'Poll Shows Americans Favor an Overhaul of Campaign Financing
By NICHOLAS CONFESSORE and MEGAN THEE-BRENANJUNE 2, 2015'
Below is an article written in 2012 ----that was when CLINTON/OBAMA and their organizations started this battle cry for US Constitutional Amendment for what could easily be handled by law. It is far harder to get a US Constitutional Amendment than just using CONGRESSIONAL CHECKS AND BALANCES----which is their duty -----to stop an illegal Supreme Court ruling like CORPORATIONS ARE PEOPLE. 1% Wall Street Clinton/Obama neo-liberals always baiting the Democratic base to push bad policy.
'Here is the provision the founding fathers included:
The Supreme Court shall have appellate Jurisdiction, both as to Law and Fact with such Exceptions and under such Regulations as the Congress shall make (US Constitution, Article III, Section 2).
Hence, under the Constitution, Congress has the power to remove Court jurisdiction over financing election campaigns'.
So, first Congress could have reprimanded Chief Justice Roberts for ignoring over a century of court precedent in ruling curbing corporate person hood.
The last Supreme Court mention of corporate person hood was late 1800s----when the Robber Baron Presidents AS TODAY brought forward that issue. It did not last.
If Roberts did not reverse that ruling Congress such have moved for impeachment. In 2012 Democrats had strong control of Congress----it was 2014 they lost control BECAUSE they did not do their jobs for WE THE PEOPLE.
I thank James Leas for being a very few legal professionals to write the truth----he is National Lawyers Guild
Constitutional Amendment Not Needed: Congress Already Has a Remedy
Tuesday, 17 January 2012 08:07 By James Marc Leas, Truthout | News Analysis
Although the Constitution already includes a remedy, certain elected officials and public interest organizations are advocating for a constitutional amendment to overturn recent Supreme Court decisions that have corrupted elections, public officials and government. They are using Vermont town meetings as a springboard for the campaign. Critics of the constitutional amendment approach point out that an amendment would not solve the problem, legitimizes the Supreme Court seizure of power over elections, would keep the Supreme Court in charge and diverts from a solution already in the Constitution that more effectively solves the problem with far less effort. The simpler alternative that is already available in the Constitution deserves attention.
Supreme Court decisions legalizing private interest financing of election campaigns have enabled a vast increase in private interest control over our federal government. The 1 percent contribute hundreds of millions of dollars in election campaigns to empower themselves and disempower the 99 percent. To keep that money flowing to themselves, elected officials waste enormous sums of taxpayer's money on government contracts, subsidies, bailouts, wars and tax cuts for the rich. The 1 percent thus receive enormous returns on their political investments. By contrast, the government uses the resulting deficits to justify cuts in needed spending on education, health care, environment, safety and infrastructure that would benefit the 99 percent who do not buy elections and influence.
Here is why a constitutional amendment is not needed to end this disenfranchisement of the 99 percent. The revolutionary leaders who wrote the Constitution, fresh from overthrowing the tyranny of King George, included sufficient checks and balances on all three branches of government - including the courts - to prevent the kind of tyranny we now suffer.
Under our existing Constitution, Congress already has the power to stop the court from making any more of the decisions that have allowed the 1 percent to buy elections. Then Congress can pass legislation reversing the unconstitutional decisions the court has made to corrupt elections.
Here is the provision the founding fathers included:
The Supreme Court shall have appellate Jurisdiction, both as to Law and Fact with such Exceptions and under such Regulations as the Congress shall make (US Constitution, Article III, Section 2).
Hence, under the Constitution, Congress has the power to remove Court jurisdiction over financing election campaigns. Removing Court jurisdiction means that the court would not even be able to take up cases involving financing of elections. Congress and state legislatures will then be free to pass laws removing private money from election campaigns. Thus, Congress already has power to curtail the court and the tyranny of private money in elections facilitated by the 5-4 majority of Supreme Court judges whose goal is to empower the 1 percent at the expense of the rest of us.
Separately, Congress also establishes and controls all "inferior courts" (Article III, Section 1).
It is not just the Constitution. As early as 1803, in a case called Marbury v. Madison, the case in which the Supreme Court established judicial review, the court also recognized that it must not decide questions that are "in their nature political." Regulating elections and their funding to prevent corruption is a quintessential political question. For 173 years, the courts followed this mandate and declined jurisdiction over such political questions.
