There Oughta Be A Law…. But There Won’t Be Unless We Change the Constitution

Are you one of those people who are constantly saying “there oughta be a law”? I am - which is probably why I ended up a consumer advocate.

Some pretty lofty assumptions about democracy are built into that quaint phrase, if you think about it. For one, it assumes that law is a good way to resolve disputes (as compared, say, to fists or guns). Also, that everybody will obey the law. Perhaps most obvious, when someone says, “there oughta be a law,” they’re asserting our right as Americans to make things better for ourselves by getting the legislative branch to address an issue of public importance.

Indeed, the "the right of the people...to petition the Government for a redress of grievances" is built into the First Amendment - the same amendment that five members of the United States Supreme Court pretty much erased from the Constitution in the Citizens United case two years ago.

By now, everyone understands that by giving corporations the same First Amendment rights as humans, and then ruling that spending money to influence elections is a form of “free speech,” the Supreme Court in Citizens United unleashed a tsunami of corporate money that will drown out the voices of 99% percent of Americans in favor of the 1% who have the wealth to determine who wins elections. “Free” speech can’t compete with hundreds of millions of dollars of paid propaganda.

What’s not been much discussed is how the Supreme Court decision actually conflicts with the rest of the First Amendment: it has negated our right to petition government for a redress of grievances.

Consider another Supreme Court-imposed debacle: in 2011, the high court ruled that consumers who sue big companies in class actions can be thrown out of court and forced to go into “arbitration” – a system in which the company hires private “judges” to determine whether the company broke the law. The Federal Arbitration Act specifically says that arbitration doesn’t apply if the arbitration clause violates a state’s consumer protection law. But the Supreme Court refused to recognize that exception. The case is Concepcion v AT&T Mobility. In that lawsuit, consumers challenged AT&T for adding extra charges to the purchase of a cell phone that the company had advertised as “free.” The decision – another enormous victory for big corporations – strips American consumers of their right to hold a company accountable for rip-offs big or small.

Unlike the Court’s ruling in Citizens United, which interpreted the US Constitution, Congress could easily amend the Federal Arbitration Act to reverse the Concepcion decision. But will it? Forget about the House of Representatives: it’s controlled by corporate Republicans who are owned by the cell phone companies. (The House was close to passing a bill that would have allowed  telemarketers and debt collectors to call consumers’ cell phones with recorded messages. A huge public outcry delayed the legislation.)

But in the Democrat controlled US Senate, a bill to override the Supreme Court’s arbitration ruling has only fifteen cosponsors.

In California, we are lucky to have the ballot initiative, which allows us to take matters into our own hands when state legislators are too beholden to special interests to deal with important issues. Using the initiative process, California voters passed Proposition 103 to restrain price gouging by auto, home and business insurance companies. My colleagues at Consumer Watchdog are now proposing an initiative to put health insurance premiums under Proposition 103’s controls. But even the people’s initiative process has been corrupted by corporate money. And attempts to ban corporate interference in ballot initiative campaigns ran smack into, once again, a decision by the United States Supreme Court.

Indeed, you don’t have to be an astute observer of politics to know that corporate money has long corrupted politics. Our report, “Sold Out: How Wall Street and Washington Betrayed America” (PDF), published in March 2009, got right to the bottom line in its title. Between 1998 and 2008, Wall Street invested $5 billion in Washington, a combination of money for lobbying and campaign contributions that won deregulation and other policy decisions that enabled the financial industry to do as it pleased. The ensuing orgy of unbridled speculation came to a halt in 2008 when the financial industry threatened to shut down the system unless they got trillions of dollars in loans, tax breaks and other taxpayer bailouts.

Laws regulating corporate spending in elections and lobbying were intended to limit the damage to democracy. Some, including me, would argue that they didn’t work anyhow. But Citizens United has eliminated any chance of righting the imbalance of political power between corporations and human beings short of changing the United States Constitution itself. We’re proposing exactly that: a 28th Amendment to the Constitution that reads “The protections of the First Amendment that apply to the spending of money on lobbying and elections, whether by contributions, expenditures or otherwise, shall extend only to human beings.” Join us right now.

Citizens United / Harvey Column - 02/06/2012

Is There a Secret White House Memo on Corporate Control of our Country?

An internal White House memo in 2010, just before the Supreme Court’s outrageous decision in Citizens United, suggested President Obama address the influence of money in politics. Other items crowded his agenda instead, but this election year President Obama would be wise to take up the citizen call for a 28th Constitutional Amendment to end the corruption caused by the Court’s corporate personhood decision.

