Chapter One

American Democracy Works, and Corporations Fight Back

In 1838, a quarter century before he became the nation’s sixteenth president, a twenty-nine-year-old Abraham Lincoln stepped up to speak at the Young Men’s Lyceum in Springfield, Illinois. He spoke about what was to become the cause of his life: the preservation of that great American contribution to the human story, government of, for, and by the people. He insisted that the success or failure of the American experiment was up to us. “If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.” ¹

Lincoln’s generation of Americans, and every generation since, has faced daunting questions of whether “destruction be our lot,” and we certainly have our share today. Most people can point to a host of complex and related reasons for rising anxiety about our future. Global and national environmental crises seem relentless and increasingly related to energy, economic, military, and food crises. Our unsustainable debt and budgets—national, state, local, family, personal—seem beyond control, reflecting an economy that has not generated significant wage growth in a generation. We have been locked in faraway wars for more than a decade, at war in one form or another for a half century. Despite our victory over totalitarian communism, we spend more on our military than all other countries combined. We, the descendants of republicans with great suspicion about standing armies, now maintain a costly military empire across more than one hundred countries and a sprawling secret government that collects the communications data of everyone. Many Americans now doubt that we are, in fact, a government of the people and no longer believe that our democracy and government are working.

We can point to an array of causes, and we can point fingers at one another, but a taproot of many of these related problems is our collective failure to do what generations of Americans before us did: choose to take responsibility as citizens to manage hyperconcentrations of political power among the largest corporations and the wealthiest few. We have lost sight of the implications in a republic of the extreme wealth and power of transnational corporations. The agenda of the largest corporations and those who control them is not the agenda of the American family and the American community. Yet the corporate agenda is now dominant at home and across the world.

The Impact of Citizens United

In 2010, in Citizens United v. Federal Election Commission, the Supreme Court proclaimed that the American people are not permitted to determine how much control corporations and concentrated wealth may have over elections and lawmakers. The Court, in a 5-4 decision, ruled that a federal election law designed to prevent corporations and unions from dominating elections and government violated First Amendment free speech rights.

The impact of the Supreme Court’s folly now is beyond dispute. More money was spent by fewer donors in the 2012 election than ever before in history. As much as $10 billion in the federal election; ² billions more in state and local elections. ³ “Dark money” from corporations, billionaires, and unions was run through secretive “social welfare” nonprofit corporations acting as partisan political operatives; ⁴ foreign money was run through corporate subsidiaries and trade associations; ⁵ and Super PACs, corporations, candidates, and operatives pretending to be “uncoordinated” unleashed saturation attack ads across the land, all to drown out other issues, candidates, ideas, and, ultimately, Americans’ faith in effective democracy.

This spending is not “free speech,” unleashed at last, nor is it a burst of democratic enthusiasm for electioneering. Instead, it is the deployment of power of, for, and by a very few.

How few? A few dozen donors contributed 60 percent of the Super PAC money, and almost all of the Super PAC money came from came from just 3,318 donors. That is 0.0011 percent of the American population. ⁶ One billionaire global casino mogul alone contributed $93 million. ⁷ One global oil corporation alone, Chevron, handed $2.5 million to the “Leadership PAC” of the Speaker of the House, who has promised to oppose cutting oil and gas subsidies and to block action on the climate catastrophe.

Almost all political contributions of any sort—80 percent—come from just 0.5 percent of the population. This “donor class,” interwoven with corporations and lobbying firms, are largely concentrated in New York, Washington, Los Angeles, Chicago, and Boston. ⁸

Political domination by the few has even overwhelmed state ballot initiatives, originally intended to check concentrated corporate and wealth power. A century ago, American government was “fast becoming a plutocracy,” and an “invisible government” of large corporations overwhelmed government of the people. ⁹ Voters acted in many states to amend state constitutions, creating the citizen ballot initiative to enable more democracy to check the special interest lock on state legislatures. People in the states intended the initiative process to ensure that “this government shall be brought back to the real control of the people.” ¹⁰

Now the ideology of Citizens United has broken the check and balance of the citizen initiative. In 2012, “corporations and some of the wealthiest Americans” spent more than a billion dollars in initiatives in just eleven states, “an unprecedented explosion of money used to pass new laws and influence the public debate.” ¹¹ In the state of Washington, corporations such as Monsanto, Pepsico, Nestle, and Dupont spent more than $20 million to defeat a ballot initiative to require disclosure of genetically modified organisms (GMOs) in food. Of that $20 million, only $600 came from people or businesses in the state itself. ¹²

Even small cities and towns have felt the impact of Citizens United. In Richmond, California, a community of 100,000 people, a single corporation—Chevron again—spent $1.2 million to control the outcome of the city council election. Richmond Mayor, Gayle McGlaughlin, says that Chevron will spend another $2 million in city elections in 2014. A Richmond citizen serving on the city council, Tom Butt, adds, “They want a city council loyal to them. I think it’s wrong for a corporation to pour that kind of money into a local election. Nobody can match that.” ¹³

Most Americans agree, but that does not matter, according to Citizens United. Corporations and unions now have the same rights under the First Amendment as people. And if “free speech” means unlimited election spending by the powerful, that cannot be “infringed.”

