Thank You Supreme Court Justices; Roberts, Alito, Scalia, Thomas, and Kennedy

ThinkProgress » Big Oil Lobby Announces It Will Start Donating Directly To Candidates

Note: The Justices who voted in favor of Big Corporations against The American People in The Citizens United Ruling are:
Roberts
Alito
Scalia 
Thomas 
Kenned

Big Oil Lobby Announces It Will Start Donating Directly To Candidates

The American Petroleum Institute, the Big Oil industry’s chief lobbying organization, will start directly backing political candidates in the second quarter of this year. API, whose membership includes oil giants like Exxon-Mobil and Chevron, already spends tens of millions of dollars every year on lobbying, advertisements and Astroturf campaigns to support the the oil industry agenda. As CAP’s Dan Weiss wrote, API “wants to drill in fragile, sensitive places, keep government tax breaks, expand offshore drilling without reforms, and block global warming pollution reduction requirements.”

“This is adding one more tool to our toolkit,” Martin Durbin, API’s executive vice president for government affairs, told Bloomberg News. “At the end of the day, our mission is trying to influence the policy debate.” As Bloomberg pointed out, oil-supported political action committees like the Independent Petroleum Association of America overwhelmingly donate to Republican candidates.
According to the Center for Responsive Politics, API spent $6.7 million on lobbying alone last year, after clearing $7 million in 2009. In 2010, API was the seventh most prolific spender in the oil and gas industry, following ConocoPhillips, Chevron, Exxon-Mobil, Shell, Koch Industries and BP.
API’s turn toward direct political donations is doubly problematic because, in addition to acting as the industry’s chief lobbyists, the institute runs technical committees that set standards for the oil industry. In its official report, the commission that investigated the BP oil spill found that API was too “compromised” to be setting industry standards. “Because they would make oil and gas industry operations potentially more costly, API regularly resists agency rulemakings that government regulators believe would make those operations safer, and API favors rulemaking that promotes industry autonomy from government oversight,” the commission found. And this was before API established a political action committee!
In its proposed 2012 budget, the Obama administration suggested, once again, removing the billions in subsidies that taxpayers give oil companies every year. API has been at the forefront of the lobbying fight to preserve Big Oil’s subsidies, demonizing the removal of them as new “energy taxes,” even while admitting that cutting the subsidies and plowing the money back into clean energy technology would create “a lot more jobs.”

The Corrupt Supreme Court

Justice Clarence Thomas 'Hearts' Big Corporations




Supreme Court Corruption Grows with Clarence & Ginny Thomas, Samuel Alito

The Corrupt Supreme Court ~ The American People Don't Stand A Chance

Top 4 Victories Handed to Corporate America by the Supreme Court -- So Far
By Jim Hightower, Hightower Lowdown
February 19, 2011
http://www.alternet.org/story/149861/


One of the great works of American political literature is Ambrose Bierce's The Devil's Dictionary, first published in 1906. From A-Z, Bierce offered about a thousand irreverent definitions of political, legal, and cultural terms, getting much closer to the truth of what the words really mean than the formal definitions you'll find in Webster's. For example, consider this stinger: "LAWFUL, adj. Compatible with the will of a judge having jurisdiction."

A century later, Bierce's elucidation of the term pretty well nails the Roberts Court, the five-man junta of Chief Justice John Roberts and his fellow black-robed corporados on the Supreme Court: Sam Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas. For these extremist judicial activists, 'lawful' is whatever they will it to mean, even if their rulings defy logic, reality, the will of the people, the Founders' clear intentions, legal precedent, common sense, and any sane measure of justice.

While the executive and legislative branches of government receive constant (and often scathing) media scrutiny, the daily decrees of the judicial branch are given only sporadic and mostly superficial coverage. Yet, at the judiciary's highest level, the Roberts Court has become openly and aggressively political, deliberately rigging the scales of justice to enthrone big corporations -- the least democratic force in our society -- over the rest of us.

From behind the imposing marble walls of Washington's majestic Supreme Court building, this slim majority of five unelected, unaccountable government officials with lifelong tenure has been hurling bombs at our democracy. They've hit us with decision after decision enhancing the power of corporations at the direct expense of workers, consumers, local communities, our air and water, voters, the elderly, and... well, anyone and everyone who stands up in court to resist the rise of corporate hegemony in America.

[INTERESTING ASIDE: Teabag-wagging mad-as-hellers say that the overriding purpose of their uprising is to restore political authority to 'the people' by shrinking the intrusive power of an out-of-touch, big, bad federal government. So, where are they? You don't get bigger, badder, more intrusive, and more out of touch than having a cabal of federal judges operating from a secretive government bunker twisting the law of our land for the sole benefit of America's largest, self-serving corporations. The Supreme Court's corporate bloc has evolved into the most dangerous branch of the federal government, routinely using its arbitrary power to undermine the people's democratic authority over our country's economy, environment, and political process. But we hear not a peep about this from Tea Party leaders, or from such camp followers as Glenn Beck and Sarah Palin, and certainly not from the congressional Republican leaders who now purport to be the carriers of the teabag agenda. Curious, huh?]

The four biggest corporate hits of the Roberts Court

To comprehend the depths of this court's mendacity, we have to start with a rude fact: John Roberts lied.

When nominated by George W in 2005 to be America's top jurist, Roberts had to convince skeptical Senate Democrats that he would not be a partisan hack and/or a corporate shill who'd use his judicial gavel to hammer the law into shapes favored by the moneyed powers. The skepticism was richly deserved, for Roberts had long served corporations as a Washington lawyer (making him a millionaire) and had been a faithful GOP team player (including his legal work in 2000 to help George W wrest Florida and the presidency away from Al Gore).

Thus, to soothe the senators and charm the media, Roberts began his Senate confirmation hearing by drawing a folksy, Norman-Rockwellesque sports analogy to his judicial philosophy: "Judges are like umpires. Umpires don't make the rules. They apply them... They make sure everyone plays by the rules. But it's a limited role. Nobody ever went to a ballgame to see the umpire." He added that the distinguishing mark of his court would be one of "modesty and humility."