First, some important background on the 2010 memo. It used to be that a history of a presidential administration would await the president’s departure, but in recent years mid-term profiles have become the norm. Bob Woodward chronicled the Bush White House with four books, and Ron Suskind’s “Confidence Men,” published last year, captured President Obama’s errors in strategy and communications. Both authors had access to sources close to the top of the White House. But this week’s New Yorker takes the genre to a new level. Ryan Lizza’s “The Obama Memos” is a fascinating analysis of the Obama presidency that relies greatly on White House memos that Lizza somehow obtained.  One of them, the transition team’s memo to the president-elect in 2008 on the economy, is available in its entirety for download on the New Yorker site.

It was another memo, excerpted in a sidebar, that really got my attention. It was from the President’s political advisers, in late December 2009 according to Lizza, and listed “ideas on how on how try and recapture some of the anti-Washington spirit of his 2008 campaign” in the President’s 2010 State of the Union address. One of the suggestions in the memo anticipated the Supreme Court’s decision in the Citizens United case.

Campaign Finance reform: By the time of the SOTU [State of the Union], the Citizens United case will have been handed down and at the time of the decision will likely make an announcement on our response/plans. We could use the SOTU opportunity to push the ball forward on whatever proposal we put forward, calling on Congress to act by a ‘date certain’ or further fleshing out our proposals.

The Court handed down its decision on January 21, just a week before the State of the Union speech. Of course, no one expected the decision to cement into American Constitutional law the proposition that corporations have the same First Amendment rights as human beings and that spending money to influence elections is a form of free speech. So when the advisers referred to the White House's “response/plans,” it was not clear what kind of decision they were expecting, or what they thought they could do about it.

We now know that the only thing that can be done about Citizens United is for the American people to join together to overrule it, by passing the 28th Amendment to the Constitution, such as the one we have proposed.

Meanwhile, the President had something to say about corporate money in politics at the end of his State of the Union speech on January 27, 2010, and it stirred quite a controversy. He began by noting that a byproduct of the 2008 financial collapse was the public’s loss of confidence in government of, by and for the people:

We face a deficit of trust -– deep and corrosive doubts about how Washington works that have been growing for years. To close that credibility gap we have to take action on both ends of Pennsylvania Avenue -- to end the outsized influence of lobbyists; to do our work openly; to give our people the government they deserve.

 Then, with members of the Supreme Court seated right in front of him, he slammed the Court’s ruling in Citizens United:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems.

It was a powerful moment, to be sure, though hardly the assault on the Court that it was subsequently described as, at least in some quarters.

What happened next created the evening’s drama. Supreme Court Justice Samuel Alito, who had voted in favor of the Court’s ruling, took it upon himself to provide some instant analysis. Cameras caught Alito angrily mouthing the words “not true” in response to Obama’s critique. The New York Times recalled the moment recently.

Whatever the President or anyone else thought that night about the week-old decision, it has since opened the floodgates of corporate money while individual Americans – I’m referring to the human beings who cast ballots, not so-called "corporate citizens" – have become bystanders. Decades-old laws limiting the influence of big money in politics have fallen, with few exceptions – one of which I wrote about last week.

It’ll likely be a few years before we get to read the memos that his political team is forwarding President Obama this year. But focus on Citizens United and the power of corporations to determine the outcome of supposedly “free” elections in what is proudly hailed as the world’s greatest democracy is certainly consistent with the themes of government accountability and the ninety nine percent vs. the one percent that are dominating public discourse and even the debates between the pro-corporate Republican presidential candidates. Obama would find a welcoming, bipartisan audience for the 28th Amendment. Let’s see how far he’s prepared to go.

 

Citizens United / D.C. Disconnect / Harvey Column / Outrage / President Barack Obama / Supreme Court - 01/30/2012

Court vs. Court

I’ve been a lawyer for thirty-two years, and I’ve never read a judicial decision like the one that the Montana Supreme Court issued last December 30.

While every court in this country – from the lowest state court to the federal tribunals – sees its job as obeying the dictates of the United States Supreme Court, the Montana Supreme Court chose to obey the U.S. Constitution instead.

