Sunday, September 16, 2012
Voter Suppression, as American as Apple Pie – It Is Run By Plutocrats
Doesn't quite feel like Apple Pie, though. Great piece by Dr. Estades.
Voter Suppression, as American as Apple Pie - It Is Run By Plutocrats
By Jaime Estades
The Greeks of 400 B.C. viewed concentration of wealth in the hands of the few as a great threat to democracy and a problem for the polity as a whole. However, plutocrats of that time and today believe the exact opposite — that wider distribution of political power and a concern for social welfare threatens their vision of democracy.
The regulation of democracy and the deregulation of the economy have always been intrinsically controlled by the power of the economic elites. The same corporations that benefit from the Citizens United v. Federal Elections Commission, 558 U.S. 50 (2010) decision are now involved in local state voter ID legislation and efforts to effectuate large scale voter suppression. Recently, the U. S. Supreme Court has awarded an expansion of voting rights to corporations (Citizens United), while limiting the rights of people (Crawford v. Marion County, 553 U.S. 181 (2008)).
Voting And Post Reconstruction Era
Voter suppression is just as American as apple pie and baseball. The strategy to control the vote in favor of a particular class of people originated in the U.S. prior to the drafting of the Constitution. Women, blacks, poor and working whites without land or substantial assets were not allowed to vote. During the few years of Reconstruction, freed men were allowed to vote for the first time through the 14th and 15th Amendments. However, that did not last long. With support from the U.S. Supreme Court, the white backlash immediately created a new phase with the Post Reconstruction Era that introduced a more sophisticated strategy of voter suppression.
In his book, “The Strange Career of Jim Crow,” author C. Van Woodward describes how the end of the slavery system left white society without the free labor of slaves, resulting in a dramatically deteriorated southern economy. Thus, it became imperative for white oligarchs to keep economic and political control as close to the old slavery system as possible. Reconstruction had to be stopped, and black voting could not happen. As W.E.B. Dubois stated, “The slave went free; stood a brief moment in the sun; then moved back toward slavery”.
In Lawrence Goldstone’s brilliant book “Inherently Unequal” he dedicates a chapter toWilliams v Mississippi, 170 U.S. 213 (1898), where an all-white jury found Williams guilty of murder. The appeal focused on a systematic exclusion of blacks from the voting roll that was used to identify candidates for participation in grand juries. In 1890, 134 delegates attended the Mississippi State Convention, including 133 white delegates and 1 black delegate. The Convention established the legal basis for racially discriminatory literacy tests and property taxes to prevent blacks from registering to vote and voting in the state of Mississippi. As a consequence of this discriminatory practice, Williams was denied a jury of his peers.
The U.S. Supreme Court ruling in Williams established that for such a law to be Unconstitutional “it must pronounce its intention to discriminate against a class of people”. The Court implied that the discriminatory effects were non-intentional, and, therefore, the case was closed. These “non-intentional” “non-discriminatory” effects continued to prevent millions of blacks from voting in the U.S. for almost 80 years. In other words – “oops”! It was just an accident — who cares that in the year Williams was decided, in Mississippi alone almost 907,000 black residents were not eligible to go to the polls because of these laws.
Does it sound similar to the justification by today’s Republicans about the new voting laws? The excuse in 1890 mirrors the excuse of 2012, and the same class of economic elites is the beneficiary. These hypocritical assertions remind us of the old Groucho Marx line after he was caught cheating: “Are you going to believe me or your lying eyes?”
Goldstone reminds us of an extremely important fact, “when Plessy was overturned in 1954, it was on social grounds ‘separate but equal is inherently unequal’, not because of judicial error. Williams, was never overturned by the Court at all, but rather was rendered moot by the Voting Rights Act of 1965.”
Why is this scary? Next year, the Supreme Court will re-evaluate the future of Section 5 of the Voting Rights Act of 1965. If terminated, Williams may well be the precedent the Supreme Court will follow regarding state voting rights. Are we ready to jump in the time machine? The plutocrats are!
Regardless of the passage of more than 130 years since the creation of Jim Crow and three years since Citizens United era began, the situation remains the same in 2012. State voting laws are being introduced with the intent of preventing millions of people from voting. The number of citizens who can vote is not important to the plutocrats. What matters to them is who votes, and they know perfectly well whom they want to vote.
