OPEN LETTER TO MEMBERS OF THE US SENATE JUDICIARY COMMITTEE
from the Program on Corporations, Law and Democracy (POCLAD)
July 14, 2009
Dear US Senate Judiciary Committee Members,
The Program on Corporations, Law and Democracy (POCLAD) calls on you to continue your questioning of US Supreme Court nominee Sonia Sotomayor. Judge Sotomayor's position on the larger issue of this nation's democracy, trampled by the rights and powers of corporations to govern, have so far been left untouched and unexplored in Senate confirmation hearings.
The vast majority of non-criminal cases to be brought before the nine robed ones of the Supreme Court in the next few years will relate to matters of corporate "rights," protections, and dominance and their impact on the rights of human beings in this so-called democracy. It is appropriate, therefore, that questions be asked concerning the doctrines of corporate autonomy and authority that insulate these collections of capital and property from control by the people and their legislatures a control that existed at one time in this nation.
Have the judiciary's efforts been so successful over the last 200 years to find corporations within the US Constitution and bestow constitutional "rights" upon them that current lawmakers fail even to question this democratic and illegitimate reality? Indeed, for two centuries Supreme Court justices, the closest institution we have to Kings and Queens, have been at the center of affirming and expanding corporate rule and placing corporations well beyond the authority of the people. We hope you do not concur with this history and its consequences.
We hope the questions on the following page are asked of nominee Sotomayor during her Senate hearings. Only after she responds to these concerns and her answers promptly made available to the general public and to all U.S. Senators should voting on her confirmation occur. It should be noted that these questions were the same that we requested be put to Judge Samuel Alito during his January, 2006 confirmation hearings. To our knowledge, none of them were asked.
The appointment for life of a person who will assume a position of vast and seemingly ever growing power in our society demands an exhaustive review of every issue area that he/she is likely to address on the high court. Corporate constitutional rights and their impact on our rights as self-governing human beings certainly qualify as one such area of questioning. This decision is of the utmost importance to the fate of the country.
The Program on Corporations, Law and Democracy
Questions for Supreme Court Justice Nominee Sonia Sotomayer
Quotes from Previous Supreme Court Decisions and Justices on Corporations
Questions for Supreme Court Nominee Sonia Sotomayor
First a bit of background. In a 1978 case, First National Bank of Boston v. Bellotti, the Supreme Court decided, 5 to 4, that business corporations -- just as flesh and blood like you and me -- have a First Amendment right to spend their money to influence elections. Chief Justice William H. Rehnquist dissented. "It might reasonably be concluded," he wrote, "that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere." The late Chief Justice went on to write: "Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist."
-- Do you believe that corporate money in our elections poses "special dangers in the political sphere"?
--Do you believe "that liberties of political expression" are necessary "to effectuate the purposes for which States permit commercial corporations to exist"?"
-- Do you believe that money is speech? Or is it property?
In 1886, only eighteen years after the people ratified the Fourteenth Amendment, the Supreme Court had before it Santa Clara County v. Southern Pacific Railroad. The issue was whether the Amendment's guarantee of equal protection barred California from taxing property owned by a corporation differently from property owned by a human being. Chief Justice Morrison Waite disposed of it with a bolt-from-the-blue pronouncement: "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 any person the equal protection of the laws, applies to these corporations. We are all of the opinion that it does." The conferring of Fourteenth Amendment rights on the corporate form appeared in a clerk's headnote to the case.
-- Was the "person" whose basic rights the framers and the people sought to protect through the 14th amendment to the Constitution the newly freed slave?
-- Was the "person" a corporation?
-- Is a corporation a person "born or naturalized in the United States"?
-- In proclaiming a paper entity to be a person, was the court faithful to the intent of the framers of the Amendment and to the intent of the people who ratified it?
-- How would you characterize the court's refusal to hear argument in a momentous case before deciding it?
--Would you describe the court's action in Santa Clara as conservative? As radical? As open-minded?
-- Would you characterize the Court's Santa Clara action as being an example of judicial activism?
Quotes from Previous Supreme Court Decisions and Justices on Corporations
Standard Oil of New Jersey v. United States, 221 U.S. 1 (1911):
All who recall the condition of the country in 1890 will remember that there was everywhere, among the people generally, a deep feeling of unrest. The nation had been rid of human slavery-- fortunately, as all now feel--but the conviction was universal that the country was in real danger from another kind of slavery sought to be fastened on the American people: namely, the slavery that would result from aggregations of capital in the hands of a few individuals and corporations controlling, for their own profit and advantage exclusively, the entire business of the country, including the production and sale of the necessities of life.
Liggett Co. v. Lee 288 U.S. 517 (1933) (dissent by Justice Brandeis):
The prevalence of the corporation in America has led men of this generation to act, at times, as if the privilege of doing business in corporate form were inherent in the citizen; and has led them to accept the evils attendant upon the free and unrestricted use of the corporate mechanism as if these evils were the inescapable price of civilized life and, hence, to be borne with resignation. Throughout the greater part of our history, a different view prevailed. Although the value of this instrumentality in commerce and industry was fully recognized, incorporation for business was commonly denied long after it had been freely granted for religious, educational and charitable purposes. It was denied because of fear. Fear of encroachment upon the liberties and opportunities of the individual. Fear of the subjection of labor to capital. Fear of monopoly. Fear that the absorption of capital by corporations, and their perpetual life, might bring evils. . . There was a sense of some insidious menace inherent in large aggregations of capital, particularly when held by corporations.
Justice Brandeis warned ominously of the threat to democracy that justifies sovereign control of corporations:
Able and discerning scholars have pictured for us the economic and social results of thus removing all limitations upon the size and activities of business corporations and of vesting in their managers vast powers once exercised by stockholders--results not designed by the states and long unsuspected. . . . Through size, corporations, once merely an efficient tool employed by individuals in the conduct of private business, have become an institution--an institution which has brought such concentration of economic power that so-called private corporations are sometimes able to dominate the state. The typical business corporation of the last century, owned by a small group of individuals, managed by their owners, and limited in size by their personal wealth, is being supplanted by huge concerns in which the lives of tens or hundreds of thousands of employees and the property of tens or hundreds of thousands of investors are subjected, through the corporate mechanism, to the control of a few men. Ownership has been separated from control; and this separation has removed many of the checks which formerly operated to curb the misuse of wealth and power. And as ownership of the shares is becoming continually more dispersed, the power which formerly accompanied ownership is becoming increasingly concentrated in the hands of a few. The changes thereby wrought in the lives of the workers, of the owners and of the general public, are so fundamental and far-reaching as to lead these scholars to compare the evolving "corporate system" with the feudal system; and to lead other men of insight and experience to assert that this "master institution of civilized life" is committing it to the rule of a plutocracy. Liggett, pp. 564-565.
First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) Dissents by Justices White, Brennan, Marshall
...the special status of corporations has placed them in a position to control vast amounts of economic power which may, if not regulated, dominate not only our economy but the very heart of our democracy, the electoral process... The State need not allow its own creation to consume it.