate charters were granted for fixed periods of time, usually between 10 and 40 years.

Today, corporations are assumed to be open-ended in their duration, only ceasing to exist if they can no longer afford to stay in business. (And sometimes being allowed to continue with government funds even when they can’t sustain themselves!)

2) Corporate charters could be promptly revoked for violations of law or for causing public harm.

Back then, there was corporate accountability. Break the law, and you’re out of business. Today, an offending individual or two might (and I say might) see jail time, but the corporate machine just keeps rolling along. And as for causing public harm…

3) Corporations could engage only in activities necessary to fulfill their chartered purpose. Could you imagine a government official walking into a board meeting at Disney and telling them that they the only business they can be conducting in the whole company is producing cartoons?
4) Corporations could not own property that was not essential to the fulfilling of their chartered purpose. Does that include luxury jets? How about condos in the Caribbean?

5) Corporations could not own stock in other corporations. I’m beginning to see a trend here. Corporations were not allowed to do anything or own any assets that were not specifically related to the purpose for which they were founded. Period.

6) The personal assets of corporate shareholders were not protected from the consequences of corpoate behavior. Oh snap! If still upheld today, this rule would have meant that anyone who owned stock in any of the companies that needed a bailout would have had to have paid for those bailouts out of their own pockets. Owning part of a corporation meant truly being responsible for that corporation.

Were they around today, the Founding Fathers would look at our corporate climate and our economic situation, and they would say, “We tried to warn you!” But Amercia has not heeded their wisdom. Almost as soon as the country was born, big business interests began to chip away at these constraints on corporate power. Stay tuned for Part 2 of “The History of Corporate Power: The Rise of the Robber Barons”.
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The Roberts-Kennedy Supreme Court Decision

Articles Against the Decision:
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America, Inc. Is Here. Get With The Program!

By Ernest Partridge
Co-Editor The Crisis Papers
http://www.crisispapers.org/essays10p/program.htm
http://www.informationclearinghouse.info/article24587.htm

February 03, 2010 "Crisis Papers" -- With the Supreme Court Ruling, Citizens United v. FEC, the government of the United States has, in effect, become a subsidiary of Corporate America.

So isn't it time to rethink a few of our government institutions?

After all, the American public has a well-deserved reputation for discarding shopworn institutions that have ceased to serve any useful purpose, and to replace them with imaginative and appropriate innovations Thus passenger railroads were replaced by the airlines and private automobiles, and daily newspapers by television, which is likely in turn to be supplanted by computers and the Internet.

In the same spirit, I propose that we abolish elections and replace them with auctions.

Clearly, the polling statistics show us that the public has lost interest in elections. Furthermore, the Congress has little inclination to reform campaign finance rules. Why should they bother, when last month SCOTUS, in one fell-swoop, scuttled a century of such reforms by the the Congress and previous Supreme Courts (stare decisis be damned!). The decisive push down the slippery slope leading to Citizens United was the Buckley v. Valeo decision (1976) which ruled that "cash is speech." Because numerous studies have disclosed a high correlation between campaign spending and electoral success, Buckley effectively nullified citizen equality at the ballot box in favor of the "free market" principle that the political influence of an individual or a corporation is properly proportional to one's wealth. (See "A Bribe by Any Other Name"). "Citizens United" has pounded the final nail in the coffin of Abraham Lincoln's naive notion of "government of, by, and for the people."

So let's get real! Let's simply acknowledge the obvious facts: that public offices serve private corporate interests, and that legislators' votes are bought and sold by bidders, politely referred to as "contributors." If this is the way things are let's bring the practice out into the open. If elections are irrelevant relics of simpler and more naive times and public offices have become commodities, let's treat them as such, honestly and openly.

Let's abolish elections and instead, select our politicians by auction.

Consider the Advantages:

The auctions could become a public celebration of "the free market," just as elections were at one time celebrations of the archaic notions of "citizen democracy" and "the public interest." The biennial national "auctions" would be televised, with the TV network anchors as auctioneers. Throughout the realm, wealthy stockholders in their mansions would sit spellbound by their TV sets, cheering on the CEOs as they bid for preferred Congressional treatment of the viewer's investments.

"Conservatives" constantly complain about "tax and spend" government programs. If our proposal is adopted, proceeds from the auction might replace taxes. Furthermore, corporate complaints about spending might subside as the government, now a wholly-owned subsidiary of the corporate bidders, spends at the behest of those who "bought" it.

Nor is this the end of opportunities for "revenue enhancement." Just think of the advertising space available on our currency, as portraits of Wall Street CEOs, and such notables as Timothy Geithner, Alan Greenspan, Donald Trump and Bill Gates, replace those of the dead presidents.

Still more opportunities: Recently, corporations have taken to purchasing the privilege of having their names placed on major-league stadia. So why not adopt the same practice for government buildings and agencies: "The Archer-Daniels-Midland Department of Agriculture," "The Smithsonian/Boeing Space Museum," "The Goldman-Sachs Treasury Building," "The Dow Chemical Environmental Protection Agency," "The Eli Lilly Center for Disease Control," "The Halliburton Pentagon Building," and "The Exxon/Mobil Department of Energy."

It is well-known that since the Reagan administration, Congressional legislation has largely been written by corporate lobbyists, even though bills have routinely borne the names of legislators. With the privatization of the government we may now, at last, see an end to such political hypocrisy and the resulting public cynicism about government. With no further pretense of representing "the people," politicians may now be openly identified by their correct designations: e.g., "Senator Libermann from Met Life," "Senator Chamblis from Diebold," "Senator Baucus from United Health," "Senator Gillibrand from Philip Morris," "Senator McCain from the National Rifle Association," and so on.

For purposes of identification, the logos of the corporate sponsors might now appear on the jackets of all members of Congress, and on the front of the podia during their public appearances. On the nightly newscasts, the anchors might announce, "this congressional bill brought to you by the good folks at the Chamber of Commerce." And the tobacco companies, relieved of the embarrassment of the health warnings on the cigarette packs, can replace them with the label "proud co-owners of the United States Government."

Finally, the efficiency managers of USA Inc. can go to work and "downsize" the government, most notably by eliminating redundancies. It has long been observed that federal regulatory agencies are eventually "captured" by the private interests that they are supposed to regulate. Now this "capture" can be openly acknowledged, as the Securities and Exchange Commission merges with the New York Stock Exchange, and the Federal Communications Commission, the Federal Aviation Agency, etc., become trade associations of their respective industries. And of course, with the privatization of government, the distinction between corporate lobbyists and members of Congress will disappear entirely, as lobbyists officially and openly become legislators and vice versa.

Radical? Not at all! This proposal and all its nuances make complete sense in light of the pending total corporate takeover of the U.S. government that will surely follow Citizens United v. FEC. We will soon see the full realization of the "conservative" doctrine that "society" is nothing more than a market place, and thus that all social problems can best be solved through privatization and the free market. (See "Beautiful Theory vs. Baffling Reality" and "The State Religion").

We have privatized the Postal Service and much of the military, and soon the schools will follow. Now, thanks to the SCOTUS "gang of five," the total privatization of the government of the United States is soon to follow.

So quit complaining and get used to it.

After all, you can't stop progress!

Note: An earlier version of this essay, titled "A Modest Proposal," was published at this site in February, 2003. I can claim some originality with the idea, now much talked about, of the NASCAR-style logo patches, although no doubt others had thought of it beforehand. I was just not aware of these other inventions. The idea of "The Senator from ..." is, of course, an old one with which I was very familiar.