The bottom line: the Montana court refused to comply with the US Supreme Court’s infamous 2010 decision in Citizens United, which struck down legal limits on how much corporations could spend on electing politicians or passing ballot measures. The Supreme Court ruled that corporations have a First Amendment right to intervene and influence our democracy with cash. Spending money is a form of free speech, said five of the nine justices. And by that one vote majority, the United States Supreme Court made corporations more powerful than government, more powerful than human beings. The second anniversary of the Citizens United ruling sparked a day of national protest, as my colleague Marty Berg reports.

Like many states, Montana had strong campaign spending laws, including disclosure of campaign contributors and one that prohibits corporations from giving money directly to candidates for public office out of the company treasury. Instead, corporations that want to get involved in elections are required to set up a special fund that can receive donations from individual corporate employees or shareholders and use that money for gifts to politicians or political causes.

As the Montana opinion explains, a Colorado-based organization known as “Western Tradition Partnership” sued to invalidate Montana’s corporate campaign controls, saying they were unconstitutional under Citizens United. Now known as “American Tradition Partnership,” the organization’s supporters and funding are murky, but it’s views are clear: it is extremely anti-environment. The Montana Supreme Court described its purpose as “to act as a conduit of funds for persons and entities including corporations who want to spend money anonymously to influence Montana elections. WTP seeks to make unlimited expenditures in Montana elections from these anonymous funding sources. WTP’s operation is premised on the fact, or at least the assumption, that its independent expenditures have a determinative influence on the outcome of elections in Montana.”

Lots of states have dealt with Citizens United by repealing or rewriting their campaign spending laws. Not Montana.

The Montana Supreme Court decision begins by discussing how in the late 1800s, big mining interests used money to back or bribe elected officials in Montana to take control of state government. The corruption got so bad that many citizens of the state lost their faith in government. “This naked corporate manipulation of the very government (Governor and Legislature) of the State ultimately resulted in populist reforms that are still part of Montana law,” writes Montana Chief Justice Mike McGrath. Among the reforms: the initiative process, and, in 1912, the limits on corporate spending.

“The question then, is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did,” the Chief Justice writes. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because the shadowy backers of WTP seek to promote their interests? Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines? We think not.”

While the US Supreme Court justices saw no “compelling interest” in limiting corporate contributions, the Montana Supreme Court had a different view: “Montana has a clear interest in preserving the integrity of its electoral process”;  “it also has an interest in encouraging the full participation of the Montana electorate”; and “a continuing and compelling interest in, and a constitutional right to, an independent, fair and impartial judiciary,” one that is not subject to being bought by corporations who elect friendly judges.

Concluding that “the impact of unlimited corporate donations creates a dominating impact on the political process and inevitably minimizes the impact of individual citizens,” the Montana Supreme Court refused to apply Citizens United and upheld the state’s campaign 100 year old reform law.

But that was only the majority opinion. Wait till you hear what the two dissenting justices had to say:

The first, Justice Beth Baker: “The value of disclosure in preventing corruption cannot be understated.” But, she continues, “I believe it is our unflagging obligation, in keeping with the courts’ duty to safeguard the rule of law, to honor the decisions of our nation’s highest Court.”

Justice James Nelson gets the last word, and it’s a doozy.

He writes:

“I thoroughly disagree with the Supreme Court’s decision in Citizens United…. I am deeply frustrated, as are many Americans, with the reach of Citizens United. The First Amendment has now been elevated to a vaunted and isolated position so as to endow corporations with extravagant rights of political speech and, with those rights, the exaggerated power to influence voters and elections….. In my view, Citizens United has turned the First Amendment’s 'open marketplace' of ideas into an auction house for Friedmanian corporatists. Freedom of speech is now synonymous with freedom to spend. Speech equals money; money equals democracy. This decidedly was not the view of the constitutional founders, who favored the preeminence of individual interests over those of big business.”

“It defies reality to suggest that millions of dollars in slick television and Internet ads—put out by entities whose purpose and expertise, in the first place, is to persuade people to buy what’s being sold—carry the same weight as the fliers of citizen candidates and the letters to the editor of John and Mary Public. It is utter nonsense to think that ordinary citizens or candidates can spend enough to place their experience, wisdom, and views before the voters and keep pace with the virtually unlimited spending capability of corporations to place corporate views before the electorate.”

“I absolutely do not agree that corporate money in the form of ‘independent expenditures’ expressly advocating the election or defeat of candidates cannot give rise to corruption or the appearance of corruption. Of course it can. Even the most cursory review of decades of partisan campaigns and elections, whether state or federal, demonstrates this. Citizens United held that the only sufficiently important governmental interest in preventing corruption or the appearance of corruption is one that is limited to quid pro quo corruption. This is simply smoke and mirrors.”