Under Article I of the Constitution, it is Congress - not the court - that has the exclusive power to make or alter regulations regarding the "Manner" of holding elections. Under this Article I power, "in 1907 Congress passed the Tillman Act, prohibiting national banks and corporations from making contributions in federal elections. The Corrupt Practices Act, first enacted in 1910 and replaced by another law in 1925, extended federal regulation of campaign contributions and expenditures in federal elections and other acts have similarly provided other regulations." (Congressional Research Service Annotated Constitution.)
Under Article I, Congress also has the exclusive power to judge the elections of its members.
All this changed in 1976 when the court injected itself into election financing and overturned long-established law, deciding that corrupting money in politics is constitutionally protected speech. The court, not Congress, established as law that putting money in the pocket of a politician has the same protected status as speech by a citizen. Thus, the court allowed the 1 percent with money to drown out the speech of ordinary voters. In that decision and in 5-4 decisions since then, the Supreme Court also violated its own long-established precedent of keeping out of political questions so it could unleash special interest money in politics. By doing so, the court overstepped its judicial powers and intruded on Congress' legislative powers to regulate and judge elections. the court thus violated the separation of powers which is the most fundamental bulwark the Constitution provides raised against tyranny. The disenfranchisement of the 99 percent and auction of public policy to the 1 percent is the consequence of Congress' failure to maintain the separation of powers with respect to election integrity.
The decisions since 1976, including the 2010 Citizens United decision, addressed an increasing problem for the 1 percent. Faced with an aroused public, Congress had earlier passed vast amounts of progressive legislation, including the Clean Air Act, product safety and food safety laws, the EPA, the Clean Water act, the Occupational Safety and Health Act, consumer protection laws and laws regulating campaign contributions and spending. One of the ways the 1 percent fought back to empower themselves and disempower the 99 percent was for pro-corporate presidents to nominate pro-corporate justices, who would make elections a commodity that corporations and wealthy individuals could finance and control.
By enabling the upper 1 percent to buy elections, the court put an end to rule of, by and for the people at the federal level and within most states. The court not only put a stop to progressive legislation, but they turned the government into an instrument to increase the wealth and power of the 1 percent. To its credit, Vermont has successfully resisted the power of money in several recent elections. But recent Supreme Court decisions allow an overwhelming flood of private interest money, even putting democracy in Vermont at risk.
Now is the time for we, the people; our towns; and our states to demand that Congress use its existing power to re-establish the bar on court jurisdiction over financing election campaigns, establishing public funding and removing private interest money from elections.
Tragically, the recently initiated drive for a constitutional amendment dangerously leads the public away from demanding that Congress act now using its existing power. It implements delay. It substitutes an incredibly difficult approach. It legitimizes the court's illegitimate seizure of jurisdiction over a fundamental political question. It also demeans the American revolutionaries, who purposely and intentionally wrote this important check and balance into our Constitution for just such a circumstance as the one we face now. And asserting that the only solution is a constitutional amendment diverts, weakens, confuses and demobilizes people.
Even if a heroic public managed to mobilize in great enough numbers to force passage of a constitutional amendment, the amendment would not actually solve the problem if jurisdiction over election financing is left in the hands of this court. The majority on the Supreme Court, having already violated their constitutional mandate, would find other ways to use that continuing jurisdiction to make bogus decisions that maintain and expand the power of the 1 percent.
What is needed is for Congress to remove jurisdiction over financing election campaigns from the jurisdiction of the court. So the court is entirely out of the picture on this subject as the Constitution and Supreme Court precedent required. The revolutionaries who wrote the Constitution provided Congress with the constitutional power to do just that. Misleading the public away from that heritage and that power will only legitimize and entrench the status quo.
If the text of the Constitution, as written by the revolutionary leaders and the position of the court for 173 years regarding political questions, as well as the specific Article I powers assigned exclusively to Congress, are insufficient to persuade the reader of this article, consider the practicalities:
- A constitutional amendment requires a two-thirds vote in each House plus ratification by three-quarters of the states within seven years, an incredibly high bar.
- A law requires only an ordinary majority in each House to deny court jurisdiction over funding elections and to pass legislation removing private interest money from election campaigns.
