The recent Supreme Court decision (Citizens United v. Federal Elections Commission) declaring that limiting the free speech rights of corporations is unconstitutional, is a critical moment in the gradual erosion of our democratic process. This evaluation of the decision by Craig Barnes clarifies the debate and raises enough troubling concerns to encourage us all to engage in that debate. Mr Barnes is the author of Democracy at the Crossroads: Princes, Peasants, Poets, and Presidents in the Struggle for (and against) the Rule of Law, Fulcrum, 2009

Citizens United Evaluated

By Craig Barnes

On January 21st the Supreme Court of the United States issued an opinion that rocks the foundations of democracy and the assumptions about who governs in America. Citizens United v. Federal Elections Commission raises questions, doubts, and fears like no other decision in generations. It involved the attempt by a right wing group to distribute a political video that was highly critical of Hillary Clinton during the primary season of 2008. The FEC held that to show the film within 30 days of an election would be in violation of the long-standing rule against corporate spending. A federal district court heard a mountain of evidence concerning corruption and agreed with the FEC.

On January 21, 2010, the Supreme Court reversed, holding that this limit on corporate free speech was unconstitutional. Corporations, as much as persons who bleed and suffer, must be allowed to participate in America’s elections. Five conservative justices stated that as a matter of law corporate monies (a) will not distort the balance of power in elections, (b) will not give the appearance of corruption, and (c) will not deprive shareholders of their rights.

There was no controlling precedent upon which the five justices relied or could have done. Instead they acted upon their own motion to overrule a body of contrary precedents dating back to1908 and in the laws of 22 states. The net effect of unraveling all these precedents will be an upheaval in American election law, across the board.

Every first-year law student learns that precedents are binding. These five justices, to the contrary, explicitly held that precedents are not binding when they believe that those earlier cases were “not well reasoned.” The “not well reasoned” test is, sadly, no more than a “we don’t like it” test, and that now means that any legal precedent may be overruled whenever the Court changes hands, or, as the case may be, changes minds. This is not any longer the rule of law but becomes the rule of personalities. When personalities change, the law may change.

History tells us that when the law becomes the whim of personal opinion, kings and priests, presidents and commanders, corporations and aristocrats take over. That is the larger danger that these five justices have now ushered into American life. Government by large property interests will not be the same as government by the people.

In January 1776, Thomas Paine cried out against government by propertied interests in his famous pamphlet Common Sense. “Of more worth, he wrote, “is one honest man to society, ... than all the crowned ruffians that ever lived” and with those words Paine justified our separation not just from the king but from the domination of all those aristocratic interests in England. On January 21, 2010, however, with one decision, five justices (out of an American population of over 300 million) have acted to put the propertied interests back in control.

The result is more egregious because to get to this result the five justices did not follow traditional rules. To the contrary, one after the next, they violated rules that lawyers and courts have relied upon for generations:

They ignored the ancient principle of limiting constitutional decisions to matters presented by the case before them and instead made a general declaration of unlimited application not just to this case and these facts, but to any case of corporate speech. They thus implied that they will look skeptically upon any limit on corporate speech, whatsoever, in all possible alternate fact situations in the future. Such rulings of general application are rare and have been disapproved since the founding of the republic, in principle. These five disregarded that ancient principle.

They also, in an act of extreme self-confidence, made their own findings of fact concerning corruption and the appearance of corruption. They said there was no connection between massive corporate spending and the reality that legislation will thereby be influenced, and held to that effect in spite of mountains of congressional and lower court findings to the contrary. The five justices therefore substituted their own imagined findings for the actual findings by both congress and the lower court.

They said, out of the blue, that the public’s faith in the democratic process would not be affected by corporate spending. That one is a shocker.

To disregard the findings of fact of the lower court and to establish new findings out of thin air violates the first principle of appellate practice and threatens the integrity of all courts. Why bother presenting facts to the lower court, every litigant may now ask, if the Supreme Court can come up with its own facts and decide the case based upon ideology?

Further, if a corporation owned by sheiks of Saudi Arabia or Burundi, or even by Osama bin Laden, decides to invest billions in American elections, there is nothing in this decision to stop them. They did not just open the floodgates to AIG and the pharmaceuticals; they beckoned global corporations to play with American politics as well.

It does not end there. The five rejected the idea that shareholders who disapprove of a corporation’s political advertisements should be taken into account. One of us might favor health care reform, and we might own stock in, say, General Motors. But if General Motors opposes health care reform with millions of dollars of advertising our opinions are irrelevant. The five said that as far as they are concerned, shareholders’ money may be used to advance opinions with which thousands or millions of those shareholders disagree.

To overrule one hundred years of established law and alter the course of American politics is the height of judicial activism. That it should be accomplished by judges who held themselves out to the Congress and to the public as originalists or as devoted to the ideas of James Madison or Thomas Jefferson, or to the idea that the law should be above politics is to reveal either a deep cynicism or intellectual dishonesty. It cannot be claimed to be good lawyering, or required by precedent, or existing Supreme Court practice.

Not since Bush v. Gore when the Court selected a president has a decision seemed as political and not since Dred Scott in 1857 when the court declared slaves to be property and therefore not citizens or entitled to constitutional protection, has a decision reached as far into American culture as this will do.

These five justices have therefore now thrown down the gauntlet. They have proclaimed, in effect, that the rise of control by the propertied interests is to the long-term benefit of all Americans and is not to be restrained. From the public response since January 21st, it is clear that millions of Americans disagree. When president Obama singled out the Court in his State of the Union speech and castigated them for this decision he was met with ringing applause and a standing ovation by members of Congress who rose to their feet around the sitting, silent justices. Justice Samuel Alito, wagged his head in disbelief that a president should question his judgment but all around him, the galleries roared.

