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Fascism Coming to a Court Near You; Corporate Personhood and the Roberts' Court

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Headlined to H2 7/6/09

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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."

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http://www.thomhartmann.com

Thom Hartmann is a Project Censored Award-winning New York Times best-selling author, and host of a nationally syndicated daily progressive talk program on the Air America Radio Network, live noon-3 PM ET. 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," "What Would Jefferson Do?," "Screwed: The Undeclared War (more...)
 
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Thanks for bringing the problems inherent in the i... by P. Orin Zack on Monday, Jul 6, 2009 at 10:13:51 AM
It's obvious that if we choose to save any part of... by William Cormier on Monday, Jul 6, 2009 at 2:00:17 PM
Do you realize what an incredibly bad selection Ju... by WML on Monday, Jul 6, 2009 at 6:14:10 PM
shouldn't corporations be taxed at a much higher r... by John Sanchez Jr. on Monday, Jul 6, 2009 at 5:52:47 PM
I don't remember the name the article was titled a... by William Cormier on Monday, Jul 6, 2009 at 9:45:38 PM