The possibility of building the required movement is enhanced if the public understands that Congress already has the power to accomplish the goal with an ordinary majority vote. And that no almost insurmountable hurdle, like two-thirds of each House and three-quarters of the states within seven years, blocks the way.
Occupy Wall Street initiated the necessary mass campaign and it can continue to press for immediate action to overturn the gross inequality in political and economic power. By continuing to use the right to assemble, speak, petition and occupy, introduce resolutions at town meetings and unions, picket, march, rally, strike, sit-in and hold elected officials accountable handed down by our revolutionary forebears who inspired the Constitution, they can continue to build that mass campaign to force Congress to take action now. They can demand that Congress use the brilliant check and balance on court jurisdiction those revolutionaries included in Article III Section 2 of the Constitution. Occupy Wall Street need not be diverted, nor its goal delayed, with a useless quest for a constitutional amendment.
Here we see that argument of lack of precedent in ruling CORPORATIONS ARE PEOPLE. This article points to that early period-----around the beginning of 20th century where this stance was held----again Robber Baron Presidents bringing on the economic crash that brought the Great Depression.
Ginsburg rightly makes that evident in her dissent---this would have alerted all Congressional pols that CORPORATIONS ARE PEOPLE was a bad ruling.
'During this era, the Supreme Court repeatedly expanded the constitutional rights of corporations and other businesses while dismissively treating the government’s interest in economic regulation'
'As Justice Ruth Bader Ginsburg detailed in a powerful dissenting opinion, the majority abandoned constitutional principles and precedent '
If we did not have a Congress full of CLINTON/OBAMA WALL STREET GLOBAL CORPORATE NEO-LIBERALS THIS RULING WOULD NOT HAVE STOOD.
The Roberts Court Thinks Corporations Have More Rights Than You
DoThe chief justice continues his First Amendment revolution
By David H. Gans
June 30, 2014
The Supreme Court of the mid-twentieth century led a First Amendment revolution, turning a rarely enforced constitutional provision into the crown jewel of our Bill of Rights. While these rulings protected the speech of all Americans, they most frequently came in cases involving disfavored or even despised litigants, from Jehovah’s Witnesses to Nazi sympathizers. The Roberts Court is leading a free speech revolution of its own, but this time for the benefit of corporations and the wealthy.
This revolution is unfolding across a wide range of First Amendment provisions and doctrines, from Citizens United v. FEC, which protects political speech by corporations to Sorrell v. IMS, which makes it easier for corporations to challenge laws that regulate commercial speech. Today’s bitterly divided rulings in Burwell v. Hobby Lobby and Harris v. Quinn continue this trend by turning the First Amendment’s protection for the free exercise of religion and freedom of association into a sword to free corporations and other powerful interests from government regulation. More than the Court’s earlier First Amendment revolution, this series of deeply divided rulings resembles the aggressive, divisive, and now overturned rulings of the Lochner era, named after the infamous 1905 case Lochner v. New York, one of a number of cases in which the Supreme Court of the early twentieth century that struck down laws designed to prevent the exploitation of workers. During this era, the Supreme Court repeatedly expanded the constitutional rights of corporations and other businesses while dismissively treating the government’s interest in economic regulation. Today, we are seeing a revival of Lochner in the name of protecting free speech and free exercise of religion.
This story, of course, begins in earnest with the 2010 ruling in Citizens United v. FEC, the case that, perhaps more than any other, defines the Roberts Court. There the Court’s five conservatives united to hold that the Constitution gives corporations the right to spend unlimited sums of money on elections. Corporations cannot vote in elections, run for office, or serve as elected officials, but the Court nevertheless ruled that they can overwhelm the political process by using money generated by special privileges that corporations alone possess. In 2011, the Court continued this corporate-friendly trend in Sorrell v. IMS, holding that forms of market research, such as data mining, are “speech” protected by the First Amendment.
