The latest chapter of a 40-year assault on Constitutional Democracy
And the long overdue effort by the People to reclaim their democratic heritage...
By Ernest A. Canning on 2/19/2010, 6:05am PT  

Guest blogged by Ernest A. Canning

"The American people already believe that corporate special interests and their lobbyists run the show around here. I mean, the halls are crawling with them. But that’s not enough. Now the Court says to the big banks, to the drug companies, to the insurance companies, ‘Hey, all bets are off, and it’s open season. Our elections are for sale.’ A law won’t fix this; we have to fix it in the Constitution. So today I’ll introduce a constitutional amendment so that we, the people, can take back our elections and our democracy."
-- Rep. Donna Edwards (D-MD), on the floor of the U.S. House of Representatives, 1/28/10

In "Activist U.S. Supreme Court Makes It Official, We're Now 'The Corporate States of America'", Brad Friedman, along with so many others, expressed alarm over the Supreme Court's ruling in Citizens United v. Federal Election Commission [PDF], as well he should have.

Notwithstanding the sophistries offered by Jan Witold Baran, who neglected to mention in his Jan. 26, 2010 New York Times editorial that he is a former general counsel for the Republican National Committee, it is clear from the broad language applied by the five-member majority of the Supreme Court that Citizens United calls into question the validity of all laws which seek to prohibit or even limit the ability of corporate bought-and-paid-for candidates to flood the airwaves with the corporate message, either directly or through corporate-purchased propaganda time slots; an ability that can drown out the right of citizens to see and hear those who do not tow the corporate line.

As I will explain in this first of a series of articles, this ruling perverts the very reason why the framers included "freedom of the press" in the First Amendment to the Constitutional amendments.

Unfortunately, as I will also explain in this series, the ruling in Citizens United was not unexpected. To the contrary, it is but the latest salvo in a 40 year, billionaire-funded assault on the very foundations of our constitutional republic and the rule of law.

A belated effort to reclaim our basic heritage has emerged via a move to amend the Constitution to overcome the devastating impact of Citizens United. Harvard Law Professor Lawrence Lessig argues that a Constitutional Amendment to overturn Citizens United will not be enough; that we have to overcome what he describes as "the economy of influence" which now controls Congress. Lessig has called for a new Constitutional Convention. Another activist group, The Peace Team, has denounced the decision in Citizens United as an "act of treason." The Peace Team features an on-line petition calling for the impeachment of the five members of the Supreme Court who signed onto the majority opinion.

Regardless of where one stands on these efforts, a full appreciation of the big picture may be required before an effective movement can counter the well-funded and well organized assault on liberty...

Shedding an Orwellian label

Before delving into this subject, it is important that Americans not be deceived by the Orwellian label. As described by Justice Stevens at the outset of his dissent, "Citizens United" is "a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets." He wrote that it could have easily avoided the restrictions of the Bipartisan Campaign Reform Act of 2002 by using PAC funds to promote its political hit piece, "Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United’s nor any other corporation’s speech has been 'banned.'"

Yet the politicized majority on the court went out of its way to overrule long established precedent in Citizens United, at the behest of a corporate giant that could, by no stretch of the imagination, be described as a group of united "citizens."

The First Amendment was intended to insure that the U.S. would be democratically governed by a knowledgeable electorate

Whenever I write about our democracy, I find myself confronted by the ignorant, hard-right canard that the U.S. is not a democracy; it's a republic. Those who espouse such nonsense are apparently unaware that the "Founding Fathers like James Madison defined republic in terms of representative democracy as opposed to only having direct democracy..."

The First Amendment does not merely protect the right to speak freely. It reads, in pertinent part: "Congress shall make no law…abridging the freedom of speech, or of the press…"

The distinction the framers made between "freedom of speech" and freedom "of the press" flows from the vital democracy-sustaining function played by knowledge.

Madison astutely observed:

Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.

This vital democracy-sustaining function of a free press was explained by the 20th Century Supreme Court's most strident First Amendment champion, Justice Hugo Black, in his concurring opinion in New York Times vs. United States (the "Pentagon Papers" case):

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to have served the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die…

Note that Justice Black referenced press “responsibilities” even as he referred to it as “free and unrestrained.” The framers did not envision a press that was free to join in with government (or with private corporations) in order to deceive the people. Just as the framers saw fit to divide governmental power between three branches --- executive, legislative and judicial --- each with a constitutional obligation to check the other, so too the framers envisioned a free and unrestrained press that would provide the vehicle for the ultimate check against the usurpation of power.

