'Citizens United' and the Corporate Court

 “And may the odds be ever in your favor.”
                  —Effie Trinket, announcer for the corporate state in The Hunger Games
 
We live in what will surely come to be called the Citizens United era, a period in which a runaway corporatist ideology has overtaken Supreme Court jurisprudence. No longer content just to pick a president, as five conservative Republicans on the Rehnquist Court did in 2000, five conservative Republicans on the Roberts Court a decade later voted to tilt the nation’s entire political process toward the views of moneyed corporate power.

In Citizens United (2010), the Court held that private corporations, which are nowhere mentioned in the Constitution and are not political membership organizations, enjoy the same political free speech rights as people under the First Amendment and may draw on the wealth of their treasuries to spend unlimited sums promoting or disparaging candidates for public office. The billions of dollars thus turned loose for campaign purposes at the direction of corporate managers not only can be but—under the terms of corporate law—must be spent to increase profits. If businesses choose to exercise their newly minted political “money speech” rights, they must work to install officials who will act as 
corporate tools.

The Court, transformed by the addition of Chief Justice Roberts and Samuel Alito, who were nominated by that lucky winner in Bush v. Gore, took this giant step to the right of all prior Courts without even being asked to do so. The petitioner, Citizens United, sought only a ruling that the electioneering provisions of the Bipartisan Campaign Reform Act (better known as McCain-Feingold) didn’t apply to its on-demand movie about Hillary Clinton. But the conservatives sent the parties back to brief and argue the paradigm-shifting constitutional question they were so keen to decide. As dissenting Justice John Paul Stevens observed, the justices in the majority “changed the case to give themselves an opportunity to change the law.”

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How the Right Packed the Court

The Roberts Court’s embrace of business interests has not been equaled since the early 1930s, when conserva-
tive justices—FDR’s “Nine Old Men”—sought to undermine the New Deal. This Court has consistently empowered moneyed interests at the expense of working Americans. This phenomenon is no accident; it is the result of years of dedicated effort by organized corporate interests.

As historian Kim Phillips-Fein writes in her book Invisible Hands, many of the intellectual and institutional antecedents of the modern pro-corporate movement lie in the organized opposition to the New Deal. In assessing the corporate capture of the courts, however, a compelling starting place is the memorandum written in 1971 by Lewis Powell for his friend Eugene Sydnor, an official of the US Chamber of Commerce. At the time, Powell was a corporate lawyer in Richmond, Virginia, representing such interests as tobacco giant Philip Morris, on whose board of directors he served.

Powell’s memo is a return to a time before conservatives had captured our political and legal dialogue. He wrote almost hysterically that “the American economic system is under broad attack” by “Communists, New Leftists and other revolutionaries,” but also by “perfectly respectable elements of society,” including “the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians.” He singled out William Kunstler, Charles Reich, Herbert Marcuse and, most prominently, Ralph Nader as the leading villains. Powell described an apathetic and ineffective corporate community that lacked the stomach and institutional capacity to fight back. He prescribed a broad response that would be funded by large corporations and coordinated by the Chamber of Commerce, big business’s main Washington lobbyist. The Supreme Court would be the centerpiece of this strategy.

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