"When five conservative members of the Supreme Court handed corporations and the super-rich the right to overwhelm our elections with tsunamis of cash, they moved America further from representative government toward outright plutocracy, where political power derived from wealth is devoted to protecting wealth.
We saw it first in the mid-term elections of 2010, and we’re seeing it in spades in this year’s elections – organized money, much of it dark money, given secretly so it can’t be traced, enveloping the campaign for president, Congressional campaigns, and state legislative and judicial races. There’s never been anything like it in our history – not on this scale, and not this sinister.
BILL MOYERS: This week on Moyers & Company…
JAMIE RASKIN: One person, one vote is the principle of democracy. But we're moving into a "may the highest bidder wins" regime.
KATRINA VANDEN HEUVEL: This election could determine not only the future of the court for generations to come but the shape of our democracy."
I hope you'll take the time to read this transcript of an interview Bill Moyers conducted with "The Nation" magazine’s editor and publisher Katrina vanden Heuvel and Jamie Raskin, [o]ne of the country's leading scholars on
constitutional law. They outline more reasons that I feel it is vital not to allow Romney a chance to push the Supreme Court further to the right, affecting the nation's course for decades to come. If you'd rather watch the interview, it's available
here.
Movie today from day 2 in Mannheim, including some interior shots, and some photos taken from near the Steiner Haus. The one with people in it includes a few of Jan's Eurythmy students (and Jan in the green T shirt), eating one our delicious breakfasts provided by the admin of the SH.
BILL MOYERS:
Welcome.
When five conservative members of the Supreme Court handed
corporations and the super-rich the right to overwhelm our elections
with tsunamis of cash, they moved America further from representative
government toward outright plutocracy, where political power derived
from wealth is devoted to protecting wealth.
We saw it first in the mid-term elections of 2010, and we’re seeing
it in spades in this year’s elections – organized money, much of it dark
money, given secretly So it can’t be traced, enveloping the campaign
for president, Congressional campaigns, and state legislative and
judicial races. There’s never been anything like it in our history – not
on this scale, and not this sinister. We’ll take a look at this
radical threat to democracy in our next two broadcasts – how it’s
happening, and what can be done about it.
We’ll begin with this current issue of "The Nation" magazine, “The
One Percent Court,” devoted entirely to the United States Supreme Court.
It’s one you’ll not want to miss – and not because it opens with an
article jointly written by me and the historian Bernard Weisberger. Our
mission was simply to remind the reader of what’s obvious: that because
of the partisan gridlock paralyzing both president and Congress, more
than ever the court has become the most powerful branch of government,
and the center of a controversy which may shape the fate of democracy
for generations to come.
With me to talk about this is "The Nation" magazine’s editor and
publisher Katrina vanden Heuvel. She’s a frequent presence on the talk
news shows and a familiar byline in major publications. She has been one
of those out in front, calling the president to task for orphaning his
values and promises, as can be seen in her most recent book, "The Change
I Believe In: Fighting for Progress in the Age of Obama."
The prolific Jamie Raskin also joins us. One of the country's leading
scholars on constitutional law, he teaches at American University and
is a Maryland State Senator, where in his first legislative session
alone he managed to see more than a dozen of his bills pass into law.
He's been described as “one of the nation’s most talented state
legislators.” His many writings include a centerpiece article in this
special issue of "The Nation."
Welcome to you both.
JAMIE RASKIN:
Thanks so much.
BILL MOYERS:
Okay, let’s play the numbers. What comes to mind when I call out 79, 76, 75, and 73?
KATRINA VANDEN HEUVEL:
The age of the four oldest justices on the court. And one of the
reasons we did this issue is that as we enter this election season, this
election could determine not only the future of the court for
generations to come but the shape of our democracy for generations to
come.
BILL MOYERS:
You've devoted whole editions of the magazine, in the past, to the Supreme Court. What makes this one different?
KATRINA VANDEN HEUVEL:
I think we're at a moment, Bill, where we are witnessing the
unprecedented concentration of power, wealth, and income. It is
reminiscent not just of The Gilded Age, but of the New Deal period, when
you had a Supreme Court which wanted to invalidate and dismantle the
New Deal legislation that President Roosevelt was putting forward.
There's always been a threat. The court has always been important.
But now we've seen a spate of 5-4 cases, 5-4, 5-4, 5-4, on the core
issues that this magazine grapples with. The A.C.A. health care
decision, in my mind, Jamie I'm sure has--
BILL MOYERS:
Obamacare decision?