Roberts' entire confirmation performance was a pants-on-fire lie, but neither the Democrats nor the media called him on it. As a result, we were stuck with a chief justice who quickly forged a narrow 5-4 majority and went on a rampage of slash-and-burn judicial activism. By stomping on traditional principles of conservative jurisprudence, jettisoning clear Court precedents, perverting constitutional and statutory language, ignoring logic, distorting legislative intent, and simply making up laws, these Supremes have delivered a rash of sweeping victories to the corporate class, including these four top hits:

1. Lilly Ledbetter, 2007. For decades, Goodyear Tire & Rubber Co. had quietly been stiffing this longtime, loyal employee on her paycheck. A manager in the tire giant's Alabama plant, Ledbetter was unaware that she was being paid substantially less than her male counterparts -- a clear violation of federal anti-discrimination laws. Only learning of this maltreatment late in her career, Ledbetter sued Goodyear for the back pay she was owed. The corporation fought her all the way to the Supreme Court.
No go, ruled Roberts, Alito, Kennedy, Scalia, and Thomas. Under the statute, they sniffed, employees must file any bias suit within 180 days after the discrim-ination begins, and Ledbetter's suit had come 21 years after Goodyear started cheating her, so... tough luck, lady.

Forget heartless, this ruling was mindless. And needlessly picayune. Obviously, your honors, Ms. Ledbetter could not have filed within 180 days, since she didn't know she was being shorted! The honest way to interpret the statute would be that the 180-day limit begins after she became aware of the violation. But the Roberts Five were not looking for rationality, much less justice -- they were on a deliberate mission to rewrite and restrict the pay discrimination law for the benefit of corporate discriminators.

This decision sparked genuine public outrage, making it a flashpoint issue in the 2008 presidential race. Upon taking office in January 2009, Obama and the Democratic Congress pushed the Lilly Ledbetter Fair Pay Act into law, shoving the justices' corporate bias right back in their faces.

2. Making up law to help polluters, 2008. The catastrophic environmental and economic disaster caused in Alaska by the Exxon Valdez supertanker in 1989 resulted in a jury award of $5 billion to the local people who were harmed. The oil behemoth's battalion of lawyers, however, stalled pay- ment for years with various legal maneuvers, before getting a federal court of appeals to cut the sum in half. Still, despite the corporation's egregious malfeasance, Exxon pushed for an even sweeter deal, finally steering the case to the safe harbor of the Roberts Court.

In 2008, nearly 20 years after the disaster, another five-man majority led by Roberts slashed the damage award to $500 million, a mere tenth of the original jury assessment -- and less than two days worth of Exxon profits.
Actually, four of the justices tried to eliminate the award altogether, arguing that a corporation should not be responsible for the reckless acts of its own managers! They fell only one vote short of imposing this creative rewrite of corporate law on us. Nonetheless, the Roberts Court satisfied its impulse to legislate from the bench by dictating a new, corporate-pleasing formula for determining punitive damages under maritime law -- a formula not found in the statute and not intended by Congress -- thus making up a law to benefit polluters.

3. Binding the EPA, 2009. The fearless five took up their legislative pens once again in two cases involving the Clean Water Act. Under this law, electric power companies must use "the best technology available" to keep from harming fish and other aquatic life when they draw from the public waterways to cool their generators.

In an environmental lawsuit involving Entergy Corporation, a giant electric utility based in New Orleans, Louisiana, the RAKST quintet came out of right field to rule that the EPA should consider the cost to the power companies when evaluating "the best" environmental technologies. This generous gift to utilities was not included in the law by the legislative branch, so the five judicial branch activists thought- fully added it themselves.

Later that same year, they also diluted the Clean Water law by siding with a mining corporation named Couer Alaska. This outfit wanted to dump a waste product called "tailings" directly into lakes. The five (plus Justice Stephen Breyer this time) cheerfully decided that this pollution is okay, as long as the polluter holds an Army Corps of Engineers permit. Never mind that such dumping is expressly banned by EPA rules, the Supremes were on a roll.

4. The grandest giveaway of all, 2010. In January of last year, these five potentates of plutocracy issued a ruling that has caused a massively destructive tectonic shift in America's political process, thrusting mountains of corporate money high above the people's democratic power. The Lowdown has covered the impact and import of the now infamous Citizens United decree by the Court (see Lowdown issues September 2009 and March 2010). But it's important to add here that the Court's edict, which magically turned inanimate corporations into "persons" (with constitutionally protected electioneering 'rights' that make them politically superior to actual persons), is not only an absurd and intolerable overreach in logic, but also in process.

"Judicial activism" is way too tame a phrase for what Roberts & Company did here. This was a coup -- a plotted overthrow of the orderly judicial process in order to enthrone corporate political interests over all others.

In June 2009, the Court quietly reached into its caseload and plucked out an obscure case brought by Citizens United, a corporate-funded political front that was challenging a mundane point in federal election law. After hearing oral arguments in this ordinary case, the Roberts majority did something extraordinary: the justices arbitrarily altered the case that had been brought to them, completely rewriting Citizens United's complaint.

Instead of addressing the group's minor question, the Court issued an order for the parties to address whether unlimited and unreported sums of corporate money should be allowed in all US elections. In other words, these scoundrels in robes created their own case proposing a sweeping change in America's democratic system.

They then rushed to judgment, giving the lawyers involved only a single month to prepare arguments on this entirely new, momentous question. They also hurried the case to the front of the line, scheduling oral arguments on it in September, before the Court would normally be in session.