This term, Chief Justice Roberts has opened new fronts in his First Amendment revolution. Prior to 2014, the Supreme Court had never held that a secular, for-profit corporation is entitled to protections for the free exercise of religion and had never struck down a federal law limiting campaign contributions. This year, the conservative Justices did both. In both cases, the Court’s conservative majority built off of Citizens United. In Hobby Lobby, in an opinion written by Justice Samuel Alito, the Court held that closely-held, secular, for-profit corporations were entitled to the guarantee of the free exercise of religion, treating corporations simply as the artificial embodiment of its owner or shareholders. Dismissing the fact that corporations cannot pray and have never, in more than two centuries, been conferred with rights of conscience and human dignity, the Court’s conservative bloc concluded that secular for-profit corporations are entitled to a religious exemption from the Affordable Care Act’s requirement that employer-sponsored health insurance plans cover the full range of FDA-approved contraceptives. The Court’s opinion—the first in history to require a religious exemption from generally-applicable regulation be given to a commercial enterprise--exalts the rights of corporations over those of individuals, giving corporations the right to impose their owners’ religious beliefs and extinguish the rights of their employees.
As Justice Ruth Bader Ginsburg detailed in a powerful dissenting opinion, the majority abandoned constitutional principles and precedent and empowered commercial enterprises to “deny legions of women who do not hold their employees’ beliefs access to contraceptive coverage.”
In most descriptions of stare decisis the long history of what creates stability in Rule of Law has been found held to firmly over centuries.
'The doctrine operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent. A court engages in vertical stare decisis when it applies precedent from a higher court. Consequently, stare decisis discourages litigating established precedents, and thus, reduces spending'.
From Wikipedia, the free encyclopedia
Not to be confused with Precedence.
In common law legal systems, a precedent, or authority, is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common law legal systems place great value on deciding cases according to consistent principled rules so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained. The principle by which judges are bound to precedents is known as stare decisis. Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases." Common law precedent is a third kind of law, on equal footing with statutory law (statutes and codes enacted by legislative bodies), and Delegated legislation (in U.K. parlance) or regulatory law (in U.S. parlance) (regulations promulgated by executive branch agencies).
No doubt our Supreme Court Chief Justice Roberts would say CORPORATIONS ARE PEOPLE is a legal ruling because without it SIGNIFICANT SOCIETAL CHANGES cannot occur. Know what? Almost no one in the US want those societal structures of ONE WORLD GLOBAL CORPORATE TRIBUNAL RULE----so that argument would be specious.
A 5% to the 1% DOES NOT decide our SIGNIFICANT SOCIETAL CHANGES.
'In addition, significant societal changes may also prompt the Court to overrule precedent'
Stare decisis is the doctrine of precedent. Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. Generally, courts will adhere to the previous ruling, though this is not universally true. See, e.g. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833. Stare decisis is Latin for “to stand by things decided.” The doctrine operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent. A court engages in vertical stare decisis when it applies precedent from a higher court. Consequently, stare decisis discourages litigating established precedents, and thus, reduces spending.
According to the Supreme Court, stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”
In practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt. A benefit of this rigidity is that a court need not continuously reevaluate the legal underpinnings of past decisions and accepted doctrines. Moreover, proponents argue that the predictability afforded by the doctrine helps clarify constitutional rights for the public. Other commentators point out that courts and society only realize these benefits when decisions are published and made available. Thus, some scholars assert that stare decisis is harder to justify in cases involving secret opinions.
Despite the legal stability afforded by stare decisis, it is not without negative externalities. Critics argue that the doctrine occasionally permits erroneous decisions to continue influencing the law and encumbers the legal system’s ability to quickly adapt to change.
Although courts seldom overrule precedent, Justice Rehnquist explained that stare decisis is not an “inexorable command.” On occasion, the Court will decide not to apply the doctrine if a prior decision is deemed unworkable. In addition, significant societal changes may also prompt the Court to overrule precedent; however, any decision to overrule precedent is exercised cautiously.
THIS IS WHY WE WANT TO BE VERY CAREFUL ABOUT JOINING NATIONAL GROUPS THAT OFTEN HAVE OTHER GOALS. THE GRASSROOTS CITIZENS REALLY WANT CAMPAIGN REFORM----BUT THE GOALS OF THE NATIONAL LEADERS ARE TO AMEND THE CONSTITUTION INSTALLING TPP AND ONE WORLD STRUCTURES.
