Welcome to the (New) Gilded Age: Supreme Court Delivers the Goods to Corporations

I hope we shall… 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. —Thomas Jefferson, letter to George Logan, 1816

Of last week’s two domestic temblors—the Massachusetts vote on Tuesday and the Supreme Court’s ruling on Thursday—the second is the one that should really be giving us night sweats. The Court’s Unfab Five (Roberts, Alito, Scalia, Thomas, and Kennedy) landed a devastating blow to the body politic and to the entire concept of popular sovereignty. I told a friend that as a practical matter, we might just dispense with our costly House and Senate and simply treat the Business Roundtable and the Conference Board as our two federal legislative chambers. And the same is true at the state level: Citizens United v. Federal Election Commission also invalidates most current state restrictions on corporate spending to advance or defeat particular candidates. It will trigger a torrent of ugly litigation until those state restrictions give way.

Many of us once deplored Bush v. Gore as giving effective judicial sanction to a Republican coup d’etat; however, Citizens United is not merely court-sanctioned, but court-engineered, amounting to a judicial coup d’etat executed in behalf of the already-ascendant money power in our society. Noting that this ruling will likely benefit Republicans much more than Democrats is really beside the point; the point—the well-sharpened and deadly point—is that Citizens United will vastly strengthen the hand of the predatory class to call the tune for politicians across the political spectrum. Much more illuminating than the lead coverage in Friday’s New York Times was the sidebar by David Kirkpatrick: “Lobbies’ New Power: Cross Us, And Our Cash Will Bury You.”

Justice John Paul Stevens’ dissent (joined by Justices Breyer, Ginsburg, and Sotomayor) was both pungent and melancholy: an elegy, really, for the old idea that money and the manipulation it buys are strongly antithetical to a healthy democratic public life. Particularly offensive in the majority’s ruling, written by Justice Kennedy, were the repeated references to congressional restrictions on corporate behavior vis-à-vis elections, as representing unconscionable and unconstitutional “censorship”—the majority clearly believing that private corporate money has an unrestricted First Amendment right not merely to speak but to shout down anyone who dares to challenge its primacy. Although corporations resemble the golem much more than they do living, breathing human beings, this court just invited the golem to take over democracy’s temple and to dance the night away at the public’s expense.

In mainstream media reporting, three alleged silver linings kept popping up: (1) the Court left in place restrictions on direct corporate contributions to candidates—i.e., they can only fund “independent” campaigning in behalf of particular candidates; (2) unions will likewise get to do direct campaigning without limits; and (3) corporations might hesitate to buy elections outright for fear of alienating shareholders. I say that the proper names for these so-called bright sides are rot, piffle, and balderdash: the “independence” of so-called independent campaign expenditures is known to be a complete fiction; American unions, battered down by a 40-year campaign to destroy their influence, have just a fraction of the money and juice that corporations enjoy; and please try to convince me that a company like Exxon-Mobil is going to worry a lot about alienating shareholders whose holdings stand to benefit handsomely from the work of a key Senatorial friend over here, or a compliant governor over there.

Remembering Babylon: That Gilded Age and This One

We should mark 1886 for its singular gift to the robber barons. This was the year in which the Supreme Court declared, in Santa Clara County, that corporations are persons under the meaning of the 14th Amendment. As David Korten writes of this very peculiar decision:

In the case of Santa Clara County v. Southern Pacific Railroad Company, the US Supreme Court decided that a private corporation is a person and entitled to the legal rights and protections the Constitutions affords to any person. Because the Constitution makes no mention of corporations, it is a fairly clear case of the Court’s taking it upon itself to rewrite the Constitution. Far more remarkable, however, is that the doctrine of corporate personhood, which subsequently became a cornerstone of corporate law, was introduced into this 1886 decision without argument. According to the official case record, Supreme Court Justice Morrison Waite simply pronounced at the outset that “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.”

The irony of the Court’s fully enfranchising private corporations at the very same time that it was systematically disenfranchising the actual persons the 14th Amendment was designed to help—African Americans—has not been lost on historians. Three years earlier, in 1883, the Court had invalidated the Civil Rights Act of 1875; ten years later in Plessy v. Ferguson, it would formally validate the infamous “separate but equal” doctrine.