KATRINA VANDEN HEUVEL:
The Obamacare--
BILL MOYERS:
Judge Roberts voting with the majority?
KATRINA VANDEN HEUVEL:
I think at that point partly because Citizens United has awakened
Americans to the understanding that this court favors corporate
interests. It's burgeoning. It's latent, but it's there. And I think
Judge Roberts decided to be an institutionalist and wanted to save the
court to come back to a next session and perhaps do some damage on
voting rights, affirmative action, and other issues.
BILL MOYERS:
You could have chosen any subject to write for Katrina, in this issue. But you chose Citizens United. Why?
JAMIE RASKIN:
The way I look at it is, we'd had a decade of right-wing derailment of
the Supreme Court and the politics of the country. In Bush vs. Gore in
2000, we had a 5-4 decision which took victory away from Vice President
Gore, who had more than a half million votes more than Bush did and gave
it to George W. Bush by intervening to stop the counting of ballots,
for the first time in American history. And the history all of us know
with the Iraq War and Afghan War and the corruption and so on.
That was the last decade. Now in 2010, a decade later a 5-4
coalition on the court, the right-wing block gets together and says,
"Corporations, for the first time in American history, are declared to
have the political free speech rights of the people, such that they can
take money directly out of the corporate treasury and put it into
politics."
Well, that threatens a total capsizing of democratic relationships
that we've known before. And it completely upends what the Supreme
Court has always said about what a corporation is. Because you can go
back to Chief Justice John Marshall in the Dartmouth College case who
said, "A corporation is an artificial entity. It's an instrument set up
by the state legislatures for economic purposes." He said, "It's
invisible. It's intangible. It exists only in contemplation of law.
And it has all of these rights and benefits conferred upon it. But it
must remain under the control of the government, essentially."
And that has been standard conservative doctrine on the Supreme Court
all the way through Chief Justice Rehnquist. Justice White who said,
"We give them limited liability. We give them perpetual life. But in
return, we ask them to stay out of politics." And there's a beautiful
sentence from Justice White dissenting in a case called First National
Bank of Boston vs. Bellotti, where he said, "The state need not permit
its own creature to consume it." And yet, this court is saying that,
"We must permit the creation of the state legislatures to consume our
politics." And so to me, the Citizens United case is the emblem for the
whole era we're in. We're living in the Citizens United Era, I think.
BILL MOYERS:
But before Citizens United, wealthy people were funneling money into
politics, corporations were forming political action committees. And
CEOs of those corporations were lavishing money on selected favored
political candidates.
JAMIE RASKIN:
Absolutely right, the corporate voice was never missing. And that's
something, you know, Justice Stevens has pointed out. He said, "There
were many faults to American politics. But nobody thought that a lack
or a dearth of corporate voices was among the vices." But there was
still a radical change effectuated by the majority--
BILL MOYERS:
How so? Radical?
JAMIE RASKIN:
--in Citizens United.
BILL MOYERS:
What do you mean?
JAMIE RASKIN:
Because before corporations could have issue ads. They could take out
an ad in the New York Times on something. Before the CEOs and
executives, as you say, could put their own money into campaigns. They
could spend to the heavens of their own money. And they could
contribute directly to candidates. But the one thing that couldn't
happen was the CEOs could not take money directly out of the treasury
and funnel it into campaigns,
ExxonMobil for example. I mean, in 2008, ExxonMobil had a political
action committee. And that was money that was given directly by
executives. People wrote checks for it. And they raised about a
million dollars, which is not chump change. And they were able to
spread it around.
But if ExxonMobil had been able to take money directly out of the
corporate treasury, their profits in that year were $45 billion. If
they had taken a modest 10 percent of their profits to spend in
politics, it would have been more than the Obama campaign, the McCain
campaign, the DNC, and the RNC, and every congressional campaign in the
country. One corporation in the Fortune 500.
KATRINA VANDEN HEUVEL:
What Jamie is describing is the reason we have unprecedented inequality
today and why we don't hear people's voices. We're hearing the voices
of money. Money is the realm, the coin of power in this country. But,
you know, one of the reasons we did this issue was because of the
trajectory of this court. Because it is true that this is a radical
shift. But we could see more dismantling of the frail structures of
campaign finance reform that remain.