“Citizens United distorts the right to speech beyond recognition. Indeed, I am shocked that the Supreme Court did not balance the right to speech with the government’s compelling interest in preserving the fundamental right to vote in elections.”

“I am compelled to say something about corporate ‘personhood.’ While I recognize that this doctrine is firmly entrenched in the law… I find the entire concept offensive. Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.”

Having explained, in the most vivid terms, why Citizens United was decided wrongly, Justice Nelson concludes: “I must return to the central point of this Dissent. Regardless of my disagreement with the views of the Citizens United majority, the fact remains that the Supreme Court has spoken. It has interpreted the protections of the First Amendment vis-à-vis corporate political speech. Agree with its decision or not, Montana’s judiciary and elected officers are bound to accept and enforce the Supreme Court’s ruling….Citizens United is the law of the land, and this Court is duty-bound to follow it.”

Students of the law know that courts are always disagreeing with each other. Like the majority of the Montana Supreme Court, judges seek to “distinguish” the circumstances of one case from the facts in another in order to rule a different way. But rarely do the cases involve issues so fundamentally important to the nation; rarely are the stakes so great and rarely are the differences so stark. My guess is we're going to be seeing more of this gentle judicial civil disobedience as the present US Supreme Court ventures ever farther into the realm of re-writing the Constitution.

All the Montana justices seemed to agree that the United States Supreme Court had made a terrible decision in Citizens United. It’s most vehement critic on the Montana court, certain of that as he was, nevertheless felt bound to obey a higher principle – to obey the law of the land. If only the five justices in Washington had felt the same way.

 

 

Citizens United / Harvey Column / Outrage / Supreme Court - 01/23/2012

Re-Bending the Moral Arc of the Universe

Thanks largely to the Occupy movement, the disparity between the incomes of the wealthiest Americans and everybody else – now a chasm of historic proportions – has exploded onto the national consciousness. Even the Republican presidential candidates have stumbled into the fray; motivated by the fact that the current frontrunner is a financier, they are arguing over what they insist are the differences between “venture” capitalism (good) and “vulture” capitalism (bad).

Debating the role of finance and speculation in our economy in this election year is a bit of good news for beleaguered Americans who have been steadily losing their economic standing for decades and encouraged to offset that long decline through borrowing on credit cards and homes – until this house of cards collapsed in 2008.

This is a discussion that President Obama should embrace for reasons that transcend the usual relentless drive to get re-elected. Obama has frequently recalled Martin Luther King’s dictum that “the arc of the moral universe is long but it bends toward justice.” Economic inequality became as much a priority for King as racial inequality towards the end of his life. As Ron Suskind points out in his masterly assessment of President Obama’s first years in office, Confidence Men, King wrote that, “‘the contemporary tendency in our society is to base our distribution on scarcity, which has vanished, and to compress our abundance into the overfed mouths of the middle and upper classes until they gag with superfluity. If democracy is to have breadth of meaning, it is necessary to adjust this inequity.”

That adjustment is now a matter of great urgency, because the arc of the moral universe has been twisted away from justice.

The middle class is no longer riding the coattails of the rich. To the contrary, the American dream – that through hard work one can hoist oneself up from modest beginnings or even poverty to a better life – has vanished. The Wall Street Journal reports that the economic recovery may take generations. LINK. Saturday’s New York Times contains an interactive feature that illustrates the deepening divide between the wealthy and everyone else. It lets you check out which professions are more likely to usher you into the 1% club, and how much you need to make to qualify as a member of the 1% in various cities throughout the country. ’

Readers' comments to the article are poignant in their reflection of the profound economic struggle so many Americans are facing. Not all those among the 1% are defensive; indeed, many who might be in the 1% themselves point out that when it comes to the distribution of wealth, and the opportunity that wealth provides, it’s really the .01% at the topmost pinnacle vs. the 99.99% – a distinction the data confirms.

Whatever the numerical pivot point, the destruction of the middle class in this country is a stunning transformation that King would have seized upon. As a community organizer, he understood the importance of calling out inequality wherever it is found in order to engage the powerful force that is the American people. Demanding the attention of the affluent, and their intervention, King said, “Injustice anywhere is a threat to justice everywhere.”

