[Peace-discuss] Spot the fascist

[C. G. Estabrook]

[Hartmann, a well-known liberal, has got this just backwards.  He seriously 
contends that it is fascism NOT to ban some speech, such as this TV program on 
Hillary! McCain-Feingold was always a bad law, clearly in conflict with the 
First Amendment, but the courts have taken their time in saying so.  (We 
attacked it when I ran for Congress as a Green.) The solution to the effect of 
corporate money in politics is not to ban it but to make it unnecessary: i.e., 
confiscate some property of some large corporations -- media air time -- and 
make it available for free to candidates (all of them).  Let a hundred flowers 
bloom, a thousand schools of thought contend. Let them say what they want about 
Hillary (no matter who made the movie), and let real Socialists talk about 
whether Obama is one -- on TV, for free.  As to "too-big-to-fail" corporations, 
they should be taken over and run in the public interest -- just what Obama was 
unwilling to do with the banks and GM. After all, he's working for the people 
who profit from them.  And you're not challenging them much by violating the 
free speech rights of people who want to be nasty about Hillary -- but you are 
establishing a principle that could be considered fascist... --CGE]


	Published on Monday, July 6, 2009 by CommonDreams.org
	Fascism Coming to a Court Near You
	Corporate Personhood and the Roberts' Court
	by Thom Hartmann

As the 1983 American Heritage Dictionary noted, fascism is: "A system of 
government that exercises a dictatorship of the extreme right, typically through 
the merging of state and business leadership, together with belligerent 
nationalism."

Get ready.

Last year a right-wing group put together a 90-minute hit-job on Hillary 
Clinton, and wanted to run it on TV stations in strategic states.  The Federal 
Election Commission ruled that the "documentary" was actually a "campaign ad" 
and thus fell under the restrictions on campaign spending of McCain-Feingold, 
and thus stopped it from airing. (Corporate contributions to campaigns have been 
banned repeatedly and in various ways since 1907 when Teddy Roosevelt pushed 
through the Tillman Act.)

Citizens United, the right-wing group, sued the Supreme Court, with right-wing 
hit man and former Reagan solicitor general Ted Olson as their lead lawyer.

This new case, Citizens United v. Federal Election Commission, presents the best 
opportunity for the Roberts Court to use its five vote majority to totally 
re-write the face of politics in America, rolling us back to the pre-1907 era of 
the Robber Barons.

As Jeffrey Toobin wrote in The New Yorker ("No More Mr. Nice Guy"): "In every 
major case since he became the nation's seventeenth Chief Justice, Roberts has 
sided with the prosecution over the defendant, the state over the condemned, the 
executive branch over the legislative, and the corporate defendant over the 
individual plaintiff. Even more than Scalia, who has embodied judicial 
conservatism during a generation of service on the Supreme Court, Roberts has 
served the interests, and reflected the values, of the contemporary Republican 
Party."

And the only way the modern Republican Party can recover their power over the 
next decade is to immediately clear away all impediments to unrestrained 
corporate participation in electoral politics.  If a corporation likes a 
politician, they can make sure he or she is elected every time; if they become 
upset with a politician, they can carpet-bomb her district with a few million 
dollars worth of ads and politically destroy her.

And it looks like that's exactly what the Roberts Court is planning.  In the 
Citizens United case, they asked for it to be re-argued in September of this 
year, going all the way back to the 1980s and re-examining the rationales for 
Congress to have any power to regulate corporate "free speech."

As Robert Barnes wrote in The Washington Post on June 30, 2009, "Citizens 
United's attorney, former solicitor general Theodore B. Olson, had told the 
court that it should use the case to overturn the corporate spending ban the 
court recognized in Austin v. Michigan Chamber of Commerce, as well as its 
decision in 2003 to uphold McCain-Feingold as constitutional."

The setup for this came in June of 2007, in the case of the Federal Election 
Commission v. Wisconsin Right To Life, in which the Roberts Court ruled that the 
FEC couldn't prevent WRTL from running ads just because they were a corporation.

"A Moroccan cartoonist," Justice Scalia opened his opinion with his usual 
dramatic flair,  "once defended his criticism of the Moroccan monarch (lèse 
majesté being a serious crime in Morocco) as follows: ‘I'm not a revolutionary, 
I'm just defending freedom of speech. I never said we had to change the king-no, 
no, no, no! But I said that some things the king is doing, I do not like. Is 
that a crime?'"

"Well," Scalia wrote, "in the United States (making due allowance for the fact 
that we have elected representatives instead of a king) it is a crime, at least 
if the speaker is a union or a corporation (including not-for-profit 
public-interest corporations)... That is the import of §203 of the Bipartisan 
Campaign Reform Act of 2002 (BCRA)."