Below we see 3 quotes from this MOVE TO AMEND.ORG. It makes some of the good issues over Trans Pacific Trade Pact---but not any that I make every day. The first statement seeks to make the Supreme Court ruling a simple expansion of earlier rulings. Never mentions the centuries of precedence against corporate personhood or common law. This seems to say----they did it so move forward.
'They weren’t aware that the U.S. Supremes simply expanded upon earlier rulings equating corporate entities with legal “personhood” and money with “free speech.”'
Next we see something most anti-TPP activism will not say-----they are saying TPP is very much like NAFTA and other trade agreements WHEN EVERYONE ELSE is shouting NO---it has little actual trade policy in it. It is all about changing governance and societal structures around ONE WORLD ONE GOVERNANCE.
'The TPP is very like previous so-called “trade” agreements between the U.S. and one or more nations, the difference being chiefly of scale'.
Finally we see them telling us TPP is like our US Constitution----its like a child to our own Constitution. Now, it is indeed replacing our US Constitution----we would call that patricide---killing the parent. The 1% and their 2% did indeed sell Obama's campaign----as a CONSTITUTIONAL SCHOLAR----but our HARVARD, UNIVERSITY OF CHICAGO, IVY LEAGUE UNIVERSITIES have these few decades declared American politics dead-----replacing our national political structures with global ones and Obama's expertise as Constitutional scholar was in breaking down our US Constitution and installing the ONE WORLD Constitution and indeed Trans Pacific Trade Pact and Foreign Economic Zone policies are that BACKBONE.
'Similar to the U.S. Constitution and Supreme Court
It’s not only whether the TPP is akin to NAFTA and previous corporate governance agreements but also how much it can be likened to a “child,” even a “great, great grandchild” of our own U.S. Constitution'.
The Trans-Pacific Partnership (TPP) is a Brand New, Same Old Story
January 16, 2016
Program On Corporations, Law, and Democracy (POCLAD)
Many citizens were stunned and outraged when the U.S. Supreme Court ruled in the now infamous 2010 Citizens United v Federal Communication(FEC) case that corporate entities could donate (more like invest) unlimited sums of cash to electoral causes. This was based on corporate entities possessing First Amendment free speech “rights” combined with money spent in elections being constitutionally protected “free speech.”
Many people learning of Citizens United assumed the five-member Court majority supporting the decision had engaged in never-before judicial activism with a “shock and awe” invasion of constitutional rights previously held exclusively by natural persons. They weren’t aware that the U.S. Supremes simply expanded upon earlier rulings equating corporate entities with legal “personhood” and money with “free speech.” Citizens United was simply the latest and most visible in a long series of egregious Court cases that carved up the Bill of Rights and other Amendments to the liking of plutocrats and corporate agents.
Citizens United was just a brand new, same old story.
There’s a similar tale in the 6000-page Trans-Pacific Partnership (TPP), to be signed by President Obama in February and then presented to Congress for ratification:
- The TPP is very like previous so-called “trade” agreements between the U.S. and one or more nations, the difference being chiefly of scale.
- The second way the TPP is more old than new is its anti-democratic similarity to our Constitution and Supreme Court – the wording of the former and many decisions of the latter that have squelched self-governance all along the way.
1. Similar to previous trade agreements — with a few exceptions
The U.S. is party to more than a dozen Free Trade Agreements and is in various stages of negotiation on nearly 20 others, mostly bilateral. The most (in)famous is the North American Free Trade Agreement (NAFTA) between the U.S., Canada and Mexico, in effect since 1994.
The other relatively well-known “trade” entity is the World Trade Organization (WTO) composed of 100 member nations including the U.S. Remember the 1999 “Battle in Seattle” that disrupted the “Millennium Round” of WTO negotiations?
We’ve heard all the pro TPP arguments before. It will reduce cumbersome barriers, set common standards for selling American goods and services abroad, grow the economy, provide middle class jobs, reduce the nation’s trade deficit, and strengthen economic interdependence between the U.S. and other member nations, 11 Pacific Rim countries, comprising 40% of the global economy.
President Obama said the agreement “reflects American values,” and “levels the playing field for American workers and businesses.” He further asserted, “We can’t let countries like China write the rules of the global economy. We should write those rules, opening new markets to American products while setting high standards for protecting workers and preserving our environment.”
Who in their right mind could oppose this? But with such compelling content, why were negotiations kept secret from our public officials for nearly four years while more than 600 transnational corporate advisors occupied all the seats at the table?