BILL MOYERS:
There's hardly anything--
KATRINA VANDEN HEUVEL:
There's hardly anything left. But it has been a terrible downward
spiral. But the clean money legislation in states like Arizona, the ban
on corporate spending in Montana. These are other steps that this
court could take if it moved to not a 5-4, but if you had more
right-wing justices on this court. But it--
KATRINA VANDEN HEUVEL:
There's no question that the arc, as Jamie said, from Bush v. Gore,
which in so many ways was a right-wing coup. When you talk to people
outside this country, they saw it as that. I mean, you had the brother
of the governor overseeing the decision and the justices shutting down
democratic votes to this decision.
BILL MOYERS:
Do you agree with Jamie that Citizens United is a game changer?
KATRINA VANDEN HEUVEL:
Yes, I do.
JAMIE RASKIN:
But it's also emblematic of what's going on in the court. If you look
at the 2011, last year's Supreme Court term, the court wiped out a very
important class action suit brought by women in the Wal-Mart stores. A
million and a half women brought a class action, again, a 5-4 decision
saying that they didn't have enough in common with each other. They had
not alleged a sufficiently common element to their complaint. The sex
discrimination wasn't enough. They didn't have the same supervisor, for
example.
Of course, they were all over the country. We saw another major
blowout decision against consumers in-- AT&T Mobile versus
Concepcion, where a family responded to an ad saying, "Get a free
phone." And then after they got a free phone, they got a bill for $30,
which was to go for taxes. They brought a suit. It was consolidated
with a class-action suit. And AT&T said, "Well, you've signed our
boilerplate adhesion contract which says you've got to go to independent
arbitration."
That was appealed. And the Ninth Circuit said that you can't do that
to people. This is unconscionable to steer them away from the ability
to get judicial relief. Well, 5-4 decision reverses that in AT&T
versus Concepcion. And the court said it was preempted by the Federal
Arbitration Act.
KATRINA VANDEN HEUVEL:
And also the court siding with management against labor. Basically
invalidating the National Labor Relations Act. And we saw in this
decision which was underreported, because it was just on the eve of the
Obamacare health care decision, Knox vs. S.E.I.U., Service Employee
International Union.
Some called that the Scott Walker decision, because it placed such an
undue burden on public employees that it has made collective bargaining
more difficult. Dahlia Lithwick, has a piece in the issue, builds on
what Jamie was saying, which is that in some ways the move to
arbitration has closed off the possibilities of class action. Which has
been an avenue for ordinary citizens to challenge corporate power,
corporations, their malfeasance. And that is a trend which I believe we
need to bring more attention to. It may seem dry, but again, it
affects everyday lives.
BILL MOYERS:
You open your article with a quote from the announcer in The Hunger
Games. "And may the odds be ever in your favor." What are you trying
to tell us?
JAMIE RASKIN:
Well, in the Citizens United era, we're moving dangerously close into a
kind of corporate state mentality, where the corporations operate with
impunity in the Supreme Court. And they're now endowed not with
personhood rights, as some people think, but super personhood rights.
Because they have all kinds of protections that ordinary human beings
don't have, like limited liability and perpetual life. And they
continue to, you know, accrue wealth through the generations.
But now they're given political free speech rights that people
theoretically have. But of course, most American citizens don't have
millions of dollars to spend in politics. But the corporations do. And
it’s, you know, a matter of chump change for them to put several
million dollars into a campaign that could, you know, very much affect
the direction of public policy.
BILL MOYERS:
You live in New York, Katrina, if you were explaining to another
straphanger on a moving subway the impact on that person's life of
Citizens United, what would you tell her before the next stop?
KATRINA VANDEN HEUVEL:
What's misunderstood is that money is not an abstraction. Money will
decide how people live, how their children are raised and treated, and
how you're treated by corporations. I mean, if you're defrauded by
AT&T and you don't have access to a fair legal system, you're not
living in a fair democracy.
JAMIE RASKIN:
And it's a fundamental distortion of a fair market, too. That's the
other thing. It's not just an offense to Thomas Jefferson. It's an
offense to Adam Smith.
BILL MOYERS:
And by the way, this is why some conservatives I've talked to are
distressed by Citizens United. They do not see it as a boon to--
JAMIE RASKIN:
Corporations should compete based on the ingenuity of their engineers,
their ability to come up with better products, not based on an army of
lobbyists that they send to Washington or the amount of money they can
put into politics to get their guy elected to office.
KATRINA VANDEN HEUVEL:
You know, what I really dislike about the current campaign is this idea
if you raise a question of corporate power that you're antibusiness.
We're not antibusiness. We're simply saying that you need to have
labor. You need to have organized citizens given the same rights as
corporations are now being given. The rights of free association are
being limited while the rights of corporations are being enhanced. So
that countervailing power, which was at the heart of an American
politics and system, is being diminished and dismantled.