Copyright 2003, 2010, by Ernest Partridge
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The Corporate Takeover of U.S. Democracy

By Noam Chomsky

February 03, 2010 "In These Times" --
http://www.inthesetimes.com/article/5502/the_corporate_takeover_of_u.s._democracy/
http://www.informationclearinghouse.info/article24588.htm

Jan. 21, 2010, will go down as a dark day in the history of U.S. democracy, and its decline.

On that day the U.S. Supreme Court ruled that the government may not ban corporations from political spending on elections—a decision that profoundly affects government policy, both domestic and international.

The decision heralds even furthers corporate takeover of the U.S. political system.

To the editors of The New York Times, the ruling “strikes at the heart of democracy” by having “paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.”

The court was split, 5-4, with the four reactionary judges (misleadingly called “conservative”) joined by Justice Anthony M. Kennedy. Chief Justice John G. Roberts Jr. selected a case that could easily have been settled on narrow grounds and maneuvered the court into using it to push through a far-reaching decision that overturns a century of precedents restricting corporate contributions to federal campaigns.

Now corporate managers can in effect buy elections directly, bypassing more complex indirect means. It is well-known that corporate contributions, sometimes packaged in complex ways, can tip the balance in elections, hence driving policy. The court has just handed much more power to the small sector of the population that dominates the economy.

Political economist Thomas Ferguson’s “investment theory of politics” is a very successful predictor of government policy over a long period. The theory interprets elections as occasions on which segments of private sector power coalesce to invest to control the state.

The Jan. 21 decision only reinforces the means to undermine functioning democracy.

The background is enlightening. In his dissent, Justice John Paul Stevens acknowledged that “we have long since held that corporations are covered by the First Amendment”—the constitutional guarantee of free speech, which would include support for political candidates.

In the early 20th century, legal theorists and courts implemented the court’s 1886 decision that corporations—these “collectivist legal entities”—have the same rights as persons of flesh and blood.

This attack on classical liberalism was sharply condemned by the vanishing breed of conservatives. Christopher G. Tiedeman described the principle as “a menace to the liberty of the individual, and to the stability of the American states as popular governments.”

Morton Horwitz writes in his standard legal history that the concept of corporate personhood evolved alongside the shift of power from shareholders to managers, and finally to the doctrine that “the powers of the board of directors “are identical with the powers of the corporation.” In later years, corporate rights were expanded far beyond those of persons, notably by the mislabeled “free trade agreements.” Under these agreements, for example, if General Motors establishes a plant in Mexico, it can demand to be treated just like a Mexican business (“national treatment”)—quite unlike a Mexican of flesh and blood who might seek “national treatment” in New York, or even minimal human rights.

A century ago, Woodrow Wilson, then an academic, described an America in which “comparatively small groups of men,” corporate managers, “wield a power and control over the wealth and the business operations of the country,” becoming “rivals of the government itself.”

In reality, these “small groups” increasingly have become government’s masters. The Roberts court gives them even greater scope.

The Jan. 21 decision came three days after another victory for wealth and power: the election of Republican candidate Scott Brown to replace the late Sen. Edward M. Kennedy, the “liberal lion” of Massachusetts. Brown’s election was depicted as a “populist upsurge” against the liberal elitists who run the government.

The voting data reveal a rather different story.

High turnouts in the wealthy suburbs, and low ones in largely Democratic urban areas, helped elect Brown. “Fifty-five percent of Republican voters said they were `very interested’ in the election,” The Wall St. Journal/NBC poll reported, “compared with 38 percent of Democrats.”

So the results were indeed an uprising against President Obama’s policies: For the wealthy, he was not doing enough to enrich them further, while for the poorer sectors, he was doing too much to achieve that end.

The popular anger is quite understandable, given that the banks are thriving, thanks to bailouts, while unemployment has risen to 10 percent.

In manufacturing, one in six is out of work—unemployment at the level of the Great Depression. With the increasing financialization of the economy and the hollowing out of productive industry, prospects are bleak for recovering the kinds of jobs that were lost.

Brown presented himself as the 41st vote against healthcare—that is, the vote that could undermine majority rule in the U.S. Senate.

It is true that Obama’s healthcare program was a factor in the Massachusetts election. The headlines are correct when they report that the public is turning against the program.

The poll figures explain why: The bill does not go far enough. The Wall St. Journal/NBC poll found that a majority of voters disapprove of the handling of healthcare both by the Republicans and by Obama.

These figures align with recent nationwide polls. The public option was favored by 56 percent of those polled, and the Medicare buy-in at age 55 by 64 percent; both programs were abandoned.

Eighty-five percent believe that the government should have the right to negotiate drug prices, as in other countries; Obama guaranteed Big Pharma that he would not pursue that option.

Large majorities favor cost-cutting, which makes good sense: U.S. per capita costs for healthcare are about twice those of other industrial countries, and health outcomes are at the low end.

But cost-cutting cannot be seriously undertaken when largesse is showered on the drug companies, and healthcare is in the hands of virtually unregulated private insurers—a costly system peculiar to the U.S.

The Jan. 21 decision raises significant new barriers to overcoming the serious crisis of healthcare, or to addressing such critical issues as the looming environmental and energy crises. The gap between public opinion and public policy looms larger. And the damage to American democracy can hardly be overestimated.

Noam Chomsky is Institute Professor & Professor of Linguistics (Emeritus) at the Massachusetts Institute of Technology, and the author of dozens of books on U.S. foreign policy. He writes a monthly column for The New York Times News Service/Syndicate.
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Free Speech for Corporations

There was a very informative Bill Moyers Journal segment last Friday about the Supreme Court decision. His guests on this segment were "Monica Youn, an attorney at NYU School of Law's Brennan Center for Justice, and Zephyr Teachout, a professor at Fordham School of Law."

The whole episode is worth watching (http://www.pbs.org/moyers/journal/01292010/watch.html) or reading (http://www.pbs.org/moyers/journal/01292010/transcript1.html), but I'll focus on the portion concerning the hypocrisy of Chief Justice Roberts, concerning his testimony at his confirmation hearings regarding the conservative litmus test of "judicial activism:"

BILL MOYERS: The decision seems at odds with some of the very positions taken by some of the people who wrote it. I mean, for example, we've heard a lot from conservatives about "judicial activism." That is, judges, liberal judges, Earl Warren and others, actually making decisions that usurp the power of the legislature. So, let me play you an excerpt from Roberts' nomination hearings, when he is talking about judicial activism.

JOHN ROBERTS: Judges and justices are servants of the law, not the other way around...Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath...I do think that it is a jolt to the legal system when you overrule a precedent...it is not enough that you may think the prior decision was wrongly decided...the role of the judge is limited; that judge is to decide the cases before them; they're not to legislate; they're not to execute the laws."

Not only did the Chief Justice reach out to overturn precedent, he also went way beyond the case before him:

BILL MOYERS: Is that what he was doing last week?

MONICA YOUN; Absolutely not. This started out as a case about a very narrow issue. It's, is this 90 minute infomercial attacking Hillary Clinton, is this a corporate campaign ad or is it not a corporate campaign ad? And what the court did is they said, "Well, you know, we could rule on that question, but instead let's talk about this entire topic of whether corporate spending in elections should be limited."