The Citizens United Decision

In Citizens United, the Court struck down the federal Bipartisan Campaign Reform Act (also known as McCain-Feingold, after its Republican and Democratic sponsors). The Bipartisan Campaign Reform Act had banned electioneering spending by corporations and unions for or against specific candidates within sixty days of a federal election. The law was intended to prevent corporations and unions from bypassing election integrity and anticorruption laws dating back more than a century. ¹⁴

The case is called Citizens United because a Virginia nonprofit corporation by that name sued the Federal Election Commission to challenge the corporate spending restriction in the Bipartisan Campaign Reform Act. Citizens United, the corporation, wished to use its corporate money and donations from for-profit corporations to make and distribute what the Court described as a feature-length advertisement against Hillary Clinton, who was running for president when the case began. Further, Citizens United sought to do this within the sixty-day period before an election when the law restricted corporate spending on electioneering activity. According to Citizens United, the law violated corporations’ First Amendment rights of free speech because it prevented Citizens United, the nonprofit corporation, from engaging in electioneering activity and did not allow for-profit corporations to contribute to that campaign to influence the election. ¹⁵

Of course, people are free to make a feature-length advertisement attacking a powerful senator running for president if that is what people wish to do, and people may pool their money to do this. That is essential for political participation. At first blush, the background to the case seemed to warrant concern about government restrictions on the free ability of people to pool resources to advocate views.

The Court majority in Citizens United, however, was not content to leave the case at first blush. Instead, they saw an opportunity to throw out a century of law they thought too restrictive of corporations. In the end, the Citizens United decision decreed that all corporations (and all unions) have a constitutional right to spend unlimited money in any American election—federal, state, local, and judicial.

The Supreme Court had rejected this argument only a few years earlier, when Justices William Rehnquist and Sandra Day O’Connor were still on the Court. In 2003, in the case of McConnell v. Federal Election Commission, the Court ruled that the very same corporate spending provision in the McCain-Feingold law did not violate the First Amendment. In McConnell, the Court agreed that Congress may make different election spending rules for corporations than for people. The Court in McConnell followed the 1990 case of Michigan Chamber of Commerce v. Austin, in which another majority of the Court had ruled that corporate money, aggregated with advantages that come from the government, is not the same as people’s money pooled together. Corporate spending in elections can be restricted because government creates the advantages for corporations to make them effective in the economic sphere, and the same advantages pose dangers in the political sphere.

Now in Citizens United, the Court, with the additions of a new chief justice, John Roberts, and a new justice, Samuel Alito, threw out McConnell and Austin. The Citizens United Court said its earlier decisions were wrong. The Court struck down the McCain-Feingold law as a violation of free speech rights and invited billions of corporate dollars into American elections.

Justice Anthony Kennedy wrote the opinion in Citizens United for the Court. At first, Justice Kennedy’s opinion sounds like a ringing defense of free speech and American democracy. He writes that the government may not “ban speech.” Yes! All “speakers” must be allowed and no “voices” may be silenced. Yes! The government cannot restrict a “disadvantaged person or class” from speech. Yes! All “citizens, or associations of citizens,” must have a right to get their views about candidates or anything else out to the people. Of course!

But wait. Who are these “voices,” “speakers,” and “disadvantaged persons”? They are corporations, particularly global corporations with trillions of dollars in revenue and profits. And what was this onerous “ban on speech”? A rather weak law that said a corporation may not, within sixty days of an election, spend its “general treasury” money to support or attack candidates for federal office. That’s it.

The Court announced its decision on a cold January day in 2010 when most Americans were anxious about millions of job losses, angered by national debt and massive deficits deepened by corporate bailouts, and worried about our military and global strength overstretched by distant wars while China, Germany, and other economic powerhouses at peace charged ahead. Now the Supreme Court says corporations are “disadvantaged persons” with “rights” that trump and invalidate our laws?

The Initial Response

Immediately, four dissenting justices on the Court, led by eighty-nine-year-old Justice John Paul Stevens, sounded the alarm. Justice Stevens’s ninety-page dissent, among his last work before retiring, may be his greatest legacy.