It may be well in the days to come for the five justices to realize that they have provoked the overwhelming disapproval of those who still believe in democracy. Some will suggest constitutional amendments. Some will suggest changing the nature of the court. Some will suggest legislation. The gauntlet is down. The Supreme Court has put itself on the front burner of American politics.

Santa Fe, February 1, 2010

.
And On The Economy . . .

There probably isn't an individual, family, business, or nation that has not been affected by the financial crisis. Many have lost their livelihoods, jobs, their homes, retirement savings and income. The whole financial system has been called into question. "Economy" comes from the Greek meaning "management of a housefold." Clearly, we are doing a poor job of that on an individual and planetary basis. Many thoughtful people are expressing opinions and plans about how to rebuild our economic system, beginning with reassessing our values and priorities so that the economy will serve the needs of all, as well as restore and sustain a healthy planet household. We have gathered some of these thoughts and suggested resources below.


WHEN ASKED if I am pessimistic or optimistic about the future, my answer is always the same: If you look at the science about what is happening on earth and aren't pessimistic, you don't understand data. But if you meet the people who are working to restore this earth and the lives of the poor, and you aren't optimistic, you haven't got a pulse. What I see everywhere in the world are ordinary people willing to confront despair, power, and incalculable odds in order to restore some semblance of grace, justice, and beauty to this world.

At present we are stealing the future, selling it in the present, and calling it gross domestic product. We can just as easily have an economy that is based on healing the future instead of stealing it. We can either create assets for the future or take the assets of the future. One is called restoration and the other exploitation. And whenever we exploit the earth we exploit people and cause untold suffering. Working for the earth is not a way to get rich, it is a way to be rich.

Excerpts from a commencement address by Paul Hawken at the University of Oregon


IN THE name of progress, in the name of development, we have been made to walk down the road of depending. Today all of America depends on something made in a factory somewhere in China. That kind of economy prevents everyone from making what they could make. And you lose quality, because self-making builds in caring. Self-making goes with wanting to put out the ultimate quality. Just as much as when you cook your own food, you will make sure you cook a good dish. Sacrifice quality, and cheap becomes the label for humanity’s essence.

If we are going to live in a world beyond the financial crisis, we’d better start doing things for ourselves, making things for ourselves, growing our food, making our homes, creating our education and health systems. Putting pressure on the state is fine, but ultimately I believe we need to go beyond the centralized state and centralized corporate control. We need to go into decentralized communities that reclaim the capacity to make.

Excerpts from an interview with Vandana Shiva, internationally-renowned advocate for sustainable development and social justice.


THE WORLD of financial stability, environmental sustainability, economic justice, and peace that most psychologically healthy people want is possible if we replace a defective operating system that values only money, seeks to monetize every relationship, and pits each person in a competition with every other for dominance.

The operating system of our phantom wealth economy was written by and for Wall Street interests for the sole purpose of making more money for people who have money. It makes cheap money readily available to speculators engaged in inflating financial bubbles and financing other predatory money scams. It makes money limited and expensive to those engaged in producing real wealth—life, and the things that sustain life—and pushes the productive members of society into indebtedness to those who produce nothing at all.

Money, the ultimate object of worship among modern humans, is the most mysterious of human artifacts: a magic number with no meaning or existence outside the human mind. Yet it has become the ultimate arbiter of life—deciding who will live in grand opulence in the midst of scarcity and who will die of hunger in the midst of plenty.

To get ourselves out of our current mess and create the world we want, we must reboot the economy with a new, value-based operating system designed to support social and environmental balance and the creation of real, living wealth.

David Korten, from his article, “The New Economy,” in YES! Magazine.


THE ECONOMIC engine now needs to be a green-industrial effort. This time we won’t be building a war machine {for WW II}. We’ll be building economic activity, investment and jobs for a sustainable future—from energy efficiency, mass transit, and sustainable agriculture to education, health, and fostering resilient communalities—making sure no one is left behind.

Our country made an industrial shift of these proportions for World War II, and we can do it again. What we can’t do is go back to the way it was before the current meltdown. We need to create the fundamental system change that embeds new priorities—a new economics, with a new green engine, that provides well-being for all.

Alisa Gravitz, executive director of Green America


YES! Magazine: People are fearful because the things that they thought they could count on—retirement, or a job, or the value of their house—turn out to be unreliable. How can we move away from a fear-based system at a time when people have the most reasons to be fearful?

REBECCA ADAMSON: This is where I think indigenous people really hold a key: In their economies, there is a general safety net for all. There is no homelessness or grinding poverty. There is a band of general affluence and well-being which no one falls below. We keep going into this paradigm of scarcity because fear is good for the capitalistic system. If you want to drive consumption, you’ve got to be fear based…The more you’re fearful, the more you go out and buy.

…Abundance comes not from stuff. In fact, stuff is an indication of non-abundance. Abundance is in the sacred; it is in the connection of love. We will find abundance through hard times when we find each other.

We can do this—we can rebuild the system so we no longer allow unfair practices or inequity. There is no such thing as a value-neutral economy. It’s not about a financial recovery; it’s about an economic rebuilding, and first and foremost, it’s about a moral rebuilding.

Rebecca Adamson, a Cherokee, is founder of First Nations Development Institute and First Peoples Worldwide. She is on the boards of the Corporation for Enterprise Development and the Calvert Social Investment Fund, and is an advisor to the United Nations on rural development.

Corporations Are Not Persons
(pass it on)