BILL MOYERS: In other words, that question was not in the case, that the judges reached out and brought to the court.

ZEPHYR TEACHOUT: It was not only not in the case, but the parties stipulated [Stipulation: Something stipulated, especially a term or condition in an agreement between parties to a lawsuit.] that they wouldn't have to deal with these questions. And the judges reached out. The justices reached out and decided to make this statement of their view of corporate independent expenditures.

MONICA YOUN; And this is so disturbing, because one reason that, in that clip, the chief justice is paying, you know, homage to the idea of judicial modesty is people recognize that in this system judges are given a great deal of power. Judges can not only say, "Oh, what you did, Congress, was wrong. But forever more, you are barred from doing anything like that again. That option is completely off the table now." But the way that's limited in our constitutional system is that judges are only supposed to decide the particular case in front of them. They're not going to -- they're not supposed to say, "Oh, we don't like that particular area of the law. Let's just go out and change that, just because we have the five votes to do so." And I can think of very little more scary for our democracy than a five, you know, justice majority that finds itself unconstrained by precedent. That finds itself unconstrained by the case before it. And feels like it can just go out there and pursue its own agenda.

ZEPHYR TEACHOUT: This case did overrule established precedent. It dealt with an issue which could have been dealt with on several different minor grounds. Much, much narrower grounds. And this -- these laws against corporate expenditures came after massive public response to what they perceived to be corruption in the system. Passed by Congress with enormous amounts of support. And there are times when justices should get involved. And say, "No, no, no. There is a minority here that is not being protected. There are interests that the public isn't hearing." But here the justices were not reaching out to protect an unheard minority, but rather to protect one of the loudest voices we already have in our politics.

Other Tidbits:

MONICA YOUN; Well, corporations clearly won this decision. I mean, essentially, what the court does is it awards monopoly power over the First Amendment to corporations. You can think about the last couple of elections as, you know, the slow rise of the grassroots. And as a result, the political parties, for the first time, had an incentive to start reaching out to small donors, to start cultivating grassroots organizing networks. And you saw what happened in the last election. Now, what the Supreme Court has done here is really a power play. It takes power away from the grassroots, and it puts it squarely back in the hands of corporate special interests.

It threatens to make these grassroots networks irrelevant. To say, you know, it's no longer going to be worthwhile for, you know, parties to look for fundraising opportunities, $20, $100, even $2,400 at a time, if they can just have multimillion dollar support directly from corporate treasuries.

ZEPHYR TEACHOUT: This decision, at base, is about power. And that's why people are responding. That's why people from left and right are responding. This decision means that when you walk past a sign that says Goldman Sachs or Ford, that, what that represents has the same rights that you do to speak about politics, to spend as much money as you want on a political campaign. They are basically equal, and treated as equal entities, even though you're the citizen. That's why there's a really deep grassroots response, is there's a sense that power, political power, is being taken away from the citizen, which is really a core idea of this country.

BILL MOYERS: By permitting corporations to use their own, the money from their own treasuries to advocate for or against a candidate? So, that diminishes the power of the individual?

MONICA YOUN; Well, what the Supreme Court has said by equating money with speech, what the Supreme Court has said is that elections aren't really about votes anymore. What elections are now going to be about is money and who has the most money. And an individual citizen saying, "I can't possibly compete with Wal-Mart, with Exxon Mobil, with Goldman Sachs," is just going to say, "Why should I even bother? My voices will never, my voice will never be heard. My elected official is not going to listen to me. I should just stay home."

BILL MOYERS: But if I understand the decision, it doesn't enable the chairman of Exxon Mobil, or the chairman of GE to write a check to Zephyr Teachout, who's running for Congress from Vermont. It says she can spend as much money as they want to, in the, right up to the election. Right? Advocating that you be elected or defeated?

ZEPHYR TEACHOUT: Yeah. Or, what happens more likely is candidates getting threatened and encouraged. It's a much subtler form of corruption. Where your mind shifts to say, "Well, do I really want to take on that financial transaction tax if I know that Goldman Sachs is going to do an ad campaign?"

MONICA YOUN; And I think that the threat is going to be even more of an important weapon than direct, you know, "Vote for so and so who we like."

BILL MOYERS: How do you mean?

MONICA YOUN; I think there's going to be a threat of corporate funded attack ads against elected officials who dare to stand up to corporate interests. Corporations have basically been handed a weapon. And when you walk into a negotiation, and you know that one person is armed and is able to use a weapon against you, they don't have to take out that weapon. They don't have to even brandish it. You know that they have it. And every elected official who goes up against an agenda on regulatory reform, on climate change, on health care, will know that the corporation who, you know, he or she is opposing, can fund a, you know, a $100 million ad campaign to take him or her out.

Also, on the Unions vs Corporations distraction:

BILL MOYERS: Well, proponents of this ruling point out that unions are also freed up by the decision. Have they created a level playing field here between the corporations and the unions?

MONICA YOUN; Well, the short answer to that is that if you compare unions' available funds versus corporation's available funds, we're not talking about a real fight here. But I think the more important fight is why should the only people whose viewpoints count in this, be large organizations with money? Whether that be the unions or the corporations? Why shouldn't ideas be dealt with on their merits? And why shouldn't ideas be dealt with by the number of votes they can command, as opposed to the amount of dollars they can spend?
___________________

Articles in Support of the Decision:

Glenn Greenwald [One of my favorite bloggers]:

What the Supreme Court got right
BY GLENN GREENWALD

http://www.salon.com/news/opinion/glenn_greenwald/2010/01/22/citizens_united/index.html

The Supreme Court yesterday, in a 5-4 decision, declared unconstitutional (on First Amendment grounds) campaign finance regulations which restrict the ability of corporations and unions to use funds from their general treasury for "electioneering" purposes. The case, Citizens United v. FEC, presents some very difficult free speech questions, and I'm deeply ambivalent about the court's ruling. There are several dubious aspects of the majority's opinion (principally its decision to invalidate the entire campaign finance scheme rather than exercising "judicial restraint" through a narrower holding). Beyond that, I believe that corporate influence over our political process is easily one of the top sicknesses afflicting our political culture. But there are also very real First Amendment interests implicated by laws which bar entities from spending money to express political viewpoints.

I want to begin by examining several of the most common reactions among critics of this decision, none of which seems persuasive to me. Critics emphasize that the Court's ruling will produce very bad outcomes: primarily that it will severely exacerbate the problem of corporate influence in our democracy. Even if this is true, it's not really relevant. Either the First Amendment allows these speech restrictions or it doesn't. In general, a law that violates the Constitution can't be upheld because the law produces good outcomes (or because its invalidation would produce bad outcomes).

One of the central lessons of the Bush era should have been that illegal or unconstitutional actions -- warrantless eavesdropping, torture, unilateral Presidential programs -- can't be justified because of the allegedly good results they produce (Protecting us from the Terrorists). The "rule of law" means we faithfully apply it in ways that produce outcomes we like and outcomes we don't like. Denouncing court rulings because they invalidate laws one likes is what the Right often does (see how they reflexively and immediately protest every state court ruling invaliding opposite-sex-only marriage laws without bothering to even read about the binding precedents), and that behavior is irrational in the extreme. If the Constitution or other laws bar the government action in question, then that's the end of the inquiry; whether those actions produce good results is really not germane. Thus, those who want to object to the Court's ruling need to do so on First Amendment grounds. Except to the extent that some constitutional rights give way to so-called "compelling state interests," that the Court's decision will produce "bad results" is not really an argument.