What makes that Gilded Age dramatically different from our own, however, is that in 1886 there were powerful social movements pushing back against the plutocrats. The American Federation of Labor was founded in 1886, joining the Industrial Workers of the World (IWW), the Knights of Labor, the Socialist Labor Party and an array of other worker-based movements demanding industrial and political democracy. The brutal police massacre that took place in Chicago’s Haymarket Square that same year merely galvanized the nascent labor movement even more. Democrat Grover Cleveland had defeated Republican James G. Blaine for the White House two years earlier, in part because of Blaine’s well-documented fealty to corporate interests while serving as Speaker of the House. It didn’t help Blaine’s cause when one of his supporters, a New York clergyman, declared that the Republican Party represented the country’s last defense against “rum, Romanism, and rebellion.”

Both prairie populism and urban populism surged on into the 1890s, although the two never managed to combine effectively and both were marred and hobbled by the deep-seated racism of white populists. Significantly, it was South Carolina populist senator Ben “Pitchfork” Tillman who authored the law that was invalidated last week by the Roberts Court: the 1907 Tillman Act. During the 20th century’s first years, Democrat Tillman and Republican Theodore Roosevelt engaged in a kind of contest to see who could stick it to the railroads most effectively. Inheriting the presidency from Mark Hanna’s sock puppet (William McKinley) following the sock puppet’s assassination in 1901, Roosevelt was desperately trying to steer his party in a progressive direction. He sensed an urgent need to ride a rising anti-corporate tide, promising working people what he called a “Square Deal” against the power of the predatory class. Whether Roosevelt, like his cousin Franklin in a subsequent era, was totally sincere in battling the capitalists is beside the point: both of the aristocratic Roosevelts were driven to take anti-corporate positions under the influence of powerful grassroots social movements.

And we should not forget the role religion played in legitimating anti-corporate sentiment. For every preacher castigating “rum, Romanism, and rebellion” there were many more who stood with the working poor against the gross exploitation symbolized by child labor, 12-hour working days, unscrupulous tenant farming practices, and open bribery and corruption in politics. It was during this same era (from 1880 to 1910) that the Social Gospel took root under the leadership of figures like Gladden and Rauschenbusch. More influential by far than these Protestant prophets, however, was the doctrinal and practical support given to workers and worker movements by Roman Catholic prelates and priests in the major urban centers.

Do we have anything like a solidly-rooted and theologically-sanctioned movement that is prepared to do battle with today’s equivalent of the railroad barons? If you can’t answer the question in less than two seconds you already have your answer. Yes, we have noble community-labor-religion coalitions scattered across the country that are winning mostly limited victories over abusive employers. And at the national level we have some feisty networks like Interfaith Worker Justice, PICO, and the Center for Community Change attempting to mobilize people from below to resist unjust power. But these movements remain hugely under-resourced and—most critically—they are cut off from the heart of Democratic Party politics, which is today a cold and thoroughly corporatized heart.

At least once a week, it seems, New York Times op-ed columnist Bob Herbert is asking, as he did this past Saturday, “whether there is anything that will wake [Democrats] up to their obligation to extend a powerful hand to ordinary Americans and help them take the government, including the Supreme Court, back from the big banks, the giant corporations, and the myriad other predatory interests that put the value of a dollar high above the value of human beings.”

Herbert must know that there is very little that will wake them up—except perhaps a few more bad bruisings at the hands of the right-wing Tea Party populists now being organized and trained by Dick Armey’s FreedomWorks. Obama himself may have to show Geithner and Summers and even Ben Bernanke the door in order to stake any claim to having actual populist credentials.

But even if the president and his party could manage to mouth the words and manipulate the symbols, they will remain all too conscious of the fact that top-down populism isn’t really populism at all. For the Democrats to function as the people’s party, the people themselves need to be educated, inspired, encouraged, and mobilized to exercise popular sovereignty in a progressive direction. And in a fragmented, atomized culture, what are the odds that anyone is going to take on this gargantuan and complex mission? The dirty little secret of progressive elites is that they don’t even want this kind of popular mobilization: they’re still afraid of the Great Unwashed. That leaves the field to the proto-fascists. Let’s see how they run, shall we?

peterlaarman@gmail.com'

Peter Laarman is a United Church of Christ minister and activist who recently retired as executive director of Progressive Christians Uniting in Los Angeles. He remains involved in numerous justice struggles, in particular a campaign known as Justice Not Jails that calls upon faith communities to critique and combat the system of racialized mass incarceration often referred to as The New Jim Crow.