The expansion of corporate "free speech" undermines the core purpose of a "free press" --- to insure the public's right to know

It is curious that, at the outset of the Citizens United majority opinion, Justice Anthony Kennedy quoted only the clause of the First Amendment which guarantees freedom of speech yet failed to mention freedom of the press. The omission is revealing both in its failure to recognize the vital connection between these two clauses and the pernicious impact upon the second of the two by the unchallenged ability of wealth to dominate the scope and content of discourse.

While the First Amendment insures press freedom from government censorship, it contains no provision to mandate that the press exercise the responsibility for ensuring that information vital to informed decision-making is conveyed to the people. The framers’ unstated assumption was that once free of fear of government reprisal, a vibrant press would act to expose the deceits of those in power; not throw in with them.

The Constitutional Convention took place in 1787, long before the heyday of the industrial revolution, the rise of corporate power, the military-industrial complex and the gaping wealth disparity these created --- a disparity so great that by 1999 the net worth of just three individuals, Bill Gates, Paul Allen and Warren Buffett, exceeded “the combined GDP of the world’s 41 poorest nations and their 550 million people.” As Kevin Phillips observed in Wealth and Democracy, quoting Samuel Huntington, “’money becomes evil not when it is used to buy goods but when it is used to buy power….economic inequalities become evil when they are translated into political inequalities.’ Political inequalities, in turn, lead to more dangerous economic inequalities."

We witnessed a classic clash between corporate "free speech" and the public right to know function of a "free press" when, on Jan. 15, 2008 MSNBC, following an adverse ruling by a Nevada superior court judge, successfully petitioned the Nevada Supreme Court to prevent Rep. Dennis Kucinich (D-OH) from participating in a Presidential debate. MSNBC argued that Kucinich’s effort to be included amounted to an “illegitimate” effort “to impose an equal access requirement that entirely undermines the wide journalistic freedoms enjoyed by news organizations under the First Amendment.”

Like this latest U.S. Supreme Court decision, the NV Supremes perverted the First Amendment, by enhancing the ability of this giant media conglomerate, whose parent company, GE, is the world's second largest weapons manufacturer, to narrow the range of information that voters in the Democratic Presidential primaries would receive during the course of these "debates."

In a remarkable Jan. 16, 2008 episode, "Breaking the Sound Barrier," Democracy Now's Amy Goodman revealed precisely what the American people were deprived of when she gave Kucinich the opportunity to respond to the questions posed to the three MSNBC-approved Presidential candidates, Barack Obama, Hillary Clinton and John Edwards.

At the outset, Mr. Kucinich described his exclusion as a “conundrum” which “goes right to the question of democratic governance, whether a broadcast network can choose who the candidates will be based on their narrow concerns, because they’ve contributed --- GE, NBC and Raytheon…have all contributed substantially to Democratic candidates who were in the debate. And the fact of the matter is, with GE building nuclear power plants, they have a vested interest in Yucca Mountain in Nevada being kept open; with GE being involved with Raytheon…they have an interest in war continuing. So NBC ends up being their propaganda arm to be able to advance their economic interests."

Where all three candidates furnished nuanced responses to evade a commitment for a total withdrawal of U.S. troops from Iraq by the end of a first term, 2013, Kucinich replied:

I’m the only person running for president who not only voted against the war, but voted 100% of the time against funding the war. What you’ve heard here is a bunch of nuancing. They’re all saying the same thing, that they will keep troops in Iraq. The troops will be kept there to protect an embassy. The troops will be kept there for counterinsurgency and for training the Iraqi military.

...We must end the occupation, close the bases, bring the troops home. We don’t have a right to have an embassy there, as we are an occupying army. And any way that the United States government would keep its foot in the door of Iraq is a way that the war will continue, because the occupation is fueling the insurgency.