More specifically, it's often the case that banning certain kinds of speech would produce good outcomes, and conversely, allowing certain kinds of speech produces bad outcomes (that's true for, say, White Supremacist or neo-Nazi speech, or speech advocating violence against civilians). The First Amendment is not and never has been outcome-dependent; the Government is barred from restricting speech -- especially political speech -- no matter the good results that would result from the restrictions. That's the price we pay for having the liberty of free speech. And even on a utilitarian level, the long-term dangers of allowing the Government to restrict political speech invariably outweigh whatever benefits accrue from such restrictions.

I'm also quite skeptical of the apocalyptic claims about how this decision will radically transform and subvert our democracy by empowering corporate control over the political process. My skepticism is due to one principal fact: I really don't see how things can get much worse in that regard. The reality is that our political institutions are already completely beholden to and controlled by large corporate interests (Dick Durbin: "banks own" the Congress). Corporations find endless ways to circumvent current restrictions -- their armies of PACs, lobbyists, media control, and revolving-door rewards flood Washington and currently ensure their stranglehold -- and while this decision will make things marginally worse, I can't imagine how it could worsen fundamentally. All of the hand-wringing sounds to me like someone expressing serious worry that a new law in North Korea will make the country more tyrannical. There's not much room for our corporatist political system to get more corporatist. Does anyone believe that the ability of corporations to influence our political process was meaningfully limited before yesterday's issuance of this ruling?

I'm even more unpersuaded by the argument -- seen in today's New York Times Editorial -- that this decision will "ensure that Republican candidates will be at an enormous advantage in future elections." What evidence is there for that? Over the past five years, corporate money has poured far more into the coffers of the Democratic Party than the GOP -- and far more into Obama's campaign coffers than McCain's (especially from Wall Street). If anything, unlimited corporate money will be far more likely to strengthen incumbents than either of the two parties (and unlimited union spending, though dwarfed by corporate spending, will obviously benefit Democrats more). Besides, if it were the case that this law restricts the ability of Republicans far more than Democrats to raise money in election cycles, doesn't that rather obviously intensify the First Amendment concerns?

Then there's the always intellectually confused discussions of stare decisis and precedent. It's absolutely true that the Citizens United majority cavalierly tossed aside decades of judicial opinions upholding the constitutionality of campaign finance restrictions. But what does that prove? Several of the liberals' most cherished Supreme Court decisions did the same (Brown v. Bd. of Education rejected Plessy v. Ferguson; Lawrence v. Texas overruled Bowers v. Hardwick, etc.). Beyond that, the central principle which critics of this ruling find most offensive -- that corporations possess "personhood" and are thus entitled to Constitutional (and First Amendment) rights -- has also been affirmed by decades of Supreme Court jurisprudence; tossing that principle aside would require deviating from stare decisis every bit as much as the majority did here. If a settled proposition of law is sufficiently repugnant to the Constitution, then the Court is not only permitted, but required, to uproot it.

Ultimately, I think the free speech rights burdened by campaign finance laws are often significantly under-stated. I understand and sympathize with the argument that corporations are creatures of the state and should not enjoy the same rights as individuals. And one can't help but note the vile irony that Muslim "War on Terror" detainees have been essentially declared by some courts not to be "persons" under the Constitution, whereas corporations are.

But the speech restrictions struck down by Citizens United do not only apply to Exxon and Halliburton; they also apply to non-profit advocacy corporations, such as, say, the ACLU and Planned Parenthood, as well as labor unions, which are genuinely burdened in their ability to express their views by these laws. I tend to take a more absolutist view of the First Amendment than many people, but laws which prohibit organized groups of people -- which is what corporations are -- from expressing political views goes right to the heart of free speech guarantees no matter how the First Amendment is understood. Does anyone doubt that the facts that gave rise to this case -- namely, the government's banning the release of a critical film about Hillary Clinton by Citizens United -- is exactly what the First Amendment was designed to avoid? And does anyone doubt that the First Amendment bars the government from restricting the speech of organizations composed of like-minded citizens who band together in corporate form to work for a particular cause?

What is overlooked in virtually every discussion I've seen over the last 24 hours is how ineffective these campaign finance laws are. Large corporations employ teams of lawyers and lobbyists and easily circumvent these restrictions; wealthy individuals and well-funded unincorporated organizations are unlimited in what they can spend. It's the smaller non-profit advocacy groups whose political speech tends to be most burdened by these laws. Campaign finance laws are a bit like gun control statutes: actual criminals continue to possess large stockpiles of weapons, but law-abiding citizens are disarmed.

In sum, there's no question that the stranglehold corporations exert on our democracy is one of the most serious and pressing threats we face. I've written volumes on that very problem. Although I doubt it, this decision may very well worsen that problem in some substantial way. But on both pragmatic and Constitutional grounds, the issue of corporate influence -- like virtually all issues -- is not really solvable by restrictions on political speech. Isn't it far more promising to have the Government try to equalize the playing field through serious public financing of campaigns than to try to slink around the First Amendment -- or, worse, amend it -- in order to limit political advocacy?

There are few features that are still extremely healthy and vibrant in the American political system; the First Amendment is one of them, and the last thing we should want is Congress trying to limit it through amendments or otherwise circumvent it in the name of elevating our elections. Meaningful public financing of campaigns would far more effectively achieve the ostensible objectives of campaign finance restrictions without any of the dangers or constitutional infirmities. If yesterday's decision provides the impetus for that to be done, then it will have, on balance, achieved a very positive outcome, even though that was plainly not its intent.

UPDATE: I want to add one other point just to underscore how irrational, discriminatory and ineffective these political speech restrictions are. The invalidated statute at issue here exempted media corporations -- such as Fox and MSNBC -- from these restrictions, since the Government obviously can't ban media figures from going on television and opining on elections (the way they do all other corporations). But as Eliot Spitzer noted when urging the Supreme Court to strike down this law (h/t David Sirota), what possible justification is there for allowing News Corp. and GE to say whatever they want about our elections while banning all other corporations (including non-profit advocacy groups) from doing so?

As an elected official who often tangled with wealthy corporations, I recognize that there is a superficial appeal in the prospect of being able to silence their political voices. Of course that is precisely why the First Amendment protects them and why I find myself sympathetic to the First Amendment absolutists in this case. What distinguishes what Citizens United did and what Bill O'Reilly on Fox News -- Rachel Maddow on MSNBC -- does every day? Fox and MSNBC are corporations bombarding the airwaves with political rhetoric, from the right and left, that is as close to "electioneering communications" as anything I can imagine. The McCain-Feingold statute excluded "media companies" from its limitations, a distinction that makes no logical sense. The constitutionality of Citizens United's speech should have nothing to do with what else may or may not go on at the corporation it is part of.

That's what restrictions on political speech almost always do: whether intended or not, they favor the views of certain factions while suppressing others. In this case, it allowed the views of News Corp., GE, and Viacom to flourish (through their ownership of media outlets) while preventing the ACLU and Planned Parenthood from speaking out. As Spitzer said: that is precisely why the First Amendment bars such government efforts to restrict political speech. It is virtually always best -- and Constitutionally mandated -- for the Government to stay out of the business of trying to restrict and regulate political advocacy.

