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Jeffrey Clements - March 9, 2012

March 10, 2012

Olympia correspondent Austin Jenkins of the Northwest News Network updates us on the state budget battle as a special session looms in the legislature. We also talk with attorney Jeffrey Clements, author of "Corporations Are Not People." And our Insiders Roundtable weighs in on the state Senate Republicans budget power play, the state Republican party caucuses, and who will run for Norm Dicks's Congressional seat now that he is not seeking re-election.

Enrique Cerna:
It's been a little more than two years since the U.S. supreme court ruled in the case of the Citizens United versus the federal election commission. In a controversial 5-4 decision, the high court ruled in favor of Citizens United, which allows for unlimited corporate and union spending in elections. The ruling has since led to the creation of super PACs, independent expenditure political action committees. They accept unlimited contributions from individuals, unions, and corporations. And since the ruling, they've been pouring huge amounts of money into our elections. Jeff Clements says it is a threat to our democracy. He's a Massachusetts attorney and the co-founder of free speech for people, a nonprofit, nonpartisan group, that's calling for a constitutional amendment to overturn Citizens United. Clements has also authored a book "corporations are not people, why they have more rights than you do and what you can do about it." Jeff, how much money do you think is going to be spent by these super PACs and along with corporations and unions in this election period?

Jeffrey Clements:
You know, the 2012 election, Enrique, is just off to an early start. And they're already over $50 million on the super PACs, it's quickly moving towards $100 million, and we're in the very earliest stages. It's unclear exactly how much of that is corporate money because there's no disclosure requirement. So we're not able to know for sure. But I've seen estimates at least 30%, maybe more. And I think before this is done, we're likely to see hundreds of millions of dollars of unsourced, undisclosed, or corporate money, or some variety of there from the super PACs and billions of dollars spent overall on this campaign.

Corporations are people too. And you are saying, oh no, they aren't?

Unfortunately, five folks think corporations are people and they sit on the supreme court. And that's what lies underneath Citizens United, the supreme court case that ruled that we the people aren't allowed to regulate corporate money in elections, we can't prevent corporations from spending unlimited money in elections. We've had the power to do that since the republic started. We have had 100 years of keeping corporate money out of elections or trying to with our laws. And because the supreme court said in the Citizens United case that corporations are just like people, corporate money is like speech, we can't restrict it, because that would be restricting speech. And that is the grave fallacy, that if we just pretend that corporations are like people and corporate cash is like speech, we will have a very hard time seeing a government by and for the people. As we've seen already, the voice of the people, the real speech, gets shut out and the corporate money dominates the process.

What was behind this ruling? What had been brewing for years really to then lead up to this change?

On the one hand, we've had a sustained attack on the campaign finance laws, going back to Buckley versus Vallejo, that just ruled, as a matter of fact, rather than a legal interpretation, that independent spending, so called, not corp. coordinated with the candidates, can't have a corrupting effect. It defies logic, it defies what we all know. It can't be really independent if PACs are spending money, if people are spending money, it's not like the candidate doesn't know. But the court ruled in Buckley that campaigns are not allowed to restrict that kind of spending. There's been an attack on any kind of reasonable spending limits. And so it's this dominating idea that money is the same as speech, which really has an effect of saying that values like equality of voices, equal voting, that all of our representation should be equal in an election, that's out the window now. But the other trend, the second one that came together with that in Citizens United, is this notion of corporate speech. It's a fabricated, constitutional doctrine, never existed before 1978, created by a sustained attack on the notion that we have the ability, we the people, to decide amongst ourselves after debate, and legislation, that what kind of public interest laws do we want? What kind of balance between corporate prerogatives and the environment or wages, things like that. This corporate speech doctrine was created and it struck down laws in the public health area, it struck down laws in the environmental area, Monsanto, for example. I tell the story in my book of a dairy farmer in Vermont, Dexter Randall, 65 years old. He heard about Monsanto's genetically modified growth hormone. We got a law passed with his neighbors and doing the thing that we're supposed to do as citizens. At least disclose it on the label, so when you buy milk, or yogurt, or cheese, so you can look and see that this comes from cows that have been treated with this genetically modified drug. Again, illegal in most democracies but at least we should know. It got struck down as a violation of corporate speech. This time, the corporations argue you can't make us say something we're not allowed to say. So we want to know.

One of the things you point out in the book is a former supreme court justice, that is Powell, who is known as a moderate but yet had a lot of impact on this.

In fact, Louis Powell created this doctrine of corporate speech. He was a lawyer in Virginia, Richmond, Virginia. He was on the board of the Phillip Morris tobacco corporation, he was on the board of a dozen other corporations. He was an adviser to the U.S. Chamber of Commerce. And he looked around in April 1970, when we had 20 million Americans coming out into the streets on that first earth day of all walks of life to say, enough of externalizing corporate toxins and poisons, we have to have some balance. And Louis Powell looked at that and he wrote a memo to the chamber of commerce outlining the game plan. He called it the attack on the free enterprise system, that's what he thought of democracy in my view, working to get some balance in our economic and environmental and social policies. He outlined a game plan. He even used the word activist minded supreme court can be the best vehicle for social, legal, and economic change. He said in this memo to the chamber, corporations have to fund a multi-year campaign, corporations have to work together to fund this sustained campaign to change the legal, economic, and social structure of America. And then amazingly enough, six months later, Richard Nixon appoints him to the supreme court. And he gets his chance. Louis Powell wrote four of the decisions that created the corporate speech doctrine that I talked about. And really set the pattern of corporations being described in supreme court cases not as corporations, but as speakers or voices, and created the sort of metaphors that Citizens United used. They used the Louis Powell chamber of commerce play book.

So you say that our democracy is at stake here?

Yeah, I do. Bill Moyers, who I was grateful, did a forward to my book, says that democracy in America has been a series of close calls. We've had close calls where it's been on the line. And I don't think it's an exaggeration to say we're at one of those points where it is on the line. There's a real question right now. Not just in elections, but what happens between elections. I think most Americans know there's a disconnect right now between what most people know we need to be doing, what people expect our government to work on, and what's actually happening. And who actually gets a response out of our government and who doesn't.

Well, let's talk about what you are promoting in the book, and trying to encourage people to get behind what you call a people's rights amendment.

And the people's rights amendment overturns the supreme court and says, no, we're going back to the constitution that it was supposed to be, and that democracy in government were supposed to have of the people. And I want to say, you know, people think, oh, constitutional amendment, that's hard. Well, you're right, it is hard. Democracy's hard sometimes, but we've done it 27 times before. Six of those times overruled supreme court cases. The supreme court ruled that women don't get the right to vote. The supreme court ruled that African-Americans have no rights under our constitution. The supreme court ruled that the congress has no power to enact a progressive income tax. Imagine being the folks who had to get the income tax amendment to the constitution, but they did it. And so, you know, we need every now and then in our country to decide what kind of people are we.

One last thing. What's your time line?

Well, time lines with constitutional amendments are hard to say. Because there is no time line set out. We need eventually two thirds of a vote of the house and Senate and congress, and then that has to be ratified by three quarters of the states. So some amendments have happened very fast. The amendment in 1970 that lowered the voting age to 18, that took only a few months. I would hope that this election is really showing people we have to move fast. And then I would hope that we'll get this amendment in the next few years.



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