So the fact that the federal district and appellate courts are
deciding so much, and those have been so seriously already reshaped by
Bush, by the right. It's a long game that the right has played. And
that it's not too late but it's almost too late--
BILL MOYERS:
You've been publishing about this. You've been writing about this for
some time now. You both have seen this coming. You've written about
how the court has been taking the side of corporations against
regulators. And as you said a moment ago, the corporations against
citizens. So wasn't Citizens United the logical next step to this trend
that has--
JAMIE RASKIN:
Oh, it absolutely was. I mean, Justice Powell was a key figure here.
He wrote this memorandum as a private lawyer for the Chamber of Commerce
in 1971 saying, "We need a counter-attack against the environmentalists
and the labor unions and so on." And developed a whole strategy for
kind of a corporate takeover of the judiciary and politic.
BILL MOYERS:
By the way, you said something very important. Justice Lewis Powell,
then a lawyer in Virginia, wrote this for the Chamber of Commerce, later
became appointed by Richard Nixon to the Supreme Court.
JAMIE RASKIN:
Just several months later.
BILL MOYERS:
Many people look at the Powell Memo as the charter--
KATRINA VANDEN HEUVEL:
The foundational, the foundational document.
JAMIE RASKIN:
And the first big case in this direction was the First National Bank of
Boston vs. Bellotti case, which he wrote the decision on. And what it
said was corporations -- the identity of the speaker is irrelevant,
which becomes the key--
BILL MOYERS:
What does that mean?
JAMIE RASKIN:
What it means is you can't tell corporations that they can't put their
money into politics just because they're a corporation. Which has, I
guess, a surface plausibility to it. But then would you say that, for
example, the City of New York can put money into an election--
KATRINA VANDEN HEUVEL:
That could be the next step.
JAMIE RASKIN:
--to tell people how to vote?
BILL MOYERS:
If we had any money. City of New York is broke.
JAMIE RASKIN:
Can churches put their money in? I mean, if the identity of the speaker
is really irrelevant. And even the court itself has not gone with that
notion, because the next step was the right-wing lawyers who are
pushing this today like James Bopp said, "Well, then we should have a
right to give money directly to campaigns." Corporate contributions are
next. And the court, at least at this point, is unwilling to go that
far. So it doesn't totally buy the rhetoric of the identity of the
speaker is irrelevant. But the First Amendment is being used today the
way that the Lochner Court in the attack on the New Deal used due
process.
BILL MOYERS:
Back in the '30s.
JAMIE RASKIN:
Which is you get everything through the First Amendment. For example,
this outrageous case from 2011 from Vermont, Sorrell's decision, which
struck down a patient and physician confidentiality law, which said that
pharmacies and insurance companies could not sell-- information about
patients being prescribed particular drugs by doctors directly to
pharmaceutical companies. And the Supreme Court struck that down as a
violation of the First Amendment, which is incredible that the data
that's being collected by physicians somehow is free speech. And the
pharmaceuticals have a right to it.
BILL MOYERS:
So you could tell the straphanger on the subway that the data she gives
her physician about her health could be sold by him to some corporate
cause--
JAMIE RASKIN:
Absolutely.
BILL MOYERS:
--to some corporate subscriber.
JAMIE RASKIN:
Now her name wouldn't be in it, at least in this variation.
BILL MOYERS:
But it does change the relationship.
JAMIE RASKIN:
It changes the relationship. And the point is that the First Amendment
is being used by corporations to get everything that they want,
including the right, basically, to own campaigns.
BILL MOYERS:
Is your position that corporations do not have quote "free speech" under the First Amendment?
JAMIE RASKIN:
They have commercial speech rights. And this is a point that Justice
Breyer makes very effectively in the Vermont decision. He says, "What's
happening is the majority is confusing the political speech, free
speech rights of the citizenry with the commercial speech rights of
businesses."
And those rights are constricted. For example, we say that states
can punish businesses for lying and defrauding people. But we don't say
that in politics. Politicians get up and say almost anything. And you
can't sue them for fraud, basically. But commercial speech is a much
lesser notion, because corporations are instrumentalities of the state.
And they're endowed with all of these great rights and privileges that
have made them fantastic accumulators of wealth and investors of money.
But everybody from Chief Justice Marshall to Rehnquist to Justice White
said, "You don't let them convert their economic power into political
power."
And that is the fateful step that's been taken by the Roberts Court.