UPDATE II: For those who believe that "money is not speech," I'd be interested in your answers to these questions.

As for the question of whether corporations possess "personhood," that's an interesting issue and, as I said, I'm very sympathetic to the argument that they do not, but the majority's ruling here did not really turn on that question. That's because the First Amendment does not only vest rights in "persons." It says nothing about "persons." It simply bans Congress from making any laws abridging freedom of speech.
____________________________

Follows the article, forwarded by my friend, by James Taranto of the Wall Street Journal, the neoliberal [Neoliberal definition from Wiki: "Broadly speaking, neoliberalism seeks to transfer part of the control of the economy from public to the private sector, under the belief that it will produce a more efficient government and improve the economic health of the nation. (http://en.wikipedia.org/wiki/Neoliberalism) ]" media outlet of Wall Street and corporate America. Yes, those are the people who brought you the bailouts and took the country into economic collapse!

James Taranto's partial bio, according to Wikipedia:
http://en.wikipedia.org/wiki/James_Taranto

James Taranto (born 1966) is an American columnist for The Wall Street Journal and editor of its online editorial page, OpinionJournal.com. He is best known for his daily online column, entitled Best of the Web Today, in which he links to and comments on news stories and Web sites submitted by readers. He also appears occasionally on Journal Editorial Report.

Most of Taranto's commentary is politically oriented and conservative/neoliberal in perspective. He lambastes various public figures and organizations, from John Kerry, often described as "the haughty, French-looking Massachusetts Democrat, who by the way served in Vietnam," to Reuters, for which he uses headlines with excessive use of quotes in mockery of the service's overuse of scare quotes.

Taranto comments occasionally on topics of special interest to him such as the Roe effect (which proposes that parents who support abortion rights will have fewer children, causing support for abortion rights and politically liberal causes to decline among young people) in his column and also wrote an article[1] about it.

Taranto attended California State University, Northridge, but "never bothered to graduate"[2] after clashing with the journalism faculty over free speech and filing a lawsuit against them. [3]

Floyd Abrams is presented in the article by the college drop-out as "The pre-eminent First Amendment expert ," but there is some disagreement on this. Perhaps he should be seen as a person who promotes free speech at any cost, even the loss of popular democracy:

From Wiki (http://en.wikipedia.org/wiki/Floyd_Abrams):

Floyd Abrams (born July 9, 1936) is an American attorney at Cahill Gordon & Reindel. He is an expert on constitutional law, and many arguments in the briefs he has written before the United States Supreme Court have been adopted as United States Constitutional interpretative law as it relates to the First Amendment and free speech. He is the William J. Brennan Jr. Visiting Professor at the Graduate School of Journalism at Columbia University. Abrams argued for The New York Times and Judith Miller in the CIA leak grand jury investigation. Abrams joined Cahill Gordon & Reindel in 1963, and became a partner in 1970.

Abrams earned his undergraduate degree from Cornell University in 1956, and his Juris Doctor from Yale Law School in 1960. He is Jewish and lives in New York City with wife Efrat. Together they have a son, Dan Abrams of MSNBC, and a daughter, Ronnie Abrams. He is a member of the Constitution Project's Liberty and Security Committee[3] and a patron of the Media Legal Defence Initiative.
. . . .
Criticism

In a column on Slate entitled Memo to Cooper and Miller: Fire Floyd Abrams. Hire Bruce Sanford, Jack Schafer felt Abrams's First Amendment argument was weaker than others' on behalf of the reporters in the Valerie Plame affair. Judges David Sentelle and David Tatel "manhandled" Abrams during the December 8, 2004 oral arguments before the appeals court. In the majority opinion, Judge Sentelle found Abrams' assertion that a First Amendment privilege protects Matthew Cooper and Judith Miller from the subpoena to lack merit. They ordered both reporters to talk to the grand jury about their confidential sources or face jail for contempt, which Miller ultimately did. "Maybe a First Amendment legend isn't what this case called for in the first place," said Shafer. "Maybe Cooper and Miller would have been better served by having a criminal lawyer who knows how to bargain." Shafer thought Abrams would never be successful at the Supreme Court: "...my guess is that they won't [agree to hear the case] if it's argued on First Amendment grounds, preferring to let their Branzburg precedent stand."

"As a narrative matter, [Speaking Freely] fails to explain how exactly Floyd Abrams, revered champion of speech, could possibly have lost the [McCain-Feingold] case. The answer, for those readers left puzzled by Abrams's account, is not merely that the arguments on the other side that soft money created the indelible appearance of a corrupt political system were immeasurably stronger than he allows; they were also presented masterfully by the solicitor general's office, led by Theodore B. Olson, and by lawyers for the congressional sponsors of the campaign-finance bill, led by Olson's Democratic predecessor, Seth P. Waxman. Indeed, much of the real story behind how McCain-Feingold came to be upheld is that Abrams and Starr were simply outperformed as lawyers. It may be asking too much to expect Abrams to tell that particular story." Benjamin Wittes, The Washington Post's Book World.

Anyway, here is Tananto's article in the WSJ:

OPINION: THE WEEKEND INTERVIEWJANUARY 30, 2010
The Media and Corporate Free Speech
President Obama says the Supreme Court made a big mistake. The pre-eminent First Amendment expert disagrees.
By JAMES TARANTO

http://online.wsj.com/article/SB10001424052748704094304575029791336276632.html#printMode

New York

I met Floyd Abrams the other evening at the midtown Manhattan headquarters of a multibillion-dollar corporation that a few days earlier had exercised its First Amendment rights to argue that corporations do not have First Amendment rights. I came to the New York Times Co. building not to look in on the competition, but to see the celebrated First Amendment lawyer speak on a panel about press freedom.

Mr. Abrams has represented the New York Times Co. from time to time, most notably in the landmark Pentagon Papers case of 1971. But he and his erstwhile client took opposite sides in the decision we had gotten together to discuss. Citizens United v. Federal Election Commission, which the court decided last week in a 5-4 decision, invalidated federal laws that made certain political speech a crime.

Although Citizens United wasn't Mr. Abrams's case, "I took a special pleasure . . . in this ruling," he tells me over drinks following the panel. That's because it overturned a 2003 decision in a case he lost, McConnell v. FEC, in which a 5-4 majority upheld provisions of the 2002 McCain-Feingold law, including one that criminalized corporate funding of "electioneering communication" within 30 days of a primary or 60 days of a general election. Seven years later, with Justice Samuel Alito in the majority, the court reversed that holding.

The First Amendment is the lifeblood of the press. Yet most newspapers—the one you are reading is a notable exception—take an editorial position similar to that of the Times. Why? "I think that two things are at work," Mr. Abrams says. "One is that there are an awful lot of journalists that do not recognize that they work for corporations. . . .

"A second is an ideological one. I think that there is a way of viewing this decision which . . . looks not at whether the First Amendment was vindicated but whether what is simply referred to as, quote, democracy, unquote, was vindicated. My view is, we live in a world in which the word 'democracy' is debatable . . . It is not a word which should determine interpretation of a constitution and a Bill of Rights, which is at its core a legal document as well as an affirming statement of individual freedom," he says. "Justice Potter Stewart . . . warned against giving up the protections of the First Amendment in the name of its values. . . . The values matter, the values are real, but we protect the values by protecting the First Amendment."