In January 2010, only seven months after they'd sprung their Citizens United surprise, the five issued their constitutional rewrite. It imposes their will (i.e., egos and personal ideological bias) over: (1) the clear intention of our Constitution's framers to keep corporations out of politics; (2) a century of settled congressional law banning corporate funds in elections; (3) the laws of 22 states that prohibit corporate spending in their elections; (4) many decades of the Court's own precedents affirming the wisdom of outlawing corporate electioneering cash; and (5) the overwhelming belief of the American people, that only humans, not corporations, should be election participants.

So, exercising exquisite judicial imperiousness, five judges decided that they're wiser than all of the above, unilaterally pulling off a sneak attack that, in the words of People For The American Way, amounts to the "constitutionalization of corporate political power."

The hits keep coming!

Unfortunately, the work of the Roberts Court has only begun. Corporate CEOs and their legal/political cohorts know that the scales of justice in the federal judiciary are now weighted in their favor. The selection of most judges gets almost no attention (much less opposition) from Congress, the media, and the public. This has allowed Reagan, Bush I, Clinton, and Bush II to slide hordes of corporatists onto the bench, from district courts through the Supremes. As a result, corporations are ever more inclined to run to court, where they are winning incremental and wholesale increases of corporate power over employees, environmentalists, and the rest of us.

Walmart. This retailing colossus is presently trying to weaken the ability of its mistreated workers to join together in class-action lawsuits. In the largest job bias case in US history, hundreds of thousands of women employees claim that Walmart discriminated against them in pay and promotion.

As individuals, they would not have the wherewithal to challenge one of the world's largest corporations, but by combining their grievances in a class action, they have a chance for justice. Against Walmart's vehement opposition, a court of appeals ruled last April that the ladies could band together.

In December, however, the Supremes came riding to the corporation's rescue. Seizing the case prematurely from lower courts and -- once again -- rewriting the question raised in the lawsuit, the Roberts Gang has taken jurisdiction. It will hear arguments this spring and is expected to rule in June on the fate and the future of class-action lawsuits.

AT&T. This one will affect anyone who (whether they know it or not) has a "mandatory arbitration" clause written into employment, consumer, or other contract with a corporation. These clauses restrict or even eliminate people's right to go to court if they're wronged by the corporation. A California couple alleges that AT&T bilked them on the purchase of a mobile phone, so they joined other deceived customers in a class action suit.

No, you don't, shrieked the giant's lawyers, pointing out that the arbitration clause in AT&T's phone contracts prohibits class actions. California's top state court, however, ruled against the corporation, calling its one-sided prohibition "unconscionable." So, naturally, the corporate lawyers made a mad dash to Washington, demanding that the federal justices overrule the state court. A decision is due any day now.

Clean elections. Arizona seems to have more than its share of craziness going on, but there's one area in which it has shown exemplary sanity: public financing of state elections. Despite relentless efforts by corporate lobbyists and politicos to kill the state's clean elections alternative, the law has survived since 1998. This is because it works and is widely popular, even among Republicans.

Unable to win locally, the corporate forces have now enlisted the top federal court to intervene and crush the clearly stated will of the state's people. Last November, the Roberts Court agreed to hear a challenge to Arizona's law -- an attack coming through the grossly misnamed Institute for Justice, yet another right-wing front group funded by the Koch brothers.

Even before hearing arguments on the case, the federal justices ordered that a key component of Arizona's public financing mechanism be suspended. This was in the middle of last year's state elections -- a deliberate monkey wrenching that suggests the Court will again rule against the people.

Judges gone wild

Forget modesty and humility, an aloof and arrogant judicial branch of government has arisen and become openly political. Federal judges across the country are flagrantly abusing their authority and public trust by rigging America's economic and political rules for the further enrichment of already powerful and privileged corporations. The 'umpires' have taken sides against us, and it's time to call them out.

Progressives, along with honest conservatives, must focus more on this corporate takeover of the judiciary and directly challenge the judges' service to the moneyed elites. Let me be blunt: John Roberts, the leader of the pack, has turned into an autocratic, unelected national lawmaker, imposing his political vision as the law of our land. He is doing major structural damage to America's unifying sense of fairness and justice. We can't allow him to keep hiding behind the judicial robe while he mugs us and our democratic ideals. He should be impeached.

Jim Hightower is a national radio commentator, writer, public speaker, and author of the new book, "Swim Against the Current: Even a Dead Fish Can Go With the Flow." (Wiley, March 2008) He publishes the monthly "Hightower Lowdown," co-edited by Phillip Frazer.
© 2011 Hightower Lowdown All rights reserved.
View this story online at: http://www.alternet.org/story/149861/ 

The Five Corrupt Supreme Court Judges Who Ushered In Fascist America

Outgoing Democratic Congressman John Hall Warns Citizens United Could Lead To 'Fascism'

Note:  The only thing that I disagree with here is this: America is already Fascist. Fascism was ushered in on January 21st, 2010 by five corrupt corporate owned judges.

1. John Roberts
2. Anthony Kennedy
3. Antonin Scalia
4. Samuel Alito 
5. Clarence Thomas

Rep. John Hall (D-N.Y.), who is leaving Capitol Hill after being defeated by Republican challenger Nan Hayworth, recently warned that with the massive changes to campaign finance law prompted by the Supreme Court's Citizens United decision, the nation could soon descend into fascism.
"The country was bought," Hall told The New York Observer in an exit interview. "I learned when I was in social studies class in school that corporate ownership or corporate control of government is called Fascism. So that's really the question -- is that the destination if this court decision goes unchecked?"
Hall then placed the blame on the political leanings of specific justices.
"The extremist, most recent two appointees to the Supreme Court, who claimed in their confirmation hearings before the Senate that they would not be activist judges, made a very activist decision in that it overturned more than a century of precedent," Hall explained. "And as a result there were millions of extra dollars thrown into this race."
While Justice Sonia Sotomayor, the most junior member of the bench at the time of the ruling, was on the dissenting and eventually unsuccessful end of the decision, Hall is likely referring to Bush appointees Samuel Alito and John Roberts, both of whom favored allowing corporations to anonymously funnel unlimited amounts of cash into political elections.
Hall was a strong supporter of the DISCLOSE Act earlier this year, a failed piece of legislation that included provisions to limit the potential influence of foreign-controlled corporations on U.S. elections.
Hall told The Observer that he had specific qualms with the misleadingly named political action groups that have cropped up in the wake of the decision.

