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This 1876 cartoon by Thomas Nast which ran in Harper's Weekly originally referred to the disputed presidential election a month earlier. Sadly, it may also depict one potential outcome of last week's Supreme Court decision.

I hope we shall... crush in [its] birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country. —Thomas Jefferson, letter to George Logan, 1816

Of last week’s two domestic temblors—the Massachusetts vote on Tuesday and the Supreme Court’s ruling on Thursday—the second is the one that should really be giving us night sweats. The Court’s Unfab Five (Roberts, Alito, Scalia, Thomas, and Kennedy) landed a devastating blow to the body politic and to the entire concept of popular sovereignty. I told a friend that as a practical matter, we might just dispense with our costly House and Senate and simply treat the Business Roundtable and the Conference Board as our two federal legislative chambers. And the same is true at the state level: Citizens United v. Federal Election Commission also invalidates most current state restrictions on corporate spending to advance or defeat particular candidates. It will trigger a torrent of ugly litigation until those state restrictions give way.

Many of us once deplored Bush v. Gore as giving effective judicial sanction to a Republican coup d’etat; however, Citizens United is not merely court-sanctioned, but court-engineered, amounting to a judicial coup d’etat executed in behalf of the already-ascendant money power in our society. Noting that this ruling will likely benefit Republicans much more than Democrats is really beside the point; the point—the well-sharpened and deadly point—is that Citizens United will vastly strengthen the hand of the predatory class to call the tune for politicians across the political spectrum. Much more illuminating than the lead coverage in Friday’s New York Times was the sidebar by David Kirkpatrick: “Lobbies’ New Power: Cross Us, And Our Cash Will Bury You.”

Justice John Paul Stevens’ dissent (joined by Justices Breyer, Ginsburg, and Sotomayor) was both pungent and melancholy: an elegy, really, for the old idea that money and the manipulation it buys are strongly antithetical to a healthy democratic public life. Particularly offensive in the majority’s ruling, written by Justice Kennedy, were the repeated references to congressional restrictions on corporate behavior vis-à-vis elections, as representing unconscionable and unconstitutional “censorship”—the majority clearly believing that private corporate money has an unrestricted First Amendment right not merely to speak but to shout down anyone who dares to challenge its primacy. Although corporations resemble the golem much more than they do living, breathing human beings, this court just invited the golem to take over democracy’s temple and to dance the night away at the public’s expense.

In mainstream media reporting, three alleged silver linings kept popping up: (1) the Court left in place restrictions on direct corporate contributions to candidates—i.e., they can only fund “independent” campaigning in behalf of particular candidates; (2) unions will likewise get to do direct campaigning without limits; and (3) corporations might hesitate to buy elections outright for fear of alienating shareholders. I say that the proper names for these so-called bright sides are rot, piffle, and balderdash: the “independence” of so-called independent campaign expenditures is known to be a complete fiction; American unions, battered down by a 40-year campaign to destroy their influence, have just a fraction of the money and juice that corporations enjoy; and please try to convince me that a company like Exxon-Mobil is going to worry a lot about alienating shareholders whose holdings stand to benefit handsomely from the work of a key Senatorial friend over here, or a compliant governor over there.

Remembering Babylon: That Gilded Age and This One

We should mark 1886 for its singular gift to the robber barons. This was the year in which the Supreme Court declared, in Santa Clara County, that corporations are persons under the meaning of the 14th Amendment. As David Korten writes of this very peculiar decision:

In the case of Santa Clara County v. Southern Pacific Railroad Company, the US 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 Waite simply pronounced at the outset 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 irony of the Court’s fully enfranchising private corporations at the very same time that it was systematically disenfranchising the actual persons the 14th Amendment was designed to help—African Americans—has not been lost on historians. Three years earlier, in 1883, the Court had invalidated the Civil Rights Act of 1875; ten years later in Plessy v. Ferguson, it would formally validate the infamous “separate but equal” doctrine.

Tags: 14th amendment, bob herbert, campaign finance, citizens united v. fec, corporations, david korten, gilded age, gladden, rauschenbusch, scotus, social gospel, supreme court

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