Stevens, born and raised in Chicago, had enlisted in the US Navy on December 6, 1941, the day before the Japanese attack on Pearl Harbor, and received the Bronze Star for his service in World War II. He then began a twenty-five-year career as a lawyer and represented numerous corporations in antitrust cases. In 1969, Stevens led the investigation and prosecution of corrupt judges in Illinois and was hailed for his fair, honest, and determined approach. A Republican, he was appointed to the Court by President Gerald Ford in 1975. It would be difficult to find a more honest, moderate, and balanced judge.

Alarmed by the majority’s decision, Stevens took the unusual step of reading his dissent aloud in the Supreme Court’s public chamber. Although the elderly judge’s voice at times faltered, his words were unmistakable. Stevens called the Court’s action in Citizens United a “radical departure from what has been settled First Amendment law.” He blasted the Court’s conclusion that corporations, “like individuals, contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster.” Justice Stevens said that “glittering generality” obscured the truth about what Citizens United really meant for America, already suffering from undue influence of corporate power. Then Justice Stevens said this:

The Framers [of our Constitution] thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues [on the Supreme Court], they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind….

At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

Rejection of the Citizens United decision crossed all political lines. President Obama called the decision a “strike at the heart of democracy.” John McCain, the 2008 Republican presidential candidate, put it bluntly: “What the Supreme Court did is a combination of arrogance, stupidity, and naivete, the likes of which I have never seen.” ¹⁶ Others, including members of Congress, labeled Citizens United the worst decision since the Supreme Court ruled in the 1856 case of Dred Scott v. Sanford that African Americans could never be American citizens. A founder of the Tea Party said, Citizens United “just allows them to feed the machine. Corporations are not like people. Corporations exist forever; people don’t. Our founding fathers never wanted them; these behemoth organizations that never die. … It puts the people at a tremendous disadvantage.” ¹⁷

Polls confirmed that more than 75 percent of Independents, Republicans, and Democrats alike rejected the decision. ¹⁸ People formed groups to launch a constitutional amendment campaign to overturn the decision and corporate rights, and pushed for public funding of elections, disclosure, and other reform to lessen the damage of Citizens United.

Since that January day in 2010, millions of Americans have signed petitions calling on Congress to send a constitutional amendment reversing the Court’s decision in Citizens United to the states for ratification. Many worked in their communities to enact constitutional amendment resolutions. By the beginning of 2014, constitutional amendment resolutions had passed by overwhelming margins in sixteen states and more than 500 cities and towns in every region of the country. Put on notice, more than 160 members of the House and Senate have cosponsored constitutional amendment bills. ¹⁹

Why this reaction? The real people are not buying the metaphors of corporations as “speakers” or “disadvantaged persons.” They do not agree that corporate and union money is simply another “voice.”

Rather, most Americans understand two fundamental truths about our Constitution and system of government that the Court got wrong: First, corporations are not entitled to the inherent, human rights that “we, the people” wrote into our Constitution. Large corporations already have far too much power in America and across the world, and requiring that we allow that power to be deployed without limit in elections and government will be the death of democracy and republican government. Second, with respect to elections and representation in government, every American, rich or poor, has the same right to speak, participate, be represented in government, and serve if their fellow citizens so desire. At election time and in governing, Americans indeed are created equal. We are citizens, not mere spectators to arguments among factions of the rich.

Senator John McCain summed it up: “[We] need a level playing field and we need to go back to the realization that Teddy Roosevelt had that we have to have a limit on the flow of money, and that corporations are not people.” ²⁰

Roots of Citizens United: Earth Day 1970

To see how the Citizens United disaster happened, we need to go back to the 1970s and the formation of the organized corporate campaign to put American democracy on a leash. First came a wave of engaged citizens and responsive government, then came the corporate reaction. Citizens United could not have resulted without the deliberate drive for corporate power and rights that began four decades ago. ²¹

After a century of industrialization, Americans had by 1970 had enough of corporations using our rivers, air, oceans, and land as sewers and dumps, leaving most people and communities with the costs and giving the profits to shareholders. One day in April 1970, twenty million Americans of every age and political party came out into the streets and the parks to celebrate the first Earth Day. They demanded a better balance between corporations and people and better stewardship of our land, water, and air. Look at the photos from this first Earth Day and you will see families with children, men in suits and ties and neatly dressed women, working- and middle-class Americans, people of all ages and races.