Story continues below

"We are talking about supposedly wholesome names like Revere America, American Crossroads, Americans for Apple Pie and Motherhood -- if somebody hasn't trademarked that one I probably should. The fact is you can call it anything and the money could be coming from BP or Aramco or any corporation domestic or foreign," Hall said.
The Observer reports that there is some talk of Hall taking a job with the Obama administration, or perhaps with newly-elected New York Gov. Andrew Cuomo, though the outgoing congressman has yet to announced any official plans.

Dems Take on Supreme Court's Giant Sell-Out of Our Democracy to Corporations

By Joshua Holland, AlterNet
Posted on July 29, 2010, Printed on July 31, 2010
http://www.alternet.org/module/printversion/147664


Editor’s note: Sign a petition urging Congress to address the unlimited corporate campaign spending ushered in by the Supreme Court’s Citizens United ruling here.


Democrats in Congress are fighting to undo, or at least mitigate, the potential damage wrought by the Supreme Court in its Citizens United decision, an example of right-wing judicial activism that has the potential to put the final nail in the coffin of American self-governance and turn over our elections to multinational corporations.


Speaking at last week’s Netroots Nation conference, a gathering of liberal activists, Rep. Alan Grayson, D-Florida, put the threat posed by Citizens United in simple-to-understand terms. “We’re now in a situation,” he told the crowd, “where a lobbyist can walk into my office…and say, ‘I’ve got five million dollars to spend, and I can spend it for you or against you. Which do you prefer?’” That’s power.


The Citizens United ruling overturned key provisions of the McCain-Feingold campaign finance law, rules that kept corporations -- and their lobbyists and front groups (as well as labor unions) --- from spending unlimited amounts of cash on campaign advertising within 60 days of a general election for federal office (or 30 days before a primary). To get there, the court’s conservative majority stretched the Orwellian legal concept known as “corporate personhood” to the limit, and gave faceless multinationals expansive rights to influence our elections under the auspices of the First Amendment.


“They wanted to hear the possibility that that’s the way the constitution would read to them,” said Grayson. “So they picked an issue out of the air that nobody had conceived of [as a First Amendment case] because 100 years of settled law meant that corporations cannot buy elections in America, and they not only allowed corporations to buy those elections, but they made it a constitutional right.” He called the decision “a tragedy for us all,” as “corporations now have rights that human beings can never have.”


It's hard to overstate the ruling’s potential to undermine American democracy. Robert Weisman, president of the watchdog group Public Citizen, offered “a reality check” for the court, and anyone else who agrees with its majority’s belief that unlimited corporate money for independent ad buys won’t corrupt our political class. “$5.2 billion [was] spent in the 2007-2008 election cycle by all federal candidates, including candidate Obama,” Weisman said. “Exxon in that same period made $85 billion in profit; Pfizer made $27 billion selling just Lipitor alone. Last year, Goldman Sachs spent $16.5 billion on executive compensation. So if they choose to, corporations can completely overwhelm the political process, and they’re going to choose to do it more and more.”


And when corporations do get into the game in force, voters won’t know who’s picking up the tab for the flood of campaign ads. The money won’t come directly from Exxon or BP or Goldman Sachs, it’ll be filtered through the Chamber of Commerce and other corporate front groups with benign-sounding names like the Center for Consumer Freedom, Citizens for a Sound Economy or the American Council on Science and Health.


Now members of Congress are fighting to push back against the ruling on a number of fronts. Grayson has introduced a flurry of legislation, including the Business Should Mind Its Own Business Act (HR 4431), which would impose a hefty tax on corporate campaign contributions in federal races; the Corporate Propaganda Sunshine Act (HR 4432), which requires financial firms to disclose any contributions to federal candidates that exceed $1,000, and the End the Hijacking of Shareholder Funds Act (HR 4487), which requires shareholders to vote on any corporate expenditures that are meant to influence public opinion about anything other than their products and services.


The DISCLOSE Act (HR 5175), sponsored by Chris Van Hollen, D-Maryland, passed the House last month, but was killed by a unified GOP this week. DISCLOSE would have “required organizations involved in political campaigning to disclose the identity of the large donors, and to reveal their identities in any political ads they fund. It would also bar foreign corporations, government contractors and TARP recipients from making political expenditures.” After the vote, Sen. Chuck Schumer, D-New York, said, “This is a sad day for our democracy. Not only does the Supreme Court give those special interests a huge advantage, but [now the Senate] says they should do it all in secret without any disclosure. That … eats at the very fabric of our democracy. It makes our people feel powerless and angry."


Because the Supreme Court has made campaign issue advertising a constitutional right for corporations, these efforts, while laudable, can only work at the margins. Rep. Donna Edwards, D-Maryland, has taken a much bolder approach, offering a constitutional amendment that would grant Congress the explicit power to regulate expenditures for “political speech by any corporation, limited liability company, or other corporate entity.”


The Citizens United decision, said Edwards, “is another reminder that the Court has gotten it wrong, the Congress has gotten it wrong and that we need to do something serious to restore fairness in our elections, and one of the ways that we do that is setting the balance right in terms of our constitutional protection of real people, and not just of corporate interests and corporate money.”


Edwards’ amendment has attracted 24 co-sponsors to date, but her bill isn’t the only one. Congressmen Paul Hodes of New Hampshire (HJ Res 82) and Leonard Boswell of Illinois (HJ Res 68) have introduced variations in the House, and on Tuesday Max Baucus, D-Montana, one of the most conservative Dems in the upper chamber, joined Chris Dodd, D-Connecticut, and Tom Udall, D-New Mexico, in introducing similar amendments in the Senate. ( Here is a summary of the differences between the various amendments.)