BILL MOYERS:
Justice Scalia would disagree with you. I want to show you Justice Scalia earlier this summer on CNN.
PIERS MORGAN:
At that moment, under your interpretation, I believe, of the
Constitution, you should be allowed to raise money for a political
party. The problem, as I see it and many critics see it, is that it has
no limitation to it. So what you've now got are these super PACS funded
by billionaires effectively trying to buy elections. And that cannot be
what the Founding Fathers intended. Thomas Jefferson didn't sit there
constructing something which was going to be abused in that kind of way.
And I do think it's been abused, don't you?
ANTONIN SCALIA:
No. I think Thomas Jefferson would have said the more speech, the
better. That's what the First Amendment is all about. So long as the
people know where the speech is coming from.
PIERS MORGAN:
But it's not speech when it's...
ANTONIN SCALIA:
The first...
PIERS MORGAN:
-- it's ultimately about money to back up the speech.
ANTONIN SCALIA:
You can't separate speech from the money that facilitates the speech.
PIERS MORGAN:
Can't you?
ANTONIN SCALIA:
It's utterly impossible.
Could you tell newspaper publishers you can only spend so much money in the publication of your newspaper?
Would they not say this is abridging my speech?
PIERS MORGAN:
Yes, but newspaper publishers aren't buying elections. I mean to -- you
know, the election of a president, as you know better than anybody else,
you've served under many of them...
ANTONIN SCALIA:
I--
PIERS MORGAN:
-- is an incredibly important thing.
ANTONIN SCALIA:
Newspapers...
PIERS MORGAN:
And it shouldn't be susceptible to the highest bidder, should it?
ANTONIN SCALIA:
Newspapers endorse political candidates all the time. What do you mean -- they're almost in the business of doing that.
PIERS MORGAN:
Yes.
ANTONIN SCALIA:
And are you going to limit the amount of money they can spend on it?
PIERS MORGAN:
Do you think the...
ANTONIN SCALIA:
Surely not.
PIERS MORGAN:
Do you think, perhaps, they should be?
ANTONIN SCALIA:
Oh, I certainly think not. I think, as I think the framers thought, that the more speech, the better.
JAMIE RASKIN:
Well first of all, the freedom of the press is just an irrelevant
distraction from this. And that's an easy question, not that difficult a
question. The good justice betrays either an ignorance of what Thomas
Jefferson's position was or a willful defiance of it. Because Jefferson
wrote several times about how afraid he was about an encroaching
corporate tyranny and corporations who already, with their charters
would bid fair to the laws of the land, in attempt to go off in their
own direction.
BILL MOYERS:
You actually quote Jefferson on the rise of a quote "single and splendid
government of an aristocracy founded on banking institutions and
incorporations." He said they would ride and rule over the plundered
ploughman and beggared yeomanry. The ordinary citizen, right?
JAMIE RASKIN:
Well, look, our founders understood power. And one thing that Jefferson
really believed in, he invented the phrase "the wall of separation
between Church and State," was dividing power up. And one way we've
divided power up over the last century is building a kind of wall of
separation between corporate treasury, wealth, and public elections.
That wall has been bulldozed by the Roberts Court. And now they're
letting the corporate money flow in. And everybody knows, I think,
across the country, what that means, from Montana to Florida. You know,
what that means to have corporations directly involved in politics. And
look, we should want corporations out competing and prospering and
thriving and profiting. But we shouldn't want corporations to govern,
because that inverts the proper democratic relationship.
KATRINA VANDEN HEUVEL:
Part of what Scalia and these originalist judges have done, and the
right, is appropriate the language, is take the language. And we
haven't found a narrative and a language to explain the importance of
the court. They use terms like "freedom" and "liberty" and "activist
judges.” And the importance of talking about the fairness and the
balance and how these kinds of decisions infringe on the individual
liberty of people.
It seems to me an important mission, as well as working with those in
Congress to hold accountable State Senators, to hold accountable a
president, to appoint and deepen the bench of those who understand the
fairness and balance. And the values of freedom, of opportunity, of
equality, that are at the core of our country's purpose and
constitution.
BILL MOYERS:
You include in here some very specific, concrete examples. I was
especially taken with a particular case that you make in your
centerpiece, where you say that the 2010 election should have been
framed by three major events. They were?
JAMIE RASKIN:
Corporate catastrophes.
BILL MOYERS:
They were?