Crawford v. Marion County (Voter ID)
To make matters worse in the area of voter identification, in 2008, the U.S. Supreme Court decided in favor of the state of Indiana in Crawford v. Marion County, 553 U.S. 181 (2008). In a surprising majority opinion for the six to three decision, two years before his retirement, Justice John Paul Stevens wrote: “The burdens placed on voters are limited to a small percentage of the population, and were offset by the state’s interest in reducing fraud.” It is worth noting that lower courts and Stevens himself agreed that no history whatsoever of fraud had been identified. The Court asserted that “the threat of fraud” was sufficient to justify such law. Stevens, a liberal on the Court for decades, seemingly was too loyal to the states’ typical role of regulating voting laws and ignored the potential abuse of this decision by those seeking to limit voter participation. Still, the Crawford decision begins to sound a lot like 1890?
As expected, Justice Anthony Scalia took sides with the state law. No surprise here. However, he was even more direct, stating: “It is for state legislatures to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail, unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class.”
So far, this decision reminds us of the 1898 decision in Williams and many other decisions in which the courts have chosen to ignore the potential negative impact of voter suppression through voter poll taxes and literacy tests, even while asserting their willingness to protect in the future a class that may be disadvantaged by such law, as Scalia stated. If the voter identification laws that are currently being challenged end up in the U.S. Supreme Court, then Crawford may be difficult to overturn as a recent legal precedent.
Corporations Believe Voting Is
Too Important to Leave to Voters
Many mathematicians believe that “physics is too important to leave it to physicists.” Well, corporations believe that voting is too important to leave to voters. In the same way that former slave owners, oligarchs and white supremacists took the vote away from freed men in the 19th century, in the 21st century, corporations do the same through “The American Legislative Exchange Council” (ALEC). This group is a funded mostly by corporations. ALEC’s main goal is the deregulation of everything that moves! They would like to eliminate the word “regulation” from dictionaries, along with “environmental law”, “tort reform”, “market regulation”, “education”, “Medicaid”, “Medicare” and guess what else? Voting.
One of ALEC’s main strategies is to use state lawmakers to legislate voter identification laws that suppress the vote. The span of their efforts has influenced 33 states with voter identification proposals. ALEC’s main and only justification is to preserve the integrity of the vote by preventing voter fraud. The Brennan Center for Justice, which has done excellent work in following this type of legislation, states that: “one is more likely to be stricken by lightning than to commit voter fraud.”
Legislators who are affiliated with ALEC have introduced half of the voter identification legislation in those states, according to “News 1 Analysis”, an investigative group founded by the late Walter Cronkite. Pennsylvania and Florida provide a glimpse into the impact of the legislation. According to the Pennsylvania Civil Liberties Union, 12.8% of registered voters in that state (1,055,200 people) lack voter identification, and 12.6% of 2008 presidential election voters (757,325 people) will not be able to vote because of these restrictions. Needless to say, affected voters are disproportionately black, Latino, elderly and/or students.
Until two weeks ago, the state of Florida had effectively criminalized voter registration mobilization by threatening to bring charges against organizations that presented voter registration forms with any mistakes. This threat effectively prevented voter registration mobilizations by not-for-profit organizations, most of which lack resources to go to court to defend common mistakes that are frequently written by individuals registering to vote. This prompted the League of Women Voters of Florida to cease voter registration in the state of Florida almost a year, until an appeals court in Florida recently struck down the law. However, the damage had been done. More than year passed and hundreds of thousands of potential voters were not able to register because of the law. Also in Florida, early voting days were reduced, particularly with regards to the Sunday before Election Day, when African American churches mobilize their base to vote in “Souls to the Polls” mobilizations.
The corporate mogul and billionaire Koch brothers have invested millions of dollars in Super PACs and have also invested heavily in ALEC. Liza Graves, the Executive Director of “Media and Democracy” wrote in the “The Nation” magazine: “The Kochs have a penchant for paying their way out of serious violations and coming out ahead. Helped by Koch Industries’ lobbying efforts, one of the first measures George W. Bush signed into law as Governor of Texas was an ALEC model bill giving corporations immunity from penalties if they self-report to regulators their own violation of environmental rules. Dozens of other ALEC bills would limit environmental regulations or litigation in ways that would benefit Koch.”
Lobbying and voter suppression have always been extremely important tools, used by economic elites to regulate government. Clearly, for them, voting is too important to leave it to voters.