It’s an uphill climb -- amending the U.S. Constitution requires a two-thirds majority in both chambers of Congress, and then must be ratified by 38 state legislatures. It’s been done only 27 times in the history of the Republic. And with both chambers of Congress in the hands of what David Sirota terms “the Money Party,” skeptics rightly point out that passing it would be a steep uphill climb.


Yet the Right has long used unlikely constitutional amendments to raise awareness of an issue and rally the Republican base (think: flag-burning). And even a losing effort to amend the constitution can have a significant impact on the political scene. “If we don’t seize it as an opportunity because it’s so discouraging, they win,” said Lisa Graves, executive director of the Center for Media and Democracy. Graves added that losing efforts like the proposed Victim’s Rights Amendment had nevertheless had a profound effect on the law. “A constitutional amendment is a powerful organizing tool,” she said, “and we must embrace it … we need to learn that we can win when we lose.”


Not surprisingly, there’s plenty of support for Citizens United on the Right. This week, the Tea Party Patriots -- the well-heeled corporate lobby group that pulls the strings of much of the “grassroots movement” -- sent its rubes an “urgent alert” about the DISCLOSE Act, which it called an “effort to silence us before the elections.” They described it as being “tantamount to a witch-hunt.”


Ultimately, it will require a massive grassroots effort to overcome that narrative -- and a hopelessly deadlocked Congress -- to get either a constitutional amendment overturning Citizens United or a legislative fix to lessen its harm enacted into law.


It appears to be taking shape. A coalition of progressive groups has created a petition calling on lawmakers to push back against the Supreme Court’s activism (which you can sign here), and People for the American Way and Public Citizen have launched a campaign to get active citizens to urge lawmakers and candidates for Congress to pledge that they’ll vote with the American people on the issue if they get the chance. (You can find out more about that effort here.)


American democracy has taken a beating, but it’s still possible to save it. It certainly won’t be an easy task in this climate, but promoting and maintaining a robust democracy has never been easy.


Joshua Holland is an editor and senior writer at AlterNet.
© 2010 Independent Media Institute. All rights reserved.
View this story online at: http://www.alternet.org/story/147664/

Rise of the Corporate Court: How the Supreme Court is Putting Businesses First

And now that 72 House Democrats  signed industry-backed letters telling the FCC to abandon efforts to protect Internet users by prohibiting big companies from blocking Internet traffic we can all look forward to internet censorship of investigative bloggers who have been exposing corporate & political corruption in Washington and State Government such as the article below.  God Bless Corporate States of America ~ Land of-the-not-so-free.



Original Article HERE

From Bush v. Gore to Citizens United v. FEC: The Making of a Corporate Democracy, 2000-2010

A decade ago in Bush v. Gore,1 five Justices on the United States Supreme Court intervened in the 2000 presidential election to halt the counting of more than 100,000 ballots in Florida, thus delivering the presidency to the preferred candidate of America's largest corporations--like Enron, Haliburton, Exxon-Mobil, Blackwater, AIG and Goldman Sachs. These corporations proceeded to shape public policy in significant ways, promoting financial deregulation, privatization and the spread of corporate welfare, the contracting out of warfare, and the creation of what economist James Galbraith has called a "predator state."

In 2010, in Citizens United v. FEC,2 a case that dealt originally with the question of whether the electioneering communications provisions of the McCain-Feingold Act apply to "pay-per-view" movies produced by not-for-profit entities, five Justices on the Court, including the two named by President Bush himself--Chief Justice John Roberts and Justice Samuel Alito--reached out to ask a question that had not been posed to them. They then answered it, announcing that private businesses – including for-profit corporations - have a right to spend as much money as they want to elect or defeat candidates in political campaigns at all levels. The decision reversed numerous Supreme Court precedents and toppled dozens of long-standing campaign finance laws at the federal and state level, clearing the field to permanently remake America's popular democracy into something like a "corporate democracy."

Americans across the spectrum have been startled and appalled by the Citizens United decision, which will "open the floodgates for special interests—including foreign companies—to spend without limit in our elections," as President Obama said in his 2010 State of the Union Address. According to a Washington Post nationwide poll, more than 80% of the American people reject the Court's conclusion that a business corporation is a member of the political community entitled to the same free speech rights as citizens.3

Yet, the Court's watershed ruling is the logical expression of an activist pro-corporatist jurisprudence that has been bubbling up for many decades on the Court but has gained tremendous momentum over the last generation. Since the Rehnquist Court, there have been at least five justices—and sometimes more—who tilt hard to the right when it comes to a direct showdown between corporate power and the public interest. During the Roberts Court, this trend has continued and intensified. Although there is still some fluidity among the players, it is reasonable to think of a reliable "corporate bloc" as having emerged on the Court.

At the time of the 2000 presidential election, the late economist John Kenneth Galbraith likened the Rehnquist Court's imposition of its will on the American people to a corporate Board of Directors choosing a new CEO for a mass of passive shareholders. Whereas Article II of the real Constitution provides that the president shall name Supreme Court justices with the advice and consent of the Senate, Galbraith saw that the unwritten bylaws of our country now apparently authorized the Supreme Court to name the president.

His comment, spoken half in jest, was not only a lucid predictive reading of what public policy would be like in the Bush-Cheney period, but a haunting insight about how the rule of law itself has been redefined by the Court majority's commitment to amplifying the corporate voice, reducing corporate liability, and expanding corporate power.

For more than a century, of course, the private business corporation has been a major force in our economy and society. Because corporations are chartered by the states and interact continuously with government regulators, employees in the workplace, consumers and investors in the marketplace, and our land, air and water, they are frequently in court. When they go to the Supreme Court as parties, sometimes they win, as surely they should, and sometimes they lose, which is also to be expected.