These millions continued a longstanding American principle of guarding against concentrated corporate power that might overwhelm the larger interests of the nation. This nonpartisan tradition goes back not only to Franklin Roosevelt’s New Deal, not only to Theodore Roosevelt’s Square Deal, but to the founding of America. James Madison, a chief architect of the Constitution, wrote in the early 1800s that “incorporated Companies with proper limitations and guards, may in particular cases, be useful; but they are at best a necessary evil only.” ²² Always willing to be more colorful, Thomas Jefferson said that he hoped to “crush in its birth the aristocracy of our monied corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.” ²³

In the 1830s, President Andrew Jackson and his allies battled against the partisan activity of the Second Bank of the United States, a corporation. Jackson pressed the urgent question of “whether the people of the United States are to govern through representatives chosen by their unbiased suffrages or whether the money and power of a great corporation are to be secretly exerted to influence their judgment and control their decisions.” ²⁴ Even President Martin Van Buren, hardly a radical, warned of “the already overgrown influence of corporate authorities.” ²⁵

That first Earth Day in 1970 again awakened our government to the necessity of restoring the balance of corporate power and public interest, of those who control powerful corporations and the rest of Americans. With a Republican president in the White House and bipartisan support in Congress, the extent of reform that quickly followed in the months and a few short years after the first Earth Day remains astonishing:

 Environmental Protection Agency

 Clean Water Act

 Federal Water Pollution Control Amendments

 Clean Air Act Extension

 Toxic Substances Control Act

 Safe Drinking Water Act

 Wilderness Act

 Surface Mining Control and Reclamation Act

 Endangered Species Act

 Marine Mammal Protection Act

 Resource Recovery Act

 First fuel economy standards for motor vehicles

These 1970s reforms were long overdue. For a time, they worked, and they made a profound difference in the quality of life of the vast majority of Americans. No longer could dumping untreated sewage and toxic waste in our waters be considered a standard business practice; no longer could corporations walk away from hazardous waste and chemical sites; more wilderness areas preserved more of our birthright and that of future Americans; new laws rejected the industry view that we just had to live with the discharge of brain- and organ-damaging lead from millions of cars and the spread of lead paint in every building in the land; access to clean, safe water was assured for far more Americans; and much more.

The market did not do this. We did this by acting as citizens in a republic.

As with every time in American history, of course, the 1970s were times of crisis and challenge. Yet the American people worked the levers of democracy and saw a connection between those levers—voting, organizing, debating, petitioning, marching—and our government’s conduct.

Environmental balance was not all. We often remember the strife and problems of the late 1960s and early 1970s but think of the progress for the country: in race and gender equality; ending the Vietnam War; real wage growth for average Americans; global leadership in trade and commerce and manufacturing; steady, comprehensive, creative, and effective resistance across the globe to dictatorial communism; public accountability when the president broke the law; more open government and better congressional oversight; manageable debt and budgets in Washington, D.C., and the states; employee rights and safety; and a constitutional amendment to enfranchise millions of Americans from eighteen to twenty years old. The people demanded change; our government delivered change.

The biggest corporations on the planet, however, did not celebrate the responsive democracy that followed Earth Day. Instead, they organized to fund a sustained program to take political power and rights for themselves and away from average Americans. With Citizens United, we see the end game of this project, but it has been years in the making.

1971: Lewis Powell and the
“Activist-Minded Supreme Court”

In late August 1971, Lewis Powell, a mild-mannered, courtly, and shrewd corporate lawyer in Richmond, Virginia, soon to be appointed to the US Supreme Court, wrote a memorandum to his client, the US Chamber of Commerce. The next day, he traveled to the Chamber’s offices in Washington, D.C., to meet with the leaders of the powerful lobby. There, Powell outlined a critique and a plan that changed America. ²⁶

Powell, like the Citizens United dissenter Justice John Paul Stevens, was a decorated World War II veteran who had returned home to build a respected law practice. By all accounts, he was a gentleman—reserved, polite, and gracious—and a distinguished lawyer and public servant. Commentators and law professors cite Powell’s “qualities of temperament and character” and his “modest” and “restrained” approach to judging. ²⁷ At his funeral in 1998, Sandra Day O’Connor, who had joined the Supreme Court in 1987, said, “For those who seek a model of human kindness, decency, exemplary behavior, and integrity, there will never be a better man.” ²⁸ Even the rare critic will cite Lewis Powell’s decency and kindness. ²⁹

Much about these accounts must be true, but none tells the whole story of Lewis Powell. All of them, and even the principal Powell biography, omit the details of how he used his gifts to advance a radical corporate agenda. It is impossible to square this corporatist part of Powell’s life and legacy with any conclusion of “modest” or “restrained” judging.

Powell titled his 1971 memo to the US Chamber of Commerce “Attack on American Free Enterprise System.” “No thoughtful person,” he explained, “can question that the American economic system is under broad attack.” In response, corporations must organize and fund a drive to achieve political power through “united action.” Powell emphasized the need for a sustained, multiyear corporate campaign to use an “activist-minded Supreme Court” to shape “social, economic and political change” to the advantage of corporations.