During the Jan. 15, 2008 debate all three MSNBC-approved candidates responded in the affirmative when Tim Russert asked whether they would enforce a federal statute that defunds colleges and universities who fail to "provide space for military recruiters or provide a ROTC program for its students."

Kucinich's response revealed precisely why he was excluded by MSNBC [emphasis added]:

AMY GOODMAN: Congressmember Kucinich, would you?

REP. DENNIS KUCINICH: Absolutely not. Our society is being militarized. And part of the problem is NBC, which is a partner defense contractor through the ownership of General Electric of both NBC and Raytheon. So NBC is really promoting war here.

The truth of the matter is that we need to make it possible for our young people, if they desire to go in the military, they can go to a recruiter’s office, instead of telling campuses that if you don’t let recruiters on campus, you’re going to lose your money. That, to me, is antithetical to a democratic society.

Over the years the American people have paid a heavy price for the elevation of corporate media "free speech" over the "free press" rights of the American people. Militarism and nuanced evasions have permitted the erection of history's most awesome military arsenal and the erection of a vast, worldwide network of military bases nearly-invisible to the American people, but not to those whose nations are occupied by, as of July 1, 2007, 255,065 US military personnel deployed in 156 countries. That number does not include private mercenaries who make up, for example, 60% of the forces in Afghanistan.

In "We Must be Insane," we reported:

When...President [Obama] announced the withdrawal in February, 2009, there were 140,000 troops inside Iraq. 130,000 are expected to still be there in April 2010. Even when "combat troops" are drawn down, the plan is to indefinitely leave a residual occupation force of 35,000 to 50,000 troops, plus an estimated 50,000 private contractors --- an indefinite occupation of a nation, Iraq, that was the victim of an unprovoked U.S.-led "war of aggression."

As a direct result of this type of media policing, electoral choice is reduced to superficial differences between corporate-sponsored candidates. In the case of Iraq, which faces an indefinite occupation, the cost to the American people by this elevation of corporate "free speech" above the public's right to know in order to intelligently decide, entails much more than the $750 million/day direct expenditures, as estimated in 2007 by Nobel prize-winning economist, Joseph Stiglitz. As revealed by the must see video of an extraordinarily powerful speech delivered by an Iraq War veteran, the cost of maintaining this brutal and unjust occupation may well deliver a vital blow to everything America was supposed to stand for.

Corporate control of 95% of what we see, hear and read has already substantially undermined the core purpose of the First Amendment

“The very structure of our conglomerated media system conspires against real journalism, and hence, the truth. And without access to the truth, democracy withers.”
--Tim Robbins, Forward to Tragedy & Farce

The core purpose of the First Amendment has been significantly undermined by the delegation of this vital "democracy-sustaining" function to the most undemocratic of institutions, "the corporation".

As observed by Jim Hightower in Thieves in High Places:

No corporation is a model for how government should operate. Corporations are rigid, top-down, autocratic hierarchies in which executive actions are delivered as fiats to be implemented unquestioningly….Corporations are towers of secrecy, in which all information is considered a proprietary asset to be doled out only in approved snippets vetted through the PR department, keeping as much as possible from employees, investors, customers, auditors, regulators, lawmakers…

In Failed States Noam Chomsky observed that the political counterpart to a corporation is a totalitarian state --- a disquieting thought given that the vast media landscape is under the control of a handful of mega-media conglomerates.

It is absurd to think that you can give unlimited "free speech" rights to corporations without severely restricting the public's access to information vital to their knowledgeable participation in the vital issues of the day. This blog, this article, may reach perhaps a few thousand people. An Amy Goodman or a Bill Moyers, quite a few more. But one very wealthy man, Rupert Murdoch, operating through News Corp., a $53.121 billion multi-media (television, radio, books, magazines, internet, motion pictures) conglomerate can command an audience of tens if not hundreds of millions all over the planet.

The greater the control of the message by these anti-egalitarian entities, the greater the peril to democracy.

In Part II, I will address how the same billionaire class which has, for so long, dominated mass communications, the military-industrial complex and Wall Street, has engaged in a direct assault on our democratic institutions by way of what David Brock aptly described in Blinded by the Right as a "counterrevolution in law" and how four of the five Supreme Court Justices who signed on to the majority opinion in Citizens United are linked to that counterrevolution.


Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).