What is striking today, however, is how often the Roberts Court, like its predecessor the Rehnquist Court, hands down counter-intuitive 5-4 victories to corporations by ignoring clear precedents, twisting statutory language and distorting legislative intent. From labor and workplace law to environmental law, from consumer regulation to tort law and the all-important election law, the conservative-tilting Court has reached out to enshrine and elevate the power of business corporations --what some people have begun to call "corporate Americans"--over the rights of the old-fashioned human beings called citizens.

With Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, Clarence Thomas and Anthony Kennedy in the driver's seat today, the "least dangerous" branch of government now routinely runs over our laws and our politics to clear the road for corporate interests. When it comes to political democracy and social progress, the Supreme Court today is the most dangerous branch. The road back to strong democracy requires sustained attention to how the Court is thwarting justice and the rule of law in service of corporate litigants.
The American Workplace

Dirty Work: How the Court is Twisting Employment and Labor Law to Serve Corporate Wrongdoers

The Supreme Court has repeatedly trashed anti-discrimination law to let corporate wrongdoers off the hook. Everyone remembers the infamous 5-4 ruling in Lilly Ledbetter's case, Ledbetter v. Goodyear Tire & Rubber Co. (2007)4. There, five justices (Alito, Roberts, Scalia, Thomas and Kennedy) held that, under Title VII, the female victim of decades of pay discrimination on the job who only learned of her biased treatment at the end of her career could not sue since the discrimination had begun more than 180 days before her court filing and the statute of limitations had therefore run. The four dissenters argued in vain that, given that Ledbetter was unaware that she was being paid less than men on the job, each discriminatory paycheck renewed the cause of action and the 180 days should be measured from the point at which she first learned of the salary double standard.

The majority's outrageous ruling on behalf of the Goodyear Tire and Rubber Company caused a furor in the 2008 presidential election and helped produce a majority for electoral change. One of President Obama's first acts in office was to sign the Lilly Ledbetter Fair Pay Act.

But Lilly Ledbetter and other workers in her situation were just more judicial roadkill along the highway in the majority's campaign to restrict, rewrite, and squash anti-discrimination law.

Just last Term, in AT&T v. Hulteen (2009),5 a a 7-2 majority produced a fitting sequel to the Ledbetter decision. In that case, the Court reversed the Ninth Circuit Court of Appeals, which had found that AT&aT had discriminated in calculating the pension benefits of female workers by subtracting for pension purposes the time they had taken off for pregnancy while not subtracting the time taken off by workers using other forms of disability leave. The majority reasoned that it was not against the law at the time to discount pregnancy leave—this was before Congress passed the Pregnancy Discrimination Act—and so the pay inequity followed from a "bona fide" pension plan. Thus, corporations were permitted to discriminate because they discriminated before. As Justice Ginsburg – one of the two dissenters - was quoted as saying in USA Today, the arguments in the case were "for me, Ledbetter repeated."6

Similarly, last year in Gross v. FBL Financial Services (2009),7 the majority knocked the wind out of the Age Discrimination in Employment Act by ruling that age discrimination plaintiffs can no longer use the traditional "mixed motive" test from Title VII when bringing a case but must prove that age was the "but for" cause of their discriminatory treatment at the hands of an employer. Here, the Court tortured out a sharp distinction in the meaning of identical language in similar anti-discrimination statutes and effectively created a patchwork of different approaches, reducing the effect of the ADEA and the coherence of civil rights law generally.

The Union Makes Them Strong, but the Supreme Court Makes Them Weak

The main charter for the rights of workers in America is the National Labor Relations Act (1935), which makes it illegal to fire people for trying to organize a union. Under the Act, the National Labor Relations Board (NLRB) has the power to require employers to reinstate workers who were fired for union activity and give them back pay for the period they were unfairly dismissed. Yet, whenever the Board acts to enforce the rights of workers of this way, a corporate bloc on the Court often finds a way to reverse the Board's action and undermine this essential right for working people.

To take an egregious example out of a vast field, consider the Court's familiar 5-4 lineup in Hoffman Plastic Compounds v. NLRB (2002)8. In this case, the corporate employer, Hoffman Plastic Compounds, Inc., fired four employees who were participating in an organizing drive led by the United Rubber, Cork, Linoleum, and Plastic Workers of America, an AFL-CIO member union. After investigating the dismissals, the Board determined that the firings were an unfair labor practice and ordered the company to offer reinstatement and back pay to the four workers. The company initially accepted the discipline.

When it came time to pay up, the company argued that it should not have to compensate one of the workers, a blending machine operator named Jose Castro who was owed tens of thousands of dollars in back pay, because he was an undocumented alien. However, the Board found that Hoffman Plastic knew Castro was undocumented and continued to employ him for a period of more than three years after it learned of his status. The Board awarded Castro $66,951 in back pay, a sum that covered the period between the date of Castro's termination and the date three-and-a-half years before when the company learned of his immigration status. The Board ruled that the award was necessary to satisfy both the remedial purpose of the statute and its deterrent purpose of keeping employers from hiring undocumented aliens to take advantage of their labor and then firing them if they join a union drive.

But Rehnquist, O'Connor, Scalia, Thomas and Kennedy cast aside deference to the NLRB's administrative decision and overthrew the statutory arguments of the U.S. Attorney General , who is the official actually charged with enforcing immigration law. The majority simply threw Castro's back pay award out the window.

In trying to justify this remarkable victory for a corporate wrongdoer, Chief Justice Rehnquist cited other "significant sanctions" that Hoffman Plastic received, including—brace yourself now-- an order "that it conspicuously post a notice to employees setting forth their rights under the NLRA and detailing its prior unfair practices9."