The regurgitated TPP rhetoric and promises begin with the framing of the agreement as predominately involving “trade.” As with NAFTA and other previous agreements, this is deceiving.
Of the 30 sections or “Chapters” of the proposed deal, only six address traditional trade issues – the buying and selling of stuff. The remaining 24 address such issues as market access, investment, telecommunications, intellectual property, competitiveness and business facilitation, state-owned enterprises, labor, the environment, and dispute settlement.NAFTA and other international agreements also determine much more than “trade.”
A fundamental goal of the TPP is to remove “trade barriers” to the free flow of goods and services among participant nations. These “barriers” involve other than mere tariffs, quotas and onerous custom procedures. We’re talking about laws and regulations passed by national and sub-national governments (states in the U.S.) that protect workers, consumers, communities and the environment. But “impediments” to multinational corporations entering foreign markets are “protections” to local people, enabling their quality of life and right to self-determination.
A few of the proposals contained in the TPP would:
- delay the introduction of low-cost generic medicines, imposing higher costs to people in all 12 nations;
- add to climate change by expanding trade in dirty energy products such as tar sands oil, fracked natural gas, and coal – justified as in the public interest;
- weaken existing food safety standards, food inspections and protections for small farms;
- force Internet Service Providers to be “copyright cops” by taking down websites in response to mere claims from corporations or governments that posted material is copyrighted;
- prohibit financial capital controls (which led to the 2008 financial implosion) and limits on bank size, prohibit “firewalls” between investment and consumer banks and national efforts to control or reject bizarre financial products like derivatives;
- deny protections from labor abuse, such as poverty wages and poor working conditions, facilitating a further “race to the bottom.”
The many specific problems of the TPP are connected by another fundamental assault against people’s sovereignty — the Investor State Dispute Settlement (ISDS) provision in Chapter 28. The TPP establishes three-person “Panels” to rule on “investor-state” suits against governments on any of the above issues.
While ISDSs exist in other trade deals, the TPP is unique in allowing challenges to be brought against a nation directly by one or more corporations. Multinationals no longer have to rely on surrogate governments to do their bidding.
The TPP ISDS Panels can meet in secret. Their decisions are final. There are no appeals. Panel members are unelected and unaccountable trade attorneys, most having relationships with major corporations. They may act as prosecutors or defenders for governments or corporations on different issues at different times. Of course, we are to assume this raises no conflicts of interest!
Panels have a sole responsibility: decide if an existing national law or regulation, even when enacted democratically, threatens expected future corporate profits. If so, the nation must rescind or change that legislation to comply with the TPP or provide taxpayer compensation for lost future profits.
This isn’t simply theory, it’s real. The WTO ruled in December against the United States’ wanting to know the source of meats in the butcher case. This “country of origin” labeling law put Canadian and Mexican meat producers at a disadvantage. The WTO dispute resolution panel ruled that $1 billion in fines from U.S. taxpayers would be levied unless the law was revoked, which Congress dutifully did as a rider to the year-end spending bill. Never mind that consumers overwhelmingly support wanting to know where their food comes from.
The mere threat of suits under TPP, if ratified, will deter legislators from enacting laws that don’t jibe with this pro-corporate agreement. So much for national sovereignty! So much for believing it will make any real difference who is elected to office. So much for organizing pro-worker, consumer or environmental citizen initiatives that might threaten expected corporate profits. The public interest will be subordinated to the corporate-serving TPP manifesto.
Elected officials will be reduced to deciding the date of the annual fruit festival, whether to change the official state bird and other trivial matters. The important issues will find federal and state officials deciding whether existing laws must be gutted to avoid millions or billions in compensatory payments to corporations.
The TPP is not about “trade,” be it free or fair. It’s about corporate governance – increasing the power and authority of corporations of all types, sizes and national-origins to override the laws, regulations and court rulings of nation states.
2. Similar to the U.S. Constitution and Supreme Court
It’s not only whether the TPP is akin to NAFTA and previous corporate governance agreements but also how much it can be likened to a “child,” even a “great, great grandchild” of our own U.S. Constitution. This may rub people the wrong way, believing as many do that the Constitution is a most democratic document.