JAMIE RASKIN:
The BP oil spill, which destroyed an entire ecosystem and created
billions of dollars worth of damage. The Massey Corporation's
collapsing coal mines, which caused the deaths of 29 people and--
BILL MOYERS:
In West Virginia.
JAMIE RASKIN:
--suffering in West Virginia. And then, of course, the biggest of them
all, which was the subprime mortgage meltdown, which destroyed trillions
of dollars of wealth for the American people, in terms of people's
retirement incomes, their home values, and so on. That should have been
what the campaign was about.
BILL MOYERS:
But they weren't--
JAMIE RASKIN:
No.
BILL MOYERS:
--what the campaign was about, because?
JAMIE RASKIN:
Well, we saw, because of Citizens United and an infusion of hundreds of
millions of dollars, an unprecedented amount of corporate money coming
in, not just through Super PACs, but as The Nation pointed out, through
501c4's and c6's, what we saw was a complete reframing of the issue to
the big culprit being regulation. And so the theme of the campaign was
corporate deregulation being the solution to all of our problems. It
was like a parallel universe.
BILL MOYERS:
And it worked because the Republicans, funded by many of these
corporations and billionaires, took control of the House. Sixty-three
votes, I think they won then. And fulfilled the wishes of their funders
for deregulation.
JAMIE RASKIN:
And the corporate-funded Tea Party caucus in the Republican Party, in
the House has basically been driving the train of government, which is
why we've had near, you know, financial collapses again through these
various debt controversies that have been taking place.
KATRINA VANDEN HEUVEL:
But let me broaden it. I agree with Jamie that those are the three
disasters which should have been at the focus of our attention. But it
is the case that across the board, at the moment, the idea that we need
austerity in this country, that jobs aren't the great crisis of our--
you know, the joblessness isn't the great crisis of our time, but debt
and deficits. That's also a function of the .01 percent who are the big
players, who have the money, Democrat and Republican, who are funding
these elections.
Because if it wasn't that kind of money in our system, you would hear
more of the people's voices and those who lost their wealth through the
terrible subprime mortgage disaster, those who are seeking jobs, 26
million people in this country either underemployed or unemployed.
Those voices aren't heard, because of the din of money in the system.
You know the story, what is it, seven lobbyists for every
representative. It may be ten, at this stage.
And one thing that isn't paid as much attention to. You have the
lobbyists. But this National Chamber Litigation Center, the N.C.L.C.,
started by the Chamber of Commerce, again an outgrowth of the Powell
Memo. Its record is better than the solicitor general. And if you want
to track the court--
BILL MOYERS:
They've won more cases before the court.
KATRINA VANDEN HEUVEL:
They've won more cases before the court. And a nonpartisan group, The
Constitutional Accountability Center documented this. And in the last, I
think it was 2010-2011, their record was unblemished, meaning they won
all the cases brought before the court. And this is the Chamber's
specialized litigation bar. Now there are good environmental consumer
civil rights, civil liberties groups working.
But you don’t have that coherence. And you certainly don't have
foundations and individuals in this country supporting those groups in
the way that the right has supported the Chamber of Commerce and this
kind of bar. That distorts justice. It's about money. And what's
always shocking, and not to diminish the amount of this money in the
system, is for some of these people this is chump change that they're
putting into the system, in terms of investment on return, because they
will buy the deregulation, the low taxes, the ability to pollute, the
ability literally to kill, as was the case in the Massey mine disaster,
29 miners killed because of the deregulation and the lax oversight. Why
is that? Partly because of the starving of government, but also
because the money in the system gives them the power.
JAMIE RASKIN:
Well, and the Massey Company's exactly what Thomas Jefferson was talking
about, a company that defied the law, had hundreds of violations
written up--
KATRINA VANDEN HEUVEL:
That's right.
JAMIE RASKIN:
--against it. Constantly litigated and gone against the government.
Put millions of dollars into politics, in order to have its way, and
continues to be a major political actor, despite its being essentially a
criminal corporation, in terms of its disregard of human life and its
defiance of the law.
BILL MOYERS:
I talked to a well-known, a leading, and a very thoughtful conservative
yesterday about the magazine. And he said, "Katrina is hyperbolic about
this. We've only taken a small step to the right, trying to reverse
the pendulum that swung so far, not only under Roosevelt, but under
Lyndon Johnson and that period of the '60s when the conservatives had to
grit their teeth and the only thing they could do was say, 'Let's
impeach Earl Warren,' because all of what he called the social liberal
causes that the court was trying to push down our throats." He says,
"We're just correcting history." That was what he said.