Powell continued:

But independent and uncoordinated activity by individual corporations, as important as this is, will not be sufficient. Strength lies in organization, in careful long-range planning and implementation, in consistency of action over an indefinite period of years, in the scale of financing available only through joint effort, and in the political power available only through united action and national organizations.

The roots of Citizens United lie in Powell’s 1971 strategy to use “activist” Supreme Court judges to create corporate rights. “Under our constitutional system,” Powell told the US Chamber of Commerce, “especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.”

Powell’s call for “business to go on the offensive” should not be misunderstood as a “conservative” or “moderate” reaction to the excesses of “liberals” or “big government.” Rather, to understand the perspective of Powell and his allies is to understand the difference between a conservative and a corporatist.

Powell and the Tobacco Corporations Show the Way

By 1971, Lewis Powell was a director of more than a dozen large corporations, including Philip Morris Inc., a global manufacturer and seller of cigarettes. Powell joined the Philip Morris board of directors in 1964, when the corporation sought to mitigate the US Surgeon General’s report about the grave dangers of smoking. Powell remained a director, and an executive committee member, of the cigarette company until his appointment to the Supreme Court in 1971. Powell also advised the Tobacco Institute, a lobbying and misinformation shop that was stripped of its corporate charter in the 1990s after decades of using phony science and false statements to create a fraudulent “debate” about smoking and health. ³⁰

The cigarette corporations’ response to public efforts to address addiction, smoking, and health is a big part of the larger story of how corporations undermined the Constitution and American democracy. The tobacco companies, with Powell’s encouragement, began testing the ideas that Powell urged upon the US Chamber of Commerce in 1971. By a campaign of aggressive resistance to efforts to address the devastating social and public costs of its lethal products, the cigarette corporations created a model. As a director and an executive committee member of Philip Morris, Powell shared responsibility for the fraudulent attack on the conclusions of scientists and the surgeon general by the cigarette industry and for its false insistence for years that “no proof” showed cigarettes to be unhealthy.

Hints of this work can be seen in the Philip Morris annual reports issued during Powell’s tenure as a director. We now know, thanks to recent findings of a federal judge, that many of the assertions in these annual reports were knowingly false. According to the reports themselves, these statements and others were made “on behalf of the board of directors,” including Powell:

Powell endorsed these false statements as a director and executive committee member. He also actively encouraged the disinformation campaign, congratulating the Philip Morris CEO for the company’s “attacks” (as the industry called it) on the American Cancer Society and urging the CEO to “restrain” the “extremism” of the Cancer Society and scientists. ³¹

Absent proof, it might be reckless to say that Philip Morris and the other tobacco corporations engaged in a willful, aggressive, wide-ranging conspiracy and racketeering enterprise so that the corporations could sell more products that kill people. Now that the evidence is in, however, we know that this is exactly what happened. We know, thanks to scientists, victims of the conspiracy, state attorneys general (both Democrats and Republicans), the US Department of Justice (under both Presidents Bill Clinton and George W. Bush), and Judge Gladys Kessler and a panel of US Court of Appeals judges appointed by Presidents Ronald Reagan, Bill Clinton, and George H. W. Bush.

In 2006, the US Department of Justice took the cigarette corporations to trial, alleging that they had engaged in a racketeering conspiracy. Eighty-four witnesses testified in the nine-month trial, and hundreds of internal corporate secrets were finally exposed. When the verdict came in, Judge Kessler concluded that “overwhelming evidence” proved that the cigarette corporations “conspired together” to fraudulently deny that cigarettes caused cancer, emphysema, and a long list of other fatal diseases; to manipulate levels of highly addictive nicotine to keep people smoking; to market addictive cigarettes to children so that the corporations would have “replacement smokers” for those who quit or died; and that they “concealed evidence, destroyed documents, and abused the attorney-client privilege to prevent the public from knowing about the dangers of smoking and to protect the industry” from justice. ³²

As counsel to the cigarette industry and as a Philip Morris director, Powell already had begun testing the use of activist-minded courts to create corporate rights. In one case in the late 1960s, Powell argued that any suggestion that cigarettes caused cancer and death was “not proved” and was “controversial.” According to Powell, the Federal Communications Commission wrongly violated the First Amendment rights of cigarette corporations by refusing to require “equal time” for the corporations to respond to any announcement that discouraged cigarette smoking as a health hazard. ³³

Even the US Court of Appeals for the Fourth Circuit, based in the tobacco-friendly South, rejected this claim. Although Powell lost that time, he went on to win far more than he could have imagined after he got on the Supreme Court and helped change the Constitution.