“Corporations Are Persons”
In the U.S., plutocrats have controlled voting since before the Constitution was created. At that time, most states excluded women, slaves and poor white men from voting. Only white men in possession of large assets, land and/or successful businesses were eligible to vote. Those who did vote were the same class of men who wrote the U.S. Constitution and controlled the U.S. Supreme Court.
In 1885, the Supreme Court decided the case of San Mateo v. Southern Pacific Railroad, 116 U.S. 138 (1885), an attempt by San Mateo County to collect taxes owed by Southern Pacific Railroad Company. The attorney for Southern Pacific, Roscoe Conkling, was a corporate lawyer and former Senator who was a member of the Joint Congressional Committee that drafted the 14th Amendment. Conkling claimed to have kept a journal during the deliberations of the Joint Congressional Committee. He claimed that the word “person” was used instead of “citizen” because the Committee members intended to eventually include corporations, rather than to freed men. While reading from what he claimed was his journal, Conkling asserted to the Court that the Committee intended to include individuals and joint stock companies. As of this date, there is no independent evidence that such a journal existed; it was never presented as evidence, and no other evidence exists that members of the drafting Committee had never expressed such intent. The case was dismissed.
In 1886, in one of the most controversial cases in Supreme Court history, the Court considered the case of Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886). The Railroad asserted that the County of Santa Clara could not require the company to pay taxes because the state wrongly assessed the value of Railroad property by accidentally adding the value of the fences on the right of way. The company had a value of $30 million and refused to pay a tax of $30,000. They argued that the County was evaluating them differently from a person under the equal protections clause of the 14th Amendment. The Court decided for the company. Importantly, this is the first case under the 14th Amendment that seems to declare that corporations have the same rights as persons.
The Court followed this ruling for decades, even though new evidence seems to show that the Court never intended to make such an assertion or ruling. However, the main point is that the concept of corporations as persons has been litigated under the 1st and 14th Amendments since the late 19th century. Since then, many cases have been brought by corporations as plaintiffs seeking remedy under the 14th Amendment, which was intended to provide equal rights to former slaves and equalize legal rights among individuals, and never intended as a legal remedy for corporations.
From the 1880s to the New Deal, the Court began re-defining the 14th Amendment, influenced not only by corporate America, but also by the new pseudo-social theories from Europe that permeated in the Supreme Court, academics and conservative circles of the time, such as Laissez-Faire and Social Darwinism. These theories are historic favorites of plutocrats in justifying the morality of an economic order of exploitation. The consumption of these concepts by the elites resulted in the demise of Reconstruction, as well as Supreme Court decisions that established the doctrine of “Separate but Equal” (Plessy v. Ferguson, 163 U.S. 537 (1896)) and anti-labor laws (Lochner v. New York, 198 U.S. 45 (1905)).
The Lochner Era
Judicial activism in favor of corporations is not a new concept. In 1895, the State of New York enacted a labor law, which prohibited bakery employees from working more than 60 hours per week or more than 10 hours per day. Corporations went nuts; they felt like an “oppressed minority” (a concept use by Roberts in Citizens United). How dare the government interfere with the American tradition of worker exploitation?
The Supreme Court decided that no reasonable grounds existed for interfering with the “right of free contract” by regulating bakery hours of labor. Therefore, the state could not regulate working hours. The Lochner case was a devastating blow to a labor movement that was beginning to make significant advances in the U.S.
In his dissent, Justice Holmes asserted, “The Constitution was not intended to embody a particular economic view and is not a document about economic philosophy.” Holmes was by no means a Socialist; however, he understood that the concept of Laissez-Faire was not in the Constitution. Neither is the concept of “corporations are persons.”
The Supreme Court of the Lochner era is still considered to be one of the most politically conservative and judicially activist in the history of the Court. This pro-corporate and deregulation phase continued well to the mid-1930s, rejecting labor and market laws efforts to help the poor and workers during the New Deal.
Citizens United and Lochner
Two years ago, the United States Supreme Court decided the case Citizens United v. Federal Election Commission, 558 U.S. 50 (2010). The Court concluded by a five-to-four vote that, in the electoral arena, corporations have the same First Amendment rights as individual citizens of the United States. In others words “corporations are people.”
Chief Justice Roberts, in his concurring opinion, went so far as to say that corporations have been treated as an “oppressed minority.” This is coming from someone who has no history of being oppressed or of being a minority. This comment does, however, give us a glimpse back to the retrograde Lochner Era.