KATRINA VANDEN HEUVEL:
No, first of all, what's interesting about this issue in my mind is
we're not dealing with some of the important cultural issues, which
often rile up the right and rile up so many. Abortion--
RASKIN:
Guns.
KATRINA VANDEN HEUVEL:
The schools, guns.
BILL MOYERS:
Guns. Gay rights.
KATRINA VANDEN HEUVEL:
The whole-- but I think on the corporate front, this is an extremist
court. A court that has shifted so far to the right that it is beyond
just the backlash to the Warren and Berger courts, and moving in a
direction that has very little check on it. And I don't believe it's
hyperbolic.
In fact, you know, very sober commentators in commenting on the
Roberts Court on the eve of the health care decision, noted how
extremist, how radical the four or five-- I won't call them
conservative, the right-wing justices on the court were in terms of
literally-- one thing Jamie hasn't talked about is Citizens United, and
he will express this far better than I do, they literally called back
the case in order to open a jurisprudence--
JAMIE RASKIN:
You talk about judicial activists.
KATRINA VANDEN HEUVEL:
Activism, that's right.
JAMIE RASKIN:
Well, judicial-- I mean, for one thing, the masterpiece of judicial
activism was, of course, Bush vs. Gore, where the Supreme Court
intervened in democratic politics to stop the counting of ballots. Then
a decade later, we get Citizens United, where the court says, "You
know, we don't like the questions presented, even by this conservative
group, Citizens United."
All they were saying was, "Don't treat our made for TV pay-per-view
movie like a TV ad." And I think anybody could have gone along with
that. They said, "That's not quite sweeping enough for us. We want to
know, does every corporation in America have political free speech
rights, such that they can take money out of the treasury and put it
into politics. Go brief that." They briefed it. They came back. They
reargued it. And what do you know, five justices say, "Yeah, they've
got that right."
BILL MOYERS:
Alito and Roberts both come out of a corporate background, either serving corporations as lawyers or teaching corporate law.
KATRINA VANDEN HEUVEL:
Well, this is an-- I mean, in the issue, there's a piece by Sherrilyn
Ifill which is interesting, because on the face of it, the court looks
diverse. But when you look at their actual professional backgrounds, I
believe that eight come out of the appellate court system. Elena Kagan,
solicitor general. But you don't have a Thurgood Marshall, who had
experience in civil rights or practical--
BILL MOYERS:
Real life experience.
KATRINA VANDEN HEUVEL:
--experience and real life experience that could connect to ordinary
citizens. And so I think that diversity is something we've lost and has
been an--
JAMIE RASKIN:
And what's interesting--
KATRINA VANDEN HEUVEL:
--important part of the court.
JAMIE RASKIN:
--is that it's not a partisan question that Katrina is raising here. I
mean, my two favorite justices were Republican appointees, Justice
Souter and Justice Stevens. They were incredible. They were
evenhanded. They were serious and sober. They never would have gone
along with this and didn't go along with this idea that somehow
corporations should be treated like citizens for the purposes of
political free speech--
BILL MOYERS:
So what's happened?
JAMIE RASKIN:
Well, part of it is this story of the extremism of the Republican Party
today. Because after Justice Souter was named to the court, the slogan,
the mantra within the Republican Party was "No more Souters." They
really are imposing a very strict litmus test, not just on the right to
privacy and abortion but also on these corporate questions.
They want to see that you’re going to be, down the line, just voting
with corporate, you know, big corporations regardless of what it is that
they're saying. And that's not justice. We don't want justices who
are pro-corporate or anti-corporate. We want people who are going to--
KATRINA VANDEN HEUVEL:
Who are fair.
JAMIE RASKIN:
--enforce the rule of law.
KATRINA VANDEN HEUVEL:
The rule of law.
JAMIE RASKIN:
And here, what we've got is a complete derailment of the rule of law,
just like we have a derailment of democracy. Because we have one part
of society that's gotten too much power. And, you know, the economists,
conservative economists talk about the difference between societies
where the economy is closed and you have extractive industries that are
taking money for themselves. And they end up closing politics at the
same time. Versus societies that are open, that have open free markets
and open politics. And we're moving to a closed kind of economy and a
closed kind of society.
KATRINA VANDEN HEUVEL:
And I would say, you know, Jamie talks about the extremism of the
Republican Party, yes. But go back 40 years, because it was the revolt
of the plutocrats, which was part of the Powell Memo and the reason for
the Powell Memo. And that revolt is winning now. It was class war
waged from the top down. And I think we're seeing the culmination of
the Powell doctrine so to speak, which is that corporations should not
be checked, should not be fettered, and that they have free reign of the
land. And that--
BILL MOYERS:
What puzzles me, Katrina, is that that's not a conservative position necessarily.