Powell’s 1971 memo to the US Chamber of Commerce laid out a corporate rights and corporate power campaign. The Chamber and the largest corporations then implemented these recommendations with zeal, piles of money, patience, and an activist Supreme Court. In equating corporations with “We, the People” in our Constitution, no justice would be more of an activist than Lewis Powell after he joined the Supreme Court in 1972.

1972: Powell Gets His Chance

In January 1972, the US Senate confirmed President Nixon’s nomination of Lewis Powell to the Supreme Court. In a private farewell dinner, The Philip Morris CEO hosted a celebration of Powell’s achievement and the corporation provided him with a judicial robe to wear during his service on the Court. ³⁴

President Nixon filled two Supreme Court vacancies that month, the other going to William Rehnquist, a conservative Republican lawyer from Phoenix, Arizona. Rehnquist had never been shy about his conservative views, which were well known and, to some, controversial. At the same time, neither Congress nor most Americans knew of Powell’s corporatist views. In his Senate confirmation hearing, no one asked about his recent proposal to the US Chamber of Commerce recommending the use of an “activist-minded Supreme Court” to impose those views on the nation. No one asked because Powell, and the Chamber kept Powell’s memo secret; neither disclosed the memo during his background check or confirmation proceedings. ³⁵

Once on the Court, these two Nixon appointees followed very different paths. Justice Powell would go on to write the Court’s unprecedented decisions creating a new concept of “corporate speech” in the First Amendment. Using this new theory, the Court struck down law after law in which the states and Congress sought to balance corporate power with the public interest. With increasing assertiveness after Powell retired in 1987, the Supreme Court has used the new corporate rights theory to invalidate laws concerning food, the environment, public health and drugs, financial and insurance reform, and more. ³⁶

Powell helped shape a new majority, but several justices resisted the new model of “corporate rights.” The most vigorous resistance came from the conservative Justice William Rehnquist. He grounded his dissents in the fundamental proposition that our Bill of Rights sets out the rights of human beings, and corporations are not people. For years, Rehnquist maintained this principled conservative argument, warning over and over again that corporate rights have no place in our republican form of government. ³⁷

Here Come the Foundations

Despite the Rehnquist dissents, Powell’s vision of an unregulated corporate political “marketplace,” where corporations are freed by activist courts from the policy judgment of the majority of people, won out. Powell, of course, could not have acted alone. He could not have moved a majority of the Court to create corporate rights if no one had listened to his advice to organize corporate political power to demand corporate rights. Listen they did—with the help ofjust the sort of massive corporate funding that Powell proposed.

Corporations and corporate executives funded a wave of new “legal foundations” in the 1970s. These legal foundations were intended to drive into every court and public body in the land the same radical message, repeated over and over again, until the bizarre began to sound normal: corporations are persons with constitutional rights against which the laws of the people must fall.

Huge corporations, including Powell’s Philip Morris, invested millions of dollars in the Chamber of Commerce’s National Chamber Litigation Center and other legal foundations to bring litigation demanding new corporate rights. In rapid succession, corporations and supporters funded the Pacific Legal Foundation, the Mid-Atlantic Legal Foundation, the Mid-America Legal Foundation, the Great Plains Legal Foundation (Landmark Legal Foundation), the Washington Legal Foundation, the Northeastern Legal Foundation, the New England Legal Foundation, the Southeastern Legal Foundation, the Capital Legal Center, the National Legal Center for the Public Interest, and many others. ³⁸

These foundations began filing brief after brief challenging state and federal laws across the country, pounding away at the themes of corporations as “persons,” “speakers,” and holders of constitutional rights. Reading their briefs, one might think that the most powerful, richest corporations in the history of the world were some beleaguered minority fighting to overcome oppression. The foundations and the corporate lawyers argued, “Corporations are persons” with the “liberty secured to all persons.” They used new phrases like “corporate speech,” the “rights of corporate speakers,” and the “corporate character of the speaker.” They demanded, as if to end an unjust silence, “the right of corporations to be heard” and “the rights of corporations to speak out.”

This campaign sought to redefine the very role of corporations in American society. The message was insistent: We should no longer think of corporations as useful but potentially insidious industrial economic tools. We should no longer be concerned that corporations might leverage massive economic power into massive political power or trample the public interest for the profit of the few. Instead, we should think of corporations as pillars of liberty, institutions that Americans can trust. They would protect our freedom for us. They would stand up to “government” for us.