A third factor surely is that McCain-Feingold exempted media corporations from its strictures against electioneering. Under this regime, free speech was not a constitutional right but a privilege granted by Congress to companies like those that own the Times and the Journal, but denied to other businesses, labor unions and nonprofit advocacy corporations.

One such group is Citizens United, which produced "Hillary: The Movie," a harshly critical 90-minute documentary. It sued when the FEC denied it permission to broadcast the film via on-demand cable during the 2008 presidential primaries. "Here is a very committed, very conservative entity that does a film attacking then-Sen. Hillary Clinton when she seemed likely to be nominated for president by the Democratic Party," Mr. Abrams says. "I ask myself: Well, isn't it obvious that that sort of speech must be protected by the First Amendment? And then I hear in response to that, 'Well, they could have used a PAC. Or they could have put the film out farther away from the election. Or they could have refrained from taking any money from any corporate grantor.'

"And my reaction is sort of a John McEnroe: You cannot be serious! We're talking about the First Amendment here, and we're being told that an extremely vituperative expression of disdain for a candidate for president is criminal in America?"

Another corporation whose speech was chilled by McCain-Feingold was the American Civil Liberties Union. In his 2005 book, "Speaking Freely: Trials of the First Amendment," Mr. Abrams reports that during the 2004 campaign, the ACLU "broadcast advertisements denouncing the Patriot Act but refrained, as McCain-Feingold required, from criticizing (or even mentioning) President Bush as it did so." Writing for the court in Citizens United, Justice Anthony Kennedy noted that if the ACLU "creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech," it would be guilty of a felony under McCain-Feingold.

Yet even though the ACLU filed a friend-of-the-court brief urging the justices to rule as they did, its Web site has been silent on the decision. Last weekend the ACLU's board met to consider reversing its longstanding opposition to limits on corporate political speech. Mr. Abrams was invited to make a case against the proposed turnabout.

On the other side was Burt Neuborne, a law professor at New York University. "Professor Neuborne argued that the potential for social harm due to the expenditure of large sums by corporate America was dangerous and worse—that it cannot be tolerated," Mr. Abrams recounts. "I argued that the ACLU had been right all these years in its position. I also pointed out that outsiders might think it a bit fickle for them to change their position days after they had achieved one of the great civil-liberties victories in recent years.

"And I said to them: Look, you bring cases, such as one to strike down a law of Congress which was aimed at 'virtual child pornography'—not real children being filmed, but otherwise wholly pornographic. . . . I said: You didn't do it because you wanted to protect the folks who like to watch child pornography. You did it because you thought the government shouldn't be trusted to make content decisions about who watches anything, and because you thought the principle of avoiding governmental control over what is available on the Internet was so strong."

That case, Ashcroft v. Free Speech Coalition, went to the Supreme Court. As in Citizens United, the ACLU's position prevailed in a decision written by Justice Kennedy in 2002. But in Ashcroft he was joined by the four liberal justices rather than the conservatives.

Mr. Abrams says that after he pointed this out to the ACLU board, "I warned that I thought the worst thing the ACLU could do is to become just another liberal public-interest group." The board left the question unresolved pending further study.

Mr. Abrams defends corporate free speech on practical grounds as well, arguing that there is no evidence it causes social harm. Federal regulations do not apply to campaigns for state and local office, and "over half the states have allowed unlimited expenditures and contributions by corporations and unions for a number of years. We haven't seen any explosion of corporate domination or union domination of the political landscape." Nor are states without limits more corruption-prone than those with them.

In Mr. Abrams's view, Citizens United advances rather than hinders democracy: "We want, for example, more Gene McCarthys and Ross Perots and individuals to come upon the scene and have a chance to build a war chest and go on out and try to reform the country as they think best."

McCarthy—the antiwar Minnesota senator whose surprising strength in the 1968 New Hampshire primary prompted Lyndon B. Johnson's retirement—was directly bankrolled by a few wealthy donors. That would be illegal today. The high court upheld restrictions on campaign contributions in Buckley v. Valeo (1976). Although such rules were not at issue in Citizens United, Justice Kennedy made clear that Buckley is still good law because unlimited donations create "the potential for quid pro quo corruption."

To Mr. Abrams, this a reasonable distinction: "I think there's room for more governmental involvement with respect to contributions, because there, I think, there is a greater risk of something in the order of quid pro quo corruption. . . . As of right now, the court has struck the balance pretty well."

Yet if there's no evidence from the states that unlimited contributions encourage corruption, isn't there a strong case for overturning Buckley too? Mr. Abrams demurs: "It's a serious argument, and there's no doubt that it raises First Amendment issues. But my reaction is that where we are now is pretty much where we ought to wind up."

He also rejects my suggestion that judicial liberals have become less supportive of free speech in recent decades. "Very few people are really supportive of free speech, whether they're liberals or conservatives," he says. "The First Amendment for many years played the role, when it triumphed in the courts, of protecting the speech of people who tended to be on the left—so it was minorities or the powerless in our society. The liberals on the Supreme Court today would still protect those people and their rights . . . What's changed is that conservatives found some causes which they have used to vindicate genuine First Amendment rights." He says that Justice Kennedy stands "all by himself on the court" as "the single most consistently protective jurist of First Amendment rights."

Mr. Abrams points out that the first restrictions on corporate and union political speech—overturned along with McCain-Feingold in Citizens United—were part of the Taft-Hartley Act of 1947, a measure that aimed at curtailing labor's power. Taft-Hartley "was vetoed by Harry Truman on the ground that it violated the First Amendment," but the Republican-controlled Congress overrode the veto.

That's a cautionary tale for anyone who seeks advantage by restricting the freedom of others—including media corporations that supported McCain-Feingold because they were exempt from it. If corporations have no First Amendment rights, it is dubious to suggest that media corporations do have such rights.

"The decision in Citizens United provides significant protection for the press in the future," says Mr. Abrams. "The press cannot depend, and indeed ought not depend, upon the largess of Congress to exempt it from regulations on speech that affect the rest of American society. I'm a strong believer not only in protecting the press, but that the press has been the instrumentality which has helped to establish broad protections for all of us through the years."

An example is the 1966 case of Mills v. Alabama, in which the Supreme Court overturned a state law similar to McCain-Feingold except that it applied to the press. A Birmingham editor had been convicted under the Alabama Corrupt Practices Act for publishing an Election Day editorial favoring a local ballot measure.

The law's "electioneering" ban applied only on Election Day, a much narrower restriction than McCain-Feingold's 30- and 60-day limits. The state said the law's purpose was to prevent social harm, namely "confusive last-minute charges and countercharges . . . when, as a practical matter, because of lack of time, such matters cannot be answered or their truth determined until after the election is over."

There was an argument, too, that citizens needed protection from aggregations of power. As Mr. Abrams notes, "many cities, especially small towns, had only one newspaper, and it was the place from which people got most of their news." But "the Supreme Court said unanimously . . . that the notion that a newspaper should be kept from publishing what it wanted to publish—even just one day of the year, even for a supposedly good cause—was alien to this country."

Like any good lawyer, Mr. Abrams can argue in the alternative. I pose a hypothetical: Suppose that Citizens United had gone the other way, that Congress subsequently abolished the media exemption, and that a newspaper corporation hired him to argue that it does have First Amendment rights, even if other corporations do not. How would he make the case? Again he cites Justice Stewart, who held the view that "the institutional press was the only entity set forth in the Bill of Rights as deserving of special protection." Accordingly, Mr. Abrams says, "I would argue . . . that because of the role of the press, it was unconstitutional . . . to bar the press from doing everything it now does."