This extraordinary ruling directly thwarts the labor law policy against union-busting and the immigration law's policy that tries to deter American corporations from hiring undocumented workers. As Justice Breyer wrote in dissent with Justices Stevens, Souter and Ginsburg, “in the absence of the backpay weapon, employers could conclude that they can violate the labor laws at least once with impunity.”10  He went on to explain that there is no basis in the National Labor Relations Act or in any immigration law for letting employers off the hook in a situation where they have violated both federal labor and immigration law.  Indeed, as Breyer observed, the Court had always recognized that “the immigration law foresees application of the Nation’s labor laws to protect ‘workers who are illegal immigrants.’”11 If not, then corporate employers will have an incentive to continue hiring undocumented people illegally--an incentive that the corporate Court majority increased dramatically with its indefensible but characteristic opinion in Hoffman Plastic.

Downward pressure on the organizing and bargaining rights of American workers is constant on the Court. Last Term in 14 Penn Plaza LLC v. Pyett (2009)12, five corporate-minded justices --Thomas, Roberts, Scalia, Kennedy and Alito--dealt a blow not only to Service Employees International Union members in New York but millions of workers across the country when they upheld compulsory arbitration claims provisions that clearly undermine statutory anti-discrimination protections. Justice Thomas' opinion put into a straitjacket a Supreme Court precedent more than three decades old standing for the principle that a union cannot contractually waive its members' right to substantive workplace rights and protections guaranteed by federal law. Justice Souter and Justice Stevens, in stinging dissents, castigated Justice Thomas and the majority for mangling precedent and undermining the rights of American workers. But this is business-as-usual on the corporations' Court.
A Thoroughly Corporate Environment: Supreme Activists Are Fouling the Waters and Diluting the Rights of Plaintiffs

Exxon Shipping Co. v. Baker (2008): Oil Spills and Punitive Damages

In 1989, in one of the worst environmental accidents in history, a 900-foot long Exxon supertanker called the Exxon Valdez, which was carrying over a million barrels of crude oil (53 million gallons) grounded on a reef off of Alaska, releasing a toxic flood of oil into Prince William Sound, in the process destroying vast amounts of marine wildlife and the livelihood of many fishing communities and native Alaskans.

The accident took place when the tanker's captain, Captain John Hazelwood, a long-term alcoholic, suddenly and inexplicably left the bridge after speeding the tanker up, placing it on autopilot and leaving it in the hands of an inexperienced officer unlicensed to navigate that part of Prince William Sound. The catastrophic crash ensued.

Before the Valdez left port that night, Captain Hazelwood, a long-time alcoholic, had "downed at least five double vodkas in the waterfront bars of Valdez."

Exxon knew all about Captain Joseph Hazelwood's alcoholism. He had completed part of an alcohol treatment program but dropped out of its concluding segment and had stopped going to Alcoholics Anonymous meetings. Not only did he drink, according to the District Court, "in bars, parking lots, apartments, airports, airplanes, restaurants, hotels, at various ports, and aboard Exxon tankers," but the District Court also heard testimony that he drank with Exxon officials and that Exxon managers knew that he had relapsed into his old drinking habits.

The jury awarded the plaintiff fishermen and nearby residents $287 million in compensatory damages and another $5 billion in punitive damages for Exxon's corporate recklessness. After two remands and close study of the issue of punitive damages, the Ninth Circuit Court of Appeals reduced the punitive damages award to $2.5 billion and described Exxon's conduct as "egregious."

But even this pared-down judgment was way too much for Justices Roberts, Kennedy, Thomas, Souter and Scalia. In 200813, this bloc reduced the punitive damage award from $2.5 billion to $507.5 million. Indeed, the only thing that stopped them from deleting the award altogether was that they were one vote short of being able to find that a corporation is not responsible for the reckless acts of its own managers acting in the scope of their employment14.

What the 5-justice majority found, over the objections of dissenting liberal justices who accused them of legislating from the bench, was that it would impose in maritime tort cases a 1-1 ratio between compensatory and punitive damages—a formula found nowhere in the statute and essentially pulled out of a hat made by a big corporation. In dissent, Justice Stevens chastised the majority for interpreting the "congressional choice not to limit the availability of punitive damages under maritime law" as "an invitation to make policy judgments on the basis of evidence in the public domain that Congress is better able to evaluate than is this Court15."

But Exxon, which amazingly ended up making money on the spill because of the resulting increase in oil prices, got its way with a corporate-leaning Court and ended up paying punitive damages equal to a day or two of company profits.

Watering Down Environmental Protection: A Steady Drip

Although the facts of the Exxon oil spill case are unusually striking, the decision is typical indeed. In the 2008-09 Term, for example, the majority reversed a decision that had been authored in the Second Circuit by then-Judge Sonia Sotomayor in order to find that the Environmental Protection Agency could dilute a Clean Water Act requirement that the electric power companies industry must use "the best technology available for minimizing adverse environmental impact" when taking water out of the nation's waterways for cooling. The predictable majority--Scalia, Roberts, Kennedy, Thomas and Alito--in Entergy Corp. v. Riverkeeper, Inc. (2009)16, found that, in trying to determine the "best technology" for protecting fish, shellfish and other forms of aquatic life, the EPA could take into account the financial costs to the business—a ruling that twists the statute and constitutes a bounteous gift to the power companies.

Also last Term, in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (2009)17, the same corporate-tilting justices regrouped-with the addition of Breyer-to determine, under the Clean Water Act again, that a mining waste called "slurry discharge" could be poured directly into lakes by industry businesses holding a U.S. Army Corps of Engineers permit even though it is expressly prohibited by EPA rules.
Judicial Smokescreen: Corporations Prevail Over Consumers
It is hard to think of too many industries that concealed the truth about their product more aggressively, or misled the consuming public more deviously, than Big Tobacco did for decades. So, to see how far judicial corporatism has gone, consider how conservatives swung into action three years ago to protect the profits of the Philip Morris corporation in a fraud case brought by a widow who lost her husband, a long-term three-pack-a-day smoker, to the ravages of lung cancer.

