Citizens United hinged on a Huge Error in Judgment
The problem with the Citizens United case, as I noted in my post from October last year, titled "A corrupt decision blind to corrupt access and influence" is that the most eggregious error of that decision wasn't the "corporate personhood" mistake. Corporate personhood is just a legal fiction that the courts have used to exempt companies from laws and responsibilities at State or County level. The huge error was their defenestreing of corruption/bribery laws through their failure to recognize "undue influence" and "improper access" as corruption despite 200 years of legal jurisprudence establishing these as the heart of corruption.
Independent Expenditures as Ingratiation, Access and Extortion
In that decision Kennedy had written:
"there is only scant evidence that independent expenditures even ingratiate. … Ingratiation and access, in any event, are not corruption."
But ingratiation and separate access provide opportunities for undue influence and undue influence is at the heart of Bribery definitions and corruption, and our more progressive leaders have known that since the Federalists talked of this while writing the Federalist papers. Undue influence is at the heart of the evils of plutocracy, bureaucracy, and all forms of tyranny (Locke: "Power...exercised...for private, separate advantage". Denying the potentially undue influence exerted by money expenditures and independent expenditures, simply expresses the corruption that the Supreme Court has suffered due to the undue influence of wealth and power expressed through pressure groups like Americans For Prosperity and the Federalist Societies patrons that has created such a corrupt supreme court.
Wikipedia defines it as:
"In jurisprudence, undue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person."
Undue Influence includes Extortion and Slander
Our founders understood the dangers of "Undue Influence". Robert Yates wrote in the Federalist:
Image of page 657 "The Federalist and Other Constitutional Papers by Hamilton, Jay ..., Volume 1"
Partisanship Fueled by Separate Interest
Text of 657 to beginning of 658 follows and could almost be describing our own times:
"In respect to the first it may be necessary to observe that under the colonial government there existed violent parties now known by the name of whig or tory republicans and aristocrats Those who were in the employments of government or the ins [who] were for extending the prerogative of the crown while the outs were checks to it. Many of the leaders on both sides were under strong expectations that sooner or later that branch of colonial government called the king's council would be erected into a hereditary house of lords. The ins being nearest to the disposition of the offices of honor and profit and in the way of obtaining patents for vacant lands and being from time to time joined by other crown officers and dependents who flocked to and settled in this colony since the year 1763 had the means of making use of undue influence to retain their situations which made the outs at last despair of ever having a turn unless the elections were by ballot. [punctuation added]
Source:The Federalist and Other Constitutional Papers by Hamilton, Jay ..., Volume 1 edited by Erastus Howard Scott
Revolution fought to resist Undue Influence from $ Power
Undue Influence was part of the unfair power (and wealth) distribution that was the real reason for the first revolt that created the United States. Fear of foreign undue influence was one of the reasons we formed a General Federated Republic rather than remaining separate (and warring) colonies. And undue Influence has reared it's ugly head throughout our history in our country in much the same fashion. Only instead of hereditary land-lords with power by way of land titles, we now have hereditary Corporate-barons with power by way of Corporations. And we have those barons exerting undue influence on the Supreme Court as expressed in the Citizens United Decision and the efforts of the newspeak (bizaaroland) named Tea Parties. Where we resisted the undue influence of the East India company during our 1775-1889 revolt, it's modern analogues exert flagrant influence on us now.
Resisting the East India Company
In the Federalist Papers James Winthrop "Agrippa" referenced the power of the East India company in the following passage (on page 548)
"In most countries of Europe trade has been more confined by exclusive charters Exclusive companies are in trade pretty much like an aristocracy in government and produce nearly as bad effects An instance of it we have ourselves experienced Before the Revolution we carried on no direct trade to India. In most countries of Europe trade has been more confined by exclusive charters Exclusive companies are in trade pretty much like an aristocracy in government and produce nearly as bad effects An instance of it we have ourselves experienced Before the Revolution we carried on no direct trade to India " [page 548-549]
The USA was founded on a tension between legitimate business and privateering under charters. Our own chartered privateers were labeled as pirates by the British during our revolution [I visited a museum dedicated to that "notorious Pirate John Paul Jones" during my visit to Britain two years ago]. Pirates had an imperative to share the loot with crews while privateers and chartered trade companies ran their business as absolute dictatorships solely for the benefit of the owners. Our business people learned acute lessons from being considered second class businessmen. Many of them were officially branded as smugglers or even pirates. Part of the motive of the revolution was to protect their own trade from dumping by the East India Company which enjoyed tax free status on it's tea, while our businessmen had to buy the tea with a tax stamp from Britain, from the East India company!
Agrippa continues:
"In a republick we ought to guard as much as possible against the predominance of any particular interest It is the object of government to protect them all When commerce is left to take its own course the advantage of every class will be nearly equal But when exclusive privileges are given to any class it will operate to the weakening of some other class connected with them "
The founders sought to accomplish that by dividing the government into divisions and forcing them to both work together and to have to work out competing interests. They also were thinking of Business, but as we didn't have businesses like the East India Company in our country yet, they left working out that separation of power to later generations.
Indirect Bribery and Extortion = Undue Influence
So undue influence is connected to our founding principles, and the power of direct bribery and the indirect bribery labeled as "undue influence" was identified as a major ill way back during our founding days. This illustrates all the more graphically the mendacious and perverse faux principles of the "Federalist Movement" and it's corrupt avatars on the Supreme Court.
In this stage of our history the companies are more and more resembling the East India company and less and less resembling Paul Revere's Silver company or even Robert Morris' grand pirate fleet (our first navy). When folks argue for freedom from government they are really talking either about self-government, or the switch becomes rule by greedy corporations like the East India Company. The East India company so botched it's control of Bengal and other parts of SE Asia that the British Navy, Marines and Army had to come in to rescue them. Democracy is not only about individual rights it is also about functional societies where the right people are able to get offices and power for limited times as needed, and not to make their power hereditary and oppressive. That is why these discussions were found in the writings of the Federalists, Republicans and Anti-Federalists.
Further Reading
Further reading that describes how "undue influence works" to corrupt judges like Clarence Thomas and Scalia:
- http://www.huffingtonpost.com/2010/10/20/scalia-thomas-koch-industries_n_769843.html
There are many more quotes from founders and I believe Federalist 2 that reference "undue influence" and the need to protect our politics from foreign undue influence, corporate undue influence and the influence on each other of executives, judiciary members and legislators through divided government and separation of powers. I'm sure if I look hard enough I'll see references to pastors and priests as well.
Written 3/27/2014
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