KATRINA VANDEN HEUVEL:
No, it's an extremist. I don't-- I believe in conservatism. I believe
that there is a role for conservatives. I believe that there's a role
for a conservative Republican Party in this country. And we can talk
about Edmund Burke and all of that. But at the moment, we're witnessing
an extremist Republican Party willing to ravage and savage the freedoms
and liberties in the name of-- they want to say greater good, but it
essentially is a corporate good.
And I would argue that we're now going to witness a court next
session, and Jamie follows this more closely that there is a
well-funded, right-wing intellectual and corporate campaign now to try
and really gut the Voting Rights Act, which I see linked to this,
because I think more voices, more diversity in our political system can
counter some of this corporate power. And if that's gutted, we are at
great risk of a monotone political system.
JAMIE RASKIN:
And that's why I invoke The Hunger Games. Because I think it doesn't
have anything to do with conservatism. It has to do with corporatism.
And that's a completely different philosophy of government.
KATRINA VANDEN HEUVEL:
Or Jamie has this great term, "jurist corporatists."
JAMIE RASKIN:
Jurist corporatists.
KATRINA VANDEN HEUVEL:
Jurist corporatists. Jurist corporatists.
BILL MOYERS:
So The Hunger Games announcer is, in effect, speaking for the corporate state, right?
JAMIE RASKIN:
Yeah, I mean, she's basically saying, "May the odds be ever in your
favor," wink, wink. "But everything is stacked against you once you
arrive here."
BILL MOYERS:
And are the odds now in the favor of corporations on the Supreme Court?
JAMIE RASKIN:
You know, if you check out the People for the American Way website,
where I follow the Supreme Court decisions, you will see case after
case, where the court is throwing out tort verdicts against large
corporations, jury verdicts for plaintiffs, throwing them out, because
it's preempted by this federal law or that federal law or "You messed up
the class-action mechanism below." There's always a reason why the
little guy's got to lose.
BILL MOYERS:
Well, you have written that over history the people have turned against
the court and amended the Constitution 16-17 times when the enemies of
democracy were slaveholders or people trying to prevent a minimum wage
or stop women from voting and right on down. Is it feasible to expect
that another amendment could reverse Citizens United?
JAMIE RASKIN:
You know, we've had 17 amendments since the Bill of Rights. Most of
them have been suffrage expanding, democracy enlarging amendments, where
in a number of cases the people had to confront the court. So the
court says in the Dred Scott decision that African Americans can never
be citizens and persons within the meaning of the Constitution.
And it took a civil war and a whole bunch of constitutional
amendments to reverse that. The Supreme Court said, "Women don't have
the right to vote." In Minor vs. Happersett, despite the 14th
Amendment. That got reversed by the 19th Amendment. The Supreme Court
upheld poll taxes and that got reversed by the 24th Amendment.
So there are a whole bunch of cases where the people have said, "You
know what? The court is a fundamentally conservative institution, often
times reactionary. And we've got to confront their power and tell them
what the Constitution really means. Because the first three words of
the Constitution are 'We the people,' not 'We the court' not 'We the
corporations' but the people."
KATRINA VANDEN HEUVEL:
I mean, the struggle in the country today is between "of, by, and for
the people" and "of, by, and for the one percent," speaking about the
corporate powers. And I think the importance of framing the debate
about the future of the court, as this issue tries to do, between those
who would roll back the civilizing advances of this country,
economically, politically, socially against those who want to build a
more just, fair, and diverse country.
And in the future of this country, the demographic shifts, for
example, I do think the right looks out at this country, doesn't like
what it sees, which is why you see the influx of money and the voting
right suppression. And those two fused may give them a last hurrah, but
there is a struggle moving forward in a different country that they may
not be able to win.
BILL MOYERS:
One of my colleagues asked me to tweet to her the essence of your
magazine. Would this be an accurate expression of the essence of what
you've done here? "The Supreme Court is now a corporate court that by
giving big business the advantage is shrinking access to justice for
everyday citizens."
KATRINA VANDEN HEUVEL:
Most beautiful 140 characters I've heard.
BILL MOYERS:
Right out of your magazine, too. Jamie Raskin, Katrina vanden Heuvel, thank you very much for being with me.
JAMIE RASKIN:
Thanks for having us.