The Court gave corporations the power and advantage over individuals to greatly influence the outcome a federal election as Lochner gave corporations the right to establish working hours. We survived Lochner, but it will take time to overcome Citizens United. Corporations now have a “bigger bullhorn” than the average citizen with regards to First Amendment rights – confirming not only that rights are not equal, but also that non-living entities have civil rights.
Conservatives like to argue that because unions are also allowed unlimited spending, theCitizens United decision was balanced. The question is, “Can unions really compete for influence against corporations?” A review of some facts on the art of persuasion can be illustrative. In 2010, in advertisements alone, General Motors spent $4.2 billion, Ford spent $3.9 billion, AT&T spent $2.5 billion, CitiGroup spent $1.5 billion (just 1.4% of their revenues), Bank of America spent $1.0 billion (1.7% of their revenues), JP Morgan spent $2.4 billion (2.3% of their revenue), and Wal-Mart spent $2.5 billion (0.5% of their revenue). One corporation can outspend all the unions in the U.S. in one election cycle, if they wish.
We should not be surprised if at some time in the future, instead of referring to the “Senator from California,” we end up calling the “Senator from Coca Cola.” The vision of a corporate lobbyist trying to persuade the Majority Leader of the Senate to support legislation that creates additional consumer safety protections is difficult to imagine.
All corporations want only one thing from government — to be left alone. Car, food and pharmaceutical manufacturers, airlines and most other companies do not want anyone to require them to spend more money to satisfy federal safety standards. Fewer regulations directly correlate to greater corporate profits. This government “hand off” approach includes the elimination of all corporate taxes. Under this scheme, humans will pay taxes, and the “new people” (corporations) will not.
Through the control of government, corporations can legislate the government out of the markets and their companies out of all regulatory policies. That is what Lochner andCitizens United were all about — deregulation.
Never Forget Montana
In a June 2012 decision, the state of Montana lost its case challenging the Citizens Uniteddecision in American Tradition Partnership, Inc. v. Bullock. The Supreme Court stated that the question in this case was whether the Citizens United decision, which established that corporate spending on elections is permitted as a matter of free speech, applied to the Montana state law. The court stated that: “There can be no serious doubt that it does.” However, we should not forget the history of Montana, which encapsulates the concept of plutocracy and the bias toward corporations by the current Supreme Court.
More than a century after Lochner, Supreme Court Justice Anthony Kennedy in hisCitizens United majority opinion asserts that no evidence exists that unlimited corporate or union contributions would have a corrupting effect on elections. The State of Montana had more than 100 years of evidence that money corrupts elections and government. Contradicting to the assertions of the Justices in Citizens United, based on historical grounds, in January 2012, Montana’s Supr
eme Court upheld a century-old law barring corporate spending in state and local elections.
Corruption in Montana had been so monumental that it was the main reason for the adoption of the 17th Amendment of the U.S. Constitution. In 1913, this Amendment changed the selection of U.S. Senators from a vote by state legislatures to popular election. The reason for this action was the inappropriate influence of Montana copper and mining company barons who had such great control of the state legislature that the federal senator was handpicked through favors and kickbacks given to state elected officials.
As in Lochner, Citizens United followed a legal jurisprudence that taints the Supreme Court history in favor of corporations. Lochner and all the cases that followed until Roosevelt threatened to increase the number of Supreme Court justices were part of legal philosophy that follows the Social Darwinism and Laissez-faire philosophies of the late 19th century, which contaminated the court.
How Justice Kennedy and the other four Justices failed to acknowledge the history of the 17th Amendment concerning the corrupting effect of money can only be understood by a “Pavlovian” reaction to deregulation in favor of corporations and/or incomplete legal and historical research. Early this year Justices Ginsburg and Breyer declared that the Montana experience makes it exceedingly difficult to assert that independent expenditures by corporations “do not give rise to corruption or the appearances of corruption.”
Unfortunately, reason escaped the five conservative Justices of the Supreme Court during the last term. Once again, they ignored history and the genesis of the 17th Amendment and voted 5-to-4 to reject the Montana Supreme Court’s decision that was based on a history that clearly shows that money corrupts.
Jaime Estades, Esq., MSW, is Founder and Chair of The Latino Leadership Institute and an Adjunct Professor at Rutgers University. He can be reached firstname.lastname@example.org.