In Philip Morris USA v. Williams (2007),18 the Supreme Court reversed a $79.5 million punitive damage award handed down against the tobacco giant by a jury which had heard damning evidence of the company's massive disinformation campaign to suppress the truth about the health effects of smoking. In a 5-4 decision (with a few of the usual justices switching places) , the majority (Breyer, Roberts, Kennedy, Souter and Alito) found that the Due Process Clause forbids as a consideration in a jury's calculation of punitive damages the harm that was caused to the consumer public beyond the actual named parties in the case. This counter-intuitive decision negates the whole meaning of "punitive" damages which are meant precisely to punish and deter misconduct by tortfeasors who make themselves a threat to the general public health and safety. This is a startling victory not for honest business but for those large corporations that inject dangerous products into the stream of commerce.

Philip Morris USA v. Williams is very much in line with the conservative bloc's efforts to straitjacket the rights of plaintiffs suing large corporations and parallels its treatment of plaintiffs against other powerful interests, as demonstrated by Ashcroft v. Iqbal (2009)19 - a decision that imposes stiflingly difficult new pleading standards on plaintiffs generally seeking access to justice. With every passing year, the courthouse door is getting harder and harder to open for ordinary human plaintiffs.
A Nation Divided Over Citizens United
As egregious as many of the Court's pro-corporate statutory decisions have been, its constitutional ruling in Citizens United elevates jurisprudential corporatism to an even higher plane with sweeping political implications at all levels. It dramatically shifts the center of gravity in American democracy.

To collect a sense of the staggering implications of Citizens United, take Exxon-Mobil, whose political action committee (PAC) raised just under $1 million in the 2008 election cycle from executives and members of its board, a not insignificant sum of money that the PAC was able to invest in races across America. (Of course, the company also has thick contingents of lobbyists, public relations personnel, and government relations specialists on hand too.) This seems fair enough—the individuals who run the company have a right to give and participate in politics as citizens by putting their own money into a voluntary political fund.

But in the same year, Exxon-Mobil amassed profits of $85 billion.

Now, imagine that Citizens United was already the law and the company spent a modest 10% of its profits in the 2008 elections--$8.5 billion—to elect its friends and defeat its enemies. This would have been more than was spent by the Obama campaign, the McCain campaign, every U.S. House and Senate candidate and every state legislative candidate in the country combined.

That's one corporation. Imagine what the Fortune 500 could unleash on us.

Would the public interest ever have a chance to prevail over the opposition of the pharmaceutical companies, the insurance companies, Big Oil, or what President Eisenhower called the "military-industrial complex"?

In order to remake our politics in this way, the Supreme activists first had to completely redefine the question in the case. The plaintiff organization, Citizens United, which had received business corporation contributions, sought a limited statutory holding that the McCain-Feingold "electioneering communications" provisions did not apply to a pay-per-view made-for-television movie which was made available for purchase to the public but not broadcast on the air like ordinary political commercials. This was a perfectly reasonable request that would have allowed the conservative justices to get where they were going in the "minimalist" fashion they claim to prefer. But, alas, it was not nearly enough for them. After oral argument, they insisted that the parties go back and re-brief and reargue the entire case to focus on a sweeping question that had not been raised before: whether the Court's ruling in Austin v. Michigan Chamber of Commerce20 was wrong and private corporations enjoy the same constitutional rights as actual human beings in electoral politics.

Once this outburst of judicial activism reframed the case, five reliably pro-corporate justices (Kennedy, Roberts, Scalia, Thomas and Alito) proceeded to dishonor many decades of jurisprudence that had treated corporations not as citizens armed with political rights but as subordinate "artificial entities" chartered and regulated by the state for economic purposes and not endowed with the political rights of the people.

This was the working assumption of not only progressive justices but deeply conservative ones who were faithful to the text of the Constitution and not under the spell of corporate power. Chief Justice John Marshall, the great hero of prior generations of judicial conservatives, wrote in the Dartmouth College21 case that: "A corporation is an artificial being, invisible, intangible and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it . . ."22

In our time, Justice Byron White pointed out that we endow private corporations with all kinds of legal benefits—"limited liability, perpetual life, and the accumulation, distribution and taxation of assets"—in order to "strengthen the economy generally." But a corporation thus endowed by the state is placed "in a position to control vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy, the electoral process." The state, he argued, has a compelling interest in "preventing institutions which have been permitted to amass wealth as a result of special advantages extended by the State for certain economic purposes from using that wealth to acquire an unfair advantage in the political process. . ."23

Justice White then delivered the key principle that ought to control our constitutional understanding of the corporation's political ambitions: "The state need not permit its own creation to consume it."

Today, of course, this principle has been repudiated by the Roberts Court whose interpretation of the First Amendment means that the state must permit its own creation to consume it.24

The Roberts Court's constitutionalization of corporate political power puts it far to the right of traditional conservative jurisprudence, which was emphatically clear that corporations are "artificial entities" chartered for economic purposes, and thus not to be confused with political parties, social movements or membership organizations.

Consider the lucid views of Chief Justice William Rehnquist, who was of course no great friend on the Court to consumers, workers or the environment but at least never tried to invent constitutionally-anchored political rights for business corporations.25

Rehnquist embraced Chief Justice Marshall's statement that a "corporation is an artificial being, invisible, intangible, and existing only in contemplation of law," and aggressively questioned theories of the "personhood" of the corporation. He wrote that he could not see why "liberties of political expression" are "necessary to effectuate the purposes for which States permit commercial corporations to exist. . . . Indeed, the States might reasonably fear that the corporation would use its economic power to obtain further benefits beyond those already bestowed."26

Rehnquist's common-sense views on the juridical status of the corporation have been jettisoned by the Roberts Court. The "conservatives" have now bulldozed the wall of separation between corporate wealth and public elections.

It goes without saying that the people must act over time to rebuild the wall of separation that the Court has torn down. In the meantime, it is imperative that the president nominate and the Senate confirm Justices who will place the first three words of the Constitution—"We, the People"—above the relentless juridical project to put corporations first. 


The Supreme Court Judges smell at putrid as Washington