The idea of Congress passing laws that limited corporate "free speech" was 
clearly horrifying to Scalia.  He went after the 1990 Austin v. Michigan Chamber 
of Commerce case, in which the MCC was limited in their "free speech" in a 
political campaign because they were a corporation.

"This (Austin) was the only pre-McConnell case in which this Court had ever 
permitted the Government to restrict political speech based on the corporate 
identity of the speaker," he complained.  "Austin upheld state restrictions on 
corporate independent expenditures," and, God forbid, "The statute had been 
modeled after the federal statute that BCRA §203 amended..."

The Austin case, Scalia concluded his opinion with four others nodding, "was a 
significant departure from ancient First Amendment principles. In my view, it 
was wrongly decided."

Scalia also quoted at length from opinions in the Grosjean v. American Press Co 
case, "holding that corporations are guaranteed the ‘freedom of speech and of 
the press, safeguarded by the due process of law clause of the Fourteenth 
Amendment,'" and from the 1986 Pacific Gas & Elec. Co. v. Public Util. Comm'n of 
Cal. case: "The identity of the speaker is not decisive in determining whether 
speech is protected"; "[c]orporations and other associations, like individuals, 
contribute to the ‘discussion, debate, and the dissemination of information and 
ideas' that the First Amendment seeks to foster."

The bottom line, for Scalia, was that, "The principle that such advocacy is ‘at 
the heart of the First Amendment's protection' and is ‘indispensable to decision 
making in a democracy' is ‘no less true because the speech comes from a 
corporation rather than an individual."

Continuing to quote from a plurality opinion in Pacific Gas, Scalia "rejected 
the arguments that corporate participation ‘would exert an undue influence on 
the outcome of a referendum vote'; that corporations would ‘drown out other 
points of view' and ‘destroy the confidence of the people in the democratic 
process..."

He even quoted an opinion in the Grossjean case, writing that "corporations are 
guaranteed the ‘freedom of speech and of the press...safeguarded by the due 
process of law clause of the Fourteenth Amendment.'"

The Fourteenth Amendment, which says that no "person" shall be denied "equal 
protection of the laws," was promulgated after the Civil War to free the slaves. 
  But corporations have long asserted that because it says "person" rather than 
"natural person" it included giving, in 1868 when the Amendment was ratified 
into law, full Constitutional rights under the Bill of Rights to corporations. 
(Corporations are, at law, known as "artificial persons" and humans are "natural 
persons" - both have to have some sort of "personhood" in order to pay taxes, 
sue and be sued, etc.)

As Scalia wrote in his opinion in FEC v. Wisconsin Right To Life:  "...FECA was 
directed to expenditures not just by ‘individuals,' but by ‘persons,' with 
‘persons' specifically defined to include ‘corporation[s].'"

Chief Justice Roberts weighed in, too, in the main decision.  It's a fascinating 
decision to read - and search for occurrences of the word "corporation" - and 
here's one of Roberts' more convoluted observations in defense of corporate free 
speech rights:

Accepting the notion that a ban on campaign speech could also embrace issue 
advocacy would call into question our holding in Bellotti that the corporate 
identity of a speaker does not strip corporations of all free speech rights. It 
would be a constitutional ‘bait and switch' to conclude that corporate campaign 
speech may be banned in part because corporate issue advocacy is not, and then 
assert that corporate issue advocacy may be banned as well, pursuant to the same 
asserted compelling interest, through a broad conception of what constitutes the 
functional equivalent of campaign speech, or by relying on the inability to 
distinguish campaign speech from issue advocacy.

Bottom line - corporate free speech rights are Real Rights that Must Be Respected.

Justice Souter wrote a rather frightening dissent (this was a 5-4 decision, with 
the usual right-wing suspects on the "5" side): "Finally, it goes without saying 
that nothing has changed about the facts. In Justice Frankfurter's words, they 
demonstrate a threat to ‘the integrity of our electoral process, which for a 
century now Congress has repeatedly found to be imperiled by corporate, and 
later union, money: witness the Tillman Act, Taft-Hartley, FECA, and BCRA.

"McConnell was our latest decision vindicating clear and reasonable boundaries 
that Congress has drawn to limit ‘the corrosive and distorting effects of 
immense aggregations of wealth,' and the decision could claim the justification 
of ongoing fact as well as decisional history in recognizing Congress's 
authority to protect the integrity of elections from the distortion of corporate 
and union funds.