Later he notes that Citizens United, having been decided 5-4, could be reversed if the court's makeup changes. "I really might have that case one of these days," he says with a chuckle. That would be a supreme irony—especially if his client, once again, was the New York Times Co.

Mr. Taranto, a member of The Wall Street Journal's editorial board, writes the Best of the Web Today column for OpinionJournal.com.

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For responses to this article, see:
Floyd Abrams on Citizens United
http://volokh.com/2010/02/02/floyd-abrams-on-citizens-united/

As for Abram's arguments that relate generally to this case, see:

Where Floyd Abrams has gone wrong: Hillary's case
By Frank X. Askin
September 08, 2009, 2:38PM
http://blog.nj.com/njv_frank_askin/2009/09/where_floyd_abrams_has_gone_wr.html

I have enormous respect for Floyd Abrams as a defender of free speech and the First Amendment dating back to the Pentagon Papers case.

But now Abrams is trying to defend the indefensible - the right of business corporations to use their shareholders' money to support (or oppose) candidates for public office.

That is the issue in the Citizens United case to be re-argued before the U.S. Supreme Court on Wednesday, Sept. 9. This involves the much-discussed "Hillary - the Movie," the unrelenting assault on the current Secretary of State prepared when she was still a candidate for President. There are a number of ways for the Court to dispose of the case itself without significantly affecting political campaign finance law. But the Court majority has decided to seize the occasion to reconsider long-standing doctrine which prohibits the use of corporate treasury funds to advocate electoral outcomes. Floyd Abrams is advocating such a change in the law, and he previewed his argument on this week's "Bill Moyers Journal" on public television.

Abrams appeared a bit uneasy about his own position as illustrated by his insistence on coupling his defense of corporate speech with that of labor unions - although union speech has nothing to do with this case and can quite easily be distinguished. Not once did Abrams mention corporate speech without adding "and unions."

First of all, the federal ban on corporate political contributions goes back 102 years to the Tillman Act, enacted by Congress in 1907 at the behest of President Teddy Roosevelt. A prohibition on union political spending was not enacted until the Taft-Hartley Act in 1947, passed by a Republican Congress over President Truman's veto on the theory that what is good for the corporate goose is also good for the labor gander.

But there is also a more fundamental distinction between corporate speech and union speech. Any union member forced to pay dues against his or her will (under a collective bargaining agreement) is entitled to reimbursement of any portion of those dues used for political purposes. Corporate shareholders have no similar right. Corporate managers decide which candidates to support or oppose without seeking advise of stockholders and without the latter having any recourse if they happen to support the other candidate. Presumably, a dissenting stockholder could sell the stock, but that is not a particularly viable option. Indeed, most of us have no idea in which stocks our IRAs and mutual funds are invested.

Furthermore, the main case Abrams wants the Supreme Court to overrule (Austin v. Michigan Chamber of Commerce) upheld a Michigan law which restricted only corporate speech and exempted labor unions. The Justices upheld the decision of the Michigan Legislature to do so.

Abrams also tried to hide behind the skirt of the ACLU, which he claimed fully supported his position in the Citizens United case. But the ACLU brief in the case specifically limited its argument to a different aspect of the case and did not call for the overruling of Austin.

Floyd Abrams insists that when the First Amendment forbids abridgement of speech, that includes corporate speech. But the fact is there is nothing in our Constitution to suggest that when the Founders spoke of We the People of the United States they had corporations in mind. Indeed, corporations are artificial entities created by the legislative branches of government and provided with certain economic benefits (such as limited liability) which allow them to amass huge treasuries. The legislatures which created these entities should also have the right to restrict what those entities can do with those amassed funds.
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Palestine: "This Time 'We' Went to Far" (Norman Finkelstein)

This Time We Went Too Far

By Norman Finkelstein
http://www.informationclearinghouse.info/article24580.htm

"Better than any other book, This Time We Went Too Far shows how the massive destruction visited on Gaza was not an accidental byproduct of the Israeli invasion but its barely concealed objective." — Raja Shehadeh, author, Palestinian Walks

For the Palestinians who live in the narrow coastal strip of Gaza, the December 2008 Israeli invasion was a nightmare of unimaginable proportions: in the 22-day-long action 1,400 Gazans were killed, several hundred on the first day alone. More than 6,000 homes were destroyed or badly damaged. The cost of the destruction and disruption of economic life, in one of the worlds poorest areas, is estimated at more than $3 billion.



And yet, while nothing should diminish recognition of Palestinian suffering through these frightful days, it is possible something redemptive will emerge from the tragedy of Gaza. For, as Norman Finkelstein details, in a concise work that melds cold anger with cool analysis, the profound injustice of the Israeli assault has been widely recognized by organizations impossible to brand as partial or extremist.



Amnesty International, Human Rights Watch, and the UN investigation headed by Richard Goldstone, in documenting Israel's use of indiscriminate and intentional force against the civilian population during the invasion (100 Palestinians died for every one Israeli), have had an impact on traditional support for Israel. Jews in both the United States and the United Kingdom, for instance, are beginning to voice dissent, and this trend is especially apparent among the young.



Such a shift, Finkelstein contends, can result in new pressure capable of moving the Middle East crisis towards a solution, one that embraces justice for Palestinians and Israelis alike. The seeds of hope were thus sown in the bitter anguish of Gaza. This Time We Went Too Far, written with Finkelsteins customary acuity and precision, will surely advance the process it so eloquently describes.



Norman G. Finkelsteins books include Beyond Chutzpah, The Holocaust Industry, A Nation on Trial and Image and Reality of the Israel-Palestine Conflict.

[Finkelstein's] place in the whole history of writing history is assured. — Raul Hilberg, author, The Destruction of the European Jews

http://www.informationclearinghouse.info/article24580.htm


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Israeli Commander: 'We Rewrote the Rules of War for Gaza'

Civilians 'put at greater risk to save military lives' in winter attack - revelations that will pile pressure on Netanyahu to set up full inquiry
http://www.informationclearinghouse.info/article24583.htm
http://www.independent.co.uk/news/world/middle-east/exclusive-israeli-commander-we-rewrote-the-rules-of-war-for-gaza-1887627.html
By Donald Macintyre in Jerusalem

February 03, 2010 "The Independent" -- A high-ranking officer has acknowledged for the first time that the Israeli army went beyond its previous rules of engagement on the protection of civilian lives in order to minimise military casualties during last year's Gaza war, The Independent can reveal.

The officer, who served as a commander during Operation Cast Lead, made it clear that he did not regard the longstanding principle of military conduct known as "means and intentions" – whereby a targeted suspect must have a weapon and show signs of intending to use it before being fired upon – as being applicable before calling in fire from drones and helicopters in Gaza last winter. A more junior officer who served at a brigade headquarters during the operation described the new policy – devised in part to avoid the heavy military casualties of the 2006 Lebanon war – as one of "literally zero risk to the soldiers".

The officers' revelations will pile more pressure on Israeli Prime Minister Benjamin Netanyahu to set up an independent inquiry into the war, as demanded in the UN-commissioned Goldstone Report, which harshly criticised the conduct of both Israel and Hamas. One of Israel's most prominent human rights lawyers, Michael Sfard, said last night that the senior commander's acknowledgement – if accurate – was "a smoking gun".