A 1977 brief written by the Chamber of Commerce, for example, argued that the Court should strike down a state law that limited corporate political spending in citizens’ referendum elections because corporations help maintain our freedoms: “Business’s social role is to provide the people a valuable service which helps maintain their freedoms. … The statute at issue prevents the modern corporation from fulfilling a major social obligation. …” ³⁹

By 1978, the millions of dollars that corporations invested in this campaign began to pay off. The first major victory came in 1978 with a successful attack on a Massachusetts law in First National Bank of Boston v. Bellotti. Several international corporations—including Gillette, the Bank of Boston, and Digital Equipment Corporation—filed a lawsuit after the people of Massachusetts banned corporate political spending intended to influence a citizen ballot initiative. Justice Lewis Powell cast the deciding vote and wrote the 5-4 decision wiping off the books the people’s law intended to keep corporate money out of citizen ballot questions. ⁴⁰ For the first time in American history, corporations had successfully claimed “speech” rights to attack laws regulating corporate money in our elections.

With that success, an emboldened corporate rights campaign next attacked energy and environmental laws. In the 1982 case of Central Hudson Gas & Electric Corporation v. Public Service Corporation of New York, utility corporations and the new array of corporate legal foundations all argued that a New York law prohibiting utilities from promoting energy consumption violated the corporations’ rights of free speech. The corporations won again, and again Justice Powell wrote the decision for the activist Supreme Court that he had imagined in his 1971 Chamber of Commerce memo. The corporate interest in promoting energy consumption for corporate profit trumped the people’s interest in energy conservation. ⁴¹ Over a period of six years, Justice Powell wrote four key corporate rights decisions for the Supreme Court. These unprecedented cases transformed the people’s First Amendment speech freedom into a corporate right to challenge public oversight and corporate regulation.

Powell led a majority of the Court to accept the repeated mantra that “corporations are persons” and corporate “voices” must be free, and the sustained attacks on the people’s laws continued for the next two decades. Oil, coal, and utility corporations, tobacco corporations, chemical and pharmaceutical corporations, alcohol corporations, banking and other Wall Street corporations, and many others all successfully claimed corporate speech rights to invalidate federal, state, and local laws. As you will see in Chapter Two, corporations even succeeded in attacking the right of parents to know whether the milk they fed their children came from cows treated with Monsanto’s genetically engineered recombinant DNA bovine drug.

In 2007, the Chamber of Commerce’s National Chamber Litigation Center celebrated thirty years of using judicial activism on behalf of corporations and admitted that it was the “brainchild of former US Supreme Court Justice Lewis Powell.” The brainchild, with its motto of “Business Is Our Only Client,” bragged about such “victories” as convincing the Supreme Court to throw out a decision by a jury of people to impose punitive damages for the unlawful conduct of Philip Morris. ⁴²

The Consequences

The success of the Powell-Chamber of Commerce plan transformed American law, government, and society, with two devastating consequences for the country. First, corporations gained vastly increased political power at the expense of average citizens. Corporations poured out money to lobbying and election campaigns and to help friendly politicians and hurt unfriendly politicians. With even modest reform crushed by corporate rights decisions such as First National Bank of Boston v. Bellotti—and now much more so, Citizens United—corporations could threaten and deliver “independent expenditure” campaigns against politicians who did not bend their way. Corporate money to influence legislative votes and politician behavior lost its scandalous, shameful nature. Bags of corporate cash were no longer bags of cash; they were “speech.” How could “speech” be corrupt or scandalous?

Washington, D.C., and many state capitals became playgrounds for corporate lobbyists, and our elected representatives became increasingly disconnected from the will of the people. With the new, organized corporate radicalism, staggering amounts of corporate money flooded Washington, D.C., and our political system. Between 1998 and 2013, for example, the Chamber of Commerce alone spent more than $1 billion on lobbying. ⁴³ Pharmaceutical and health care corporations spent more than $5.7 billion on lobbying in those years. ⁴⁴ Three corporations seeking military contracts—Northrop Grumman Corporation, Lockheed, and Boeing—spent more than $660 million on lobbying. GE Corporation ($298 million), AT&T ($162 million), the pharmaceutical lobby PHRMA ($246 million), ExxonMobil ($193 million), Verizon ($183 million), and many more corporations all joined the lobby-fest. ⁴⁵ In the states, corporate-funded lobbying entities such as the American Legislative Exchange Council (ALEC) and the State Policy Network began to dominate legislatures. ⁴⁶ Financial, labor, energy, environmental, health care, trade, and other policy tilted sharply in favor of corporate interests; the hurdles for advancing the public interest became much higher.

Second, “corporate rights” created a corporate trump card over public interest laws. If laws that were inconvenient to corporate business models somehow made it through the lobbyist machine, corporations now had constitutional “rights” to attack the laws in the courts. It no longer mattered if the majority of people and our representatives chose laws to curb pollution, require disclosure, protect the public health, or nurture small businesses and local economies. The democratic process was no longer enough to decide the issue. After the creation of “corporate speech” rights, it was now up to judges, rather than the people, to decide whether the law served an “important” interest and was not too “burdensome.”