While there are elements of the Constitution worth keeping, it has disturbingly similar anti-democratic features as the TPP that favor giant business interests and serve those of extreme wealth and privilege.
Here are a few examples:
- Like the TPP, those who attended the Constitutional Convention in 1787 did so under the major premise of liberalizing “trade” and commerce. The Constitution’s Framers had come together to amend the Articles of Confederation, the nation’s original founding document, which had rejected free trade by allowing states to ban imports and exports as they saw fit. This was unacceptable to the rising merchant class. The goal of the Convention was to create a more efficient and powerful central government that would call all the shots on matters of commerce. The new Constitution would declare it so.
- The Constitutional Convention’s attendees met in secret, not unlike the authors of the TPP. Its Secretary, James Madison, made none of the proceedings public after the convention.
- Delegates to the Convention were elite men of property – northern merchants and southern planters. Workers, women, people of color, and men without property had no seat at the table.
- The proposed Constitution was a property-rights document granting powers to those who owned property, slaves included. Those assembled in Philadelphia added a Bill of Rights similar to that in many state constitutions because several state legislatures refused to ratify the federal Constitution without it. The Bill of Rights served the same purpose as a “side agreement” today. It ensured passage of the Constitution just as tagalong labor and environmental provisions assist the passage of “trade” treaties.
- The power to regulate commerce and trade was shifted from the states under the Articles of Confederation to the federal government. Article 1, Section 8 of the Constitution was called the Commerce Clause: “The Congress shall have power…to regulate Commerce with foreign Nations…and among the several States, and with the Indian Tribes.” The Commerce Clause has been the Supreme Court’s anti-democratic weapon of choice to strike down hundreds of local and state laws protecting people, communities and the environment on grounds that they interfere with interstate commerce.
- Article III of the Constitution established a Supreme Court, members of which are nominated by a President and confirmed by the Senate. There are no term or age limits, unlike other nations. Impeachment is a virtual impossibility. They serve with little accountability or responsibility to anyone or anything else.The High Court is the final arbiter of what is deemed “constitutional” among federal and state laws. Its powers are vast and were greatly strengthened by Supreme Court decisions. A prime example is Marbury v. Madison (1806), establishing the doctrine of Judicial Review. This gave the Supremes even more power to overturn federal, state and local laws, regulations and lower court decisions.Legal historian Lawrence Friedman said, “The [U.S. Supreme] Court, in short, guaranteed to business that there was and would be a giant free trade area within this country. It made the country safe for big business.”
- Like the TPP’s ISDS Panels, Supreme Court decisions can’t be appealed. Supreme Court decisions can be overturned via Constitutional Amendment but the process is far more difficult in the U.S. than in other nations. Supreme Court decisions defending slavery and political disenfranchisement of women were upended by passage of Constitutional Amendments requiring the organization of mass social movements.
Two-track strategy required
“Commerce defies every wind, overrides every tempest, invades every zone.”
– Quote chiseled into granite above a US Department of Commerce building entrance, Washington, DC
A free trade zone is a forced trade zone – against the will of a people or a government. There is no room for democracy. This is an economic invasion with implications for self-governance. The invasion is both foreign and domestic. The invaders are corporations and oligarchs using “trade” deals like the TPP when they invade abroad and provisions of the U.S. Constitution and Supreme Court rulings when they invade on the home front.
Because these two tracks are connected, our democratic strategy must be two-fold:
- Defeating the TPP through education, advocacy and organizing in all conventional and creative forms. It means engaging our friends and family in face to face conversation, using mainstream, independent and social media. It means advocating for the defeat of this trade deal when it comes to a vote in Congress later this year.
- Addressing the impediments to real democracy in our Constitution. Just as reversing Citizens United in itself will not abolish corporate “personhood” or money equated with free speech, stopping the TPP in itself cannot ensure self-governance. The Constitutional roadblocks must be removed – those that have allowed a propertied elite and the corporation to assert illegitimate authority over the democratic rights of the majority.In some respects, this is the more difficult assignment. The Constitution has been covered in a blanket of reverence and the myth of a democratic republic that offers freedom and justice for all. We have failed to examine our Constitution objectively, unemotionally and in comparison with the models of other nations.
This is our collective challenge. If we fail to meet it we’ll continue to face brand new, same old stories.