Let’s Take Constitution Day Seriously

September 17, 2013
Guest Post

by Robert A.G. Monks and Jeff Clements. Mr. Monks is author of Citizens Disunited: Passive Investors, Drone CEOs, and the Corporate Capture of the American Dream, a corporate governance adviser and shareholder activist. He serves on the legal advisory committee of Free Speech For People. Mr. Clements is the co-founder and president of Free Speech For People and the author of Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About it. This post is part of our 2013 Constitution Day symposium.

September 17 is Constitution Day in America; an ideal time to reflect on the challenges our Constitution faces today.  

Two hundred and twenty six years ago, delegates to the Constitutional Convention in Philadelphia signed the proposed Constitution and left Independence Hall. Outside, a passerby asked a delegate, Ben Franklin, what kind of government had emerged. The 81 year-old Franklin replied, “A republic, if you can keep it.” 

Will we be able to keep it? In our time, the answer to that question largely depends on addressing the problem of our government’s capture by the largest corporations and the extraordinarily wealthy who participate in our corrupt and dangerous pay-to-play political system.

With the infamous Citizens United v. FEC opinion, a narrow but determined ideological majority on the U.S. Supreme Court challenges the foundation of the American Republic: According to the Court, the political equality of every citizen is not a legitimate interest to be served by campaign finance laws. 

Now here comes another challenge in the Court’s new term, McCutcheon v. Federal Election Commission. The McCutcheon case seeks to dismantle the $123,000 limit on total contributions to federal candidates. Who has a spare $123,000 a year to buy fidelity from politicians? Not too many.

Between 2010 and 2012, a small group of people poured more than $18 billion into state and federal elections. How small a group? According to a report issued by Demos and the US Public Interest Research Group, just “47 individuals, donating $1 million or more, were responsible for more than half the individual contributions to Super PACs -- and only 6 percent came from donations under $10,000.” 

And what about corporations? The global oil giant Chevron openly dropped $2.5 million into the Speaker of the House of Representatives’ PAC, with only yawns from a jaded political class incapable of seeing scandal at the end of their noses. Chevron even spent $1.3 million in a city council election in Richmond, Calif., a community of 100,000 people where Chevron runs a dirty and dangerous refinery.  

The U.S. Chamber of Commerce, doing the bidding of global corporations, spent more than $35 million -- the source of which is secret -- in the 2012 election, and has now passed the $1 billion mark in lobbying spending since 1998.  

While wages, opportunities and any real voice in government for most Americans shrink, Wall Street gets taxpayer bail-outs, special low tax rates, and obstruction of significant reform.  Fossil fuel corporations get billions in tax subsidies, military protection around the globe, and escape accountability for climate catastrophe. Congress passes what many call the “Monsanto Protection Act” to exempt decisions about genetically modified crops from judicial review, and the United States remains one of the only democracies on the planet that fails to label GMO food. The firearms industry gets a free pass from any responsibility for the 30,000 Americans who die every year from guns. 

This is how republics fail.  But there’s more to the story.

The “corporate capture of the courts,” as Sen. Elizabeth Warren (D-Mass.) described it during a speech at this year’s ACS National Convention, goes beyond the issue of money in politics. The same “corporate speech rights” fabricated by the Court in Citizens United now are used with regularity to strike down laws deemed unfriendly to corporate profits.

Our courts are creating astounding new corporate constitutional rights. The pharmaceutical industry has a right to traffic in private prescription information, driving up health care costs. Utility corporations have a right to promote energy consumption in defiance of conservation policies. Cigarette corporations have a right to eliminate warning labels. Verizon and the telecommunications industry even claim a constitutional right to secretly turn over customer data and information to the government.

If Americans are determined to keep our republic, we have a lot of work to do. September 17 is a day for commemoration but it also is a day for honest appraisal and recommitment to constitutional principle. 

Three essential steps are necessary: we need to join and support the broad-based, non-partisan movement for a constitutional amendment to correct the Supreme Court’s disastrous mistake in Citizens United, and to enable sweeping campaign finance and lobbying reform. We need expanded advocacy in the courts to roll back corporate-dominated jurisprudence. And we need a new era of public responsibility and accountability from the largest corporations and those who own shares in them.  

A republic is never guaranteed. These steps, though, will take us far toward a new century of self-government by a free and equal people.