Until now, the testimony has been kept out of the public domain. The senior commander told a journalist compiling a lengthy report for Yedhiot Ahronot, Israel's biggest daily newspaper, about the rules of engagement in the three-week military offensive in Gaza. But although the article was completed and ready for publication five months ago, it has still not appeared. The senior commander told Yedhiot: "Means and intentions is a definition that suits an arrest operation in the Judaea and Samaria [West Bank] area... We need to be very careful because the IDF [Israel Defence Forces] was already burnt in the second Lebanon war from the wrong terminology. The concept of means and intentions is taken from different circumstances. Here [in Cast Lead] we were not talking about another regular counter-terrorist operation. There is a clear difference."

His remarks reinforce testimonies from soldiers who served in the Gaza operation, made to the veterans' group Breaking the Silence and reported exclusively by this newspaper last July. They also appear to cut across the military doctrine – enunciated most recently in public by one of the authors of the IDF's own code of ethics – that it is the duty of soldiers to run risks to themselves in order to preserve civilian lives.

Explaining what he saw as the dilemma for forces operating in areas that were supposedly cleared of civilians, the senior commander said: "Whoever is left in the neighbourhood and wants to action an IED [improvised explosive device] against the soldiers doesn't have to walk with a Kalashnikov or a weapon. A person like that can walk around like any other civilian; he sees the IDF forces, calls someone who would operate the terrible death explosive and five of our soldiers explode in the air. We could not wait until this IED is activated against us."

Another soldier who worked in one of the brigade's war-room headquarters told The Independent that conduct in Gaza – particularly by aerial forces and in areas where civilians had been urged to leave by leaflets – had "taken the targeted killing idea and turned it on its head". Instead of using intelligence to identify a terrorist, he said, "here you do the opposite: first you take him down, then you look into it."

The Yedhiot newspaper also spoke to a series of soldiers who had served in Operation Cast Lead in sensitive positions. While the soldiers rejected the main finding of the Goldstone Report – that the Israeli military had deliberately "targeted" the civilian population – most asserted that the rules were flexible enough to allow a policy under which, in the words of one soldier "any movement must entail gunfire. No one's supposed to be there." He added that at a meeting with his brigade commander and others it was made clear that "if you see any signs of movement at all you shoot. This is essentially the rules of engagement."

The other soldier in the war-room explained: "This doesn't mean that you need to disrespect the lives of Palestinians but our first priority is the lives of our soldiers. That's not something you're going to compromise on. In all my years in the military, I never heard that."

He added that the majority of casualties were caused in his brigade area by aerial firing, including from unmanned drones. "Most of the guys taken down were taken down by order of headquarters. The number of enemy killed by HQ-operated remote ... compared to enemy killed by soldiers on the ground had absolutely inverted," he said.

Rules of engagement issued to soldiers serving in the West Bank as recently as July 2006 make it clear that shooting towards even an armed person will take place only if there is intelligence that he intends to act against Israeli forces or if he poses an immediate threat to soldiers or others.

In a recent article in New Republic, Moshe Halbertal, a philosophy professor at Hebrew and New York Universities, who was involved in drawing up the IDF's ethical code in 2000 and who is critical of the Goldstone Report, said that efforts to spare civilian life "must include the expectation that soldiers assume some risk to their own lives in order to avoid causing the deaths of civilians". While the choices for commanders were often extremely difficult and while he did not think the expectation was demanded by international law, "it is demanded in Israel's military code and this has always been its tradition".

The Israeli military declined to comment on the latest revelations, and directed all enquiries to already-published material, including a July 2009 foreign ministry document The Operation in Gaza: Factual and Legal Aspects.

That document, which repeats that Israel acted in conformity with international law despite the "acute dilemmas" posed by Hamas's operations within civilian areas, sets out the principles of Operation Cast Lead as follows: "Only military targets shall be attacked; Any attack against civilian objectives shall be prohibited. A 'civilian objective' is any objective which is not a military target." It adds: "In case of doubt, the forces are obliged to regard an object as civilian."

Yedhiot has not commented on why its article has not been published.

Israel in Gaza: The soldier's tale

This experienced soldier, who cannot be named, served in the war room of a brigade during Operation Cast Lead. Here, he recalls an incident he witnessed during last winter's three-week offensive:

"Two [Palestinian] guys are walking down the street. They pass a mosque and you see a gathering of women and children.

"You saw them exiting the house and [they] are not walking together but one behind the other. So you begin to fantasise they are actually ducking close to the wall.

"One [man] began to run at some point, must have heard the chopper. The GSS [secret service] argued that the mere fact that he heard it implicated him, because a normal civilian would not have realised that he was now being hunted.

"Finally he was shot. He was not shot next to the mosque. It's obvious that shots are not taken at a gathering."
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Patty Griffin at Floores in Helotes, TX 28 April 2009

[Sensitive, cerebral, troubled and melancholy--one of America's premier song writers and "Songbirds!"]

Useless Desires, also on the Impossible Dream album (The album was professionally recorded and about, say, 3619 times better!)



"Useless Desires"

Say goodbye to the old street
That never cared much for you anyway
The different-colored doorways
You thought would let you in one day
Goodbye to the old bus stop, frozen and waiting
The weekend edition has this town way overrated

You walk across a baseball field
The grass has turned to straw
A flock of birds tries to fly away from where you are
Goodbye, goodbye, goodbye old friend
I can't make you stay
I can't spend another ten years
Wishing you would anyway

How the sky turns to fire against a telephone wire
And even I'm getting tired of useless desires

Every day I take a bitter pill that gets me on my way
For the little aches and pains
The ones I have from day to day
To help me think a little less about the things I miss
To help me not to wonder how I ended up like this

I walk down to the railroad track and ride a rusty train
With a million other faces I shoot through the city veins
Goodbye, goodbye, goodbye old friend
You wanted to be free
Somewhere beyond the bitter end is where I want to be

How the sky turns to fire against a telephone wire
And even I'm getting tired of useless desires

Say goodbye to the old building
That never tried to know your name
Goodbye, goodbye, goodbye old friend
You won't be seeing me again
Goodbye to all the windowpanes shining in the sun
Like diamonds on a winter day
Goodbye, goodbye to everyone

How the sky turns to fire against a telephone wire
Burns the last of the day down
And I'm the last one hangin' around
Waiting on a train track, and the train never comes back
And even I'm getting tired of useless desires
_____________________________

Grateful Dead--"Ripple"



If my words did glow with the gold of sunshine
And my tunes were played on the harp unstrung,
Would you hear my voice come thru the music,
Would you hold it near as it were your own?

It's a hand-me-down, the thoughts are broken,
Perhaps they're better left unsung.
I don't know, don't really care
Let there be songs to fill the air.

Ripple in still water,
When there is no pebble tossed,
Nor wind to blow.

Reach out your hand if your cup be empty,
If your cup is full may it be again,
Let it be known there is a fountain,
That was not made by the hands of men.

There is a road, no simple highway,
Between the dawn and the dark of night,
And if you go no one may follow,
That path is for your steps alone.

Ripple in still water,
When there is no pebble tossed,
Nor wind to blow.

You who choose to lead must follow
But if you fall you fall alone,
If you should stand then whos to guide you?
If I knew the way I would take you home.

La dee da da da, la da da da da, da da da, da da, da da da da da
La da da da, la da da, da da, la da da da, la da, da da.