And not just any judges would make these decisions. As with the other branches of government, corporations have captured the courts. Several recent studies by legal scholars confirm that the current Supreme Court favors corporations over people more than ever before, and the impartiality of justice in the states is eroding rapidly. ⁴⁷ After Citizens United, corporate interests began dumping ever more money into state judicial elections. In twenty state Supreme Court elections in 2012, the campaigns spent $56 million (compared with less than $6 million in 1990). Ten donors alone contributed $19.6 million, with much of the money coming from R. J. Reynolds Tobacco and other corporations. ⁴⁸ According to the American Constitution Society, “The data confirm a significant relationship between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters.” ⁴⁹

The Lost Promise of Earth Day

On that long ago Earth Day in 1970, Americans reclaimed the water, air, land, and forests that belong to all of us and to our descendants. We reclaimed the promise of government of the people, where people and our representatives would weigh, debate, and decide the balance of private and public, corporate and human. Since that spring day in 1970, we have pushed resources and the ecological systems on which life depends to the breaking point. Even as the oil, gas, and coal corporations mimic the strategy of the cigarette corporations to create a fraudulent “controversy” and “open question” about the global warming “hoax,” we have ripped past the point of no return on climate catastrophe.

Although the evidence of national and global environmental destruction at a level that will challenge our civilization and way of life is more compelling now than it was back in 1970, our leaders in government are not even debating, let alone enacting, possible solutions. Incredibly, the current debate in Congress is not what we can do to save our world but whether Congress should strip the Environmental Protection Agency of its authority to regulate pollution that causes the global climate crisis.

Corporate media might tell you that the reason for inaction is that Americans oppose environmental regulation and oppose drastic changes to address the energy and environmental crisis. Yet there is little reason to believe that this is true. In fact, try an experiment. Find a moment to talk seriously in a nonpolitical, nonconfrontational way with your friends, neighbors, or family members, regardless of what political party or philosophy they may favor. I bet that you will find that they, too, think that we cannot rely on corporations to protect freedom for us and that corporate business as usual will condemn us to disastrous energy, economic, and environmental policies and will ensure that we pass to our children a very bleak and weak nation and world.

This basic understanding of the connection between our state of decline and crisis on one hand, and our corporate-driven energy, environmental, economic, foreign, and military policy on the other, is one of the many points of consensus among the American people that the corporatist political elite ignores. According to an independent, nonpartisan 2010 Pew Research poll, for example, huge majorities of Americans favor better fuel efficiency standards for cars and trucks (79 percent), more funding for alternative energy (74 percent), more spending on mass transit (63 percent), and tax incentives for hybrid or electric vehicles (60 percent).

Similarly, for years, most Americans have supported, and still support, stronger, not weaker, environmental and energy policies. This is true even in times of recession, terrorism, and deep concern about budgets. From 1995 to 2008, when the independent multiyear Gallup poll question was last asked, through every variety of political environment, from good economies to bad, from terrorist attacks to war, the American people have been consistent in their response. More than twice as many Americans say we need “additional, immediate, and drastic action” to prevent major environmental disruption compared to those who say “we should just take the same actions we have been taking on the environment.” The percentage of those identifying a need for “drastic, immediate action” was 35 percent in 1995, 38 percent in 2007, and 34 percent in 2008. When you add in those who say “we should take some additional action,” the range of Americans who want better, stronger, tougher environmental protection stayed between 80 and 90 percent for more than a decade. The percentage of those who chose the status quo answer (“we should just take the same actions we have been taking on the environment”) ranged from 13 to 20 percent. And even after years of corporate-funded confusion and denial about the environment, the vast majority of Americans still worried about the quality of the environment (69 percent) and global warming (58 percent) “a great deal” or “a fair amount”; only 16 percent believe that our government does “too much” to protect the environment. ⁵⁰

Polls are not infallible, but I suspect that these results would be duplicated in most family discussions around the dinner table. And I believe that we would see a similar disconnect between what people know about the state of our nation and the world and what the corporate-dominated government does. Whether the issue is the environment, the economy, the decades of wars in the Middle East, bloated military budgets, corporate agriculture subsidies and industrial food systems, or other corporate welfare, what most people think or want out of our government does not matter much anymore.

We have become accustomed to thinking that we cannot change, that our problems are too big, that our government cannot be effective. This was not always so, and it does not have to be so now. The choice we face in America now about whether to succeed or fail begins with our choice about whether we agree with Lewis Powell, the US Chamber of Commerce, and the corporate rights movement that massive, global corporate entities are the same as people.