"After today, the ban on contributions by corporations and unions and the 
limitation on their corrosive spending when they enter the political arena are 
open to easy circumvention, and the possibilities for regulating corporate and 
union campaign money are unclear.

"The ban on contributions will mean nothing much, now that companies and unions 
can save candidates the expense of advertising directly, simply by running 
‘issue ads' without express advocacy, or by funneling the money through an 
independent corporation like Wisconsin Right To Life."

Sounding almost depressed, Souter closed his dissent with these words: "I cannot 
tell what the future will force upon us, but I respectfully dissent from this 
judgment today."

The attempt of corporations (and their lawyers, like Roberts was before 
ascending to a federal court) to usurp American democracy is nothing new, as 
David Souter well knew. Fascism has always been a threat to democracy.

In early 1944 the New York Times asked Vice President Wallace to, as Wallace 
noted, "write a piece answering the following questions: What is a fascist? How 
many fascists have we? How dangerous are they?"

Vice President Wallace's answers to those questions were published in The New 
York Times on April 9, 1944, at the height of the war against the Axis powers of 
Germany and Japan:

"The really dangerous American fascists," Wallace wrote, "are not those who are 
hooked up directly or indirectly with the Axis. The FBI has its finger on 
those... With a fascist the problem is never how best to present the truth to 
the public but how best to use the news to deceive the public into giving the 
fascist and his group more money or more power."

"American fascism will not be really dangerous," he added in the next paragraph, 
"until there is a purposeful coalition among the cartelists, the deliberate 
poisoners of public information..."

Noting that, "Fascism is a worldwide disease," Wallace further suggested that 
fascism's "greatest threat to the United States will come after the war" and 
will manifest "within the United States itself."

In his strongest indictment of the tide of fascism the Vice President of the 
United States saw rising in America, he added:

"They claim to be super-patriots, but they would destroy every liberty 
guaranteed by the Constitution. They demand free enterprise, but are the 
spokesmen for monopoly and vested interest. Their final objective toward which 
all their deceit is directed is to capture political power so that, using the 
power of the state and the power of the market simultaneously, they may keep the 
common man in eternal subjection."

Finally, Wallace said, "The myth of fascist efficiency has deluded many people. 
... Democracy, to crush fascism internally, must...develop the ability to keep 
people fully employed and at the same time balance the budget. It must put human 
beings first and dollars second. It must appeal to reason and decency and not to 
violence and deceit. We must not tolerate oppressive government or industrial 
oligarchy in the form of monopolies and cartels."

As Wallace's President, Franklin D. Roosevelt, said when he accepted his party's 
renomination in 1936 in Philadelphia:

"...Out of this modern civilization, economic royalists [have] carved new 
dynasties.... It was natural and perhaps human that the privileged princes of 
these new economic dynasties, thirsting for power, reached out for control over 
government itself. They created a new despotism and wrapped it in the robes of 
legal sanction.... And as a result the average man once more confronts the 
problem that faced the Minute Man...."

Speaking indirectly of the fascists that Wallace would directly name almost a 
decade later, Roosevelt brought the issue to its core:

"These economic royalists complain that we seek to overthrow the institutions of 
America. What they really complain of is that we seek to take away their power."

But, he thundered in that speech:

"Our allegiance to American institutions requires the overthrow of this kind of 
power!"

In just a few months, we may again stand at the same crossroad Roosevelt and 
Wallace confronted during the Great Depression and World War II. Fascism is 
rising in America, this time calling itself "compassionate conservatism," and 
"the free market" in a "flat" world.  The point of its spear is "corporate 
personhood" and "corporate free speech rights."

The Roberts' Court's behavior - if this prediction of their goal for this fall 
is accurate (and it's hard to draw any other conclusion) - now eerily parallels 
the day in 1936 when Roosevelt said: "In vain they seek to hide behind the flag 
and the Constitution. In their blindness they forget what the flag and the 
Constitution stand for."

Thom Hartmann (thom at thomhartmann.com) is a Project Censored Award-winning New 
York Times best-selling author, and host of a nationally syndicated daily 
progressive talk program The Thom Hartmann Show. www.thomhartmann.com His most 
recent books are "The Last Hours of Ancient Sunlight," "Unequal Protection: The 
Rise of Corporate Dominance and the Theft of Human Rights," "We The People: A 
Call To Take Back America," "What Would Jefferson Do?," "Screwed: The Undeclared 
War Against the Middle Class and What We Can Do About It," and "Cracking The 
Code: The Art and Science of Political Persuasion." His newest book is 
Threshold: The Crisis of Western Culture.

  http://www.commondreams.org/view/2009/07/06-0