Contrary to some pundits and outspoken advocates of the .01%, challenging the increasing distance between the “haves” and the “have nots” – now that the category of “I have because I borrowed to get it” has been foreclosed – isn’t class “warfare.” As the New York Times pointed out: “Class reality has nothing to do with class warfare.”

The super-elites do not want the presidential candidates even to broach the subject of income inequality because they understand, as King knew, that the discussion inevitably will lead to a national demand for action by the 99.99%, which, to this point, is disorganized, fractured and only dimly aware of the strength they might wield if they were united.

Consider this historical example. Back in the mid-1980s, auto insurance rates in California were skyrocketing. Auto insurance companies weren’t just jacking up everyone’s premiums; they were basing rates on where a person lived, rather than their driving safety record. So people who lived in low-income neighborhoods often paid more for the insurance they were required by law to buy – if they could afford it at all. People who couldn’t afford it – lower middle class and the poor – were surcharged with a penalty for not having had prior insurance when they later scraped the money together to buy it. Not surprisingly, there were lots of uninsured motorists on the road, which forced up the price of insurance for those who did buy it. It all came down to one problem: insurance companies were unregulated and free to impose arbitrary prices. But the insurance lobby was able to block any reforms in the state legislature by pitting urban vs. rural drivers, and the middle class against the poor.

California voters, presented with the opportunity, were not so easily manipulated. By directly attacking and then addressing the inequities in the insurance marketplace, Proposition 103 educated and united the constituencies: the 1988 measure mandated an across the board, twenty percent rollback of auto, home and small business insurance premiums. It also ended zip-code based premiums for auto insurance. Everyone saved money; the only losers were the insurance companies. The industry spent an unprecedented $63 million on advertisements scapegoating the urban and, with a thinly veiled racial tinge, the poor. But the strategy didn't work. The voters saw through the industry’s cunning and passed the initiative, with conservative Republicans in Orange County joining Democrats in Los Angeles to provide the margin of victory.

As a candidate in 2008, Obama promised that the presidential election would be meaningful to the vast majority of Americans who had been disenfranchised by the corrupt political system that precipitated the financial collapse. But he failed to wield his victory as a sword on behalf of those Americans. Now he has a chance to win a second chance to do so. He faces a much tougher battle this time around, among other reasons because corporations are far more deeply entrenched in the guts of the democracy, thanks to the U.S. Supreme Court’s decision in Citizens United, which has unleashed the furious, dominating power of corporate money in electoral campaigns.

The nation’s future cannot be dictated by the 1% and their money  – not if the country is to retain the democracy that was bequeathed to us by the Founders. If Obama or some other candidate engages the citizenry in a debate over the foundational issue of economic inequality, and offers a vision of democracy in which regular people are back in charge – starting with a constitutional amendment restoring the primacy of humans over money in the electoral process – he will be able to lay claim to having re-bent the moral arc of the universe traced by King.

Citizens United / Harvey Column / Occupy / Outrage / President Barack Obama / Supreme Court - 01/16/2012

Where’s Our Bailout? (Redux)

Between August 2007 and April 2010, the U.S. Federal Reserve handed out up to $1.2 trillion in public money to banks and other companies in the form of short-term loans to help them cope with cash flow problems, according to a recent report by the Bloomberg news service. In addition to U.S. banks and speculators, big bucks went to financial institutions owned by foreign governments; domestic firms like Ford and G.E. as well as Toyota and Mitsui and a German real estate investment firm.

While American taxpayers kept big businesses all over the planet alive, no such loans are available to taxpayers to cover their own personal cash-flow problems, including not being able to pay their mortgages, monthly bills, put food on their tables or a few holiday presents under the tree.

New figures, ironically also issued by the Federal Reserve, show how much help $1.2 trillion could be – if put in the hands of Americans. According to the Fed, the total amount of all money Americans owed on their credit cards as of last September was $693 billion. All of that could be paid off – in full – leaving another $500 billion, say, to help people avoid foreclosures or give every consumer in the United States a hefty tax cut.

Imagine the “stimulus effect” on our economy of paying off every credit card in the nation.

Although the Fed has portrayed the bailouts as the only way to keep money flowing in the economy, the Money Industry has yet to open its spigot and expand lending. Instead, they’ve used our dollars mostly to inflate CEOs’ executive salaries and pay themselves even more ridiculous bonuses.

Zeroing out America’s credit cards would solve that problem instantly. The credit card companies would get the money, of course, but Americans could start fresh and begin investing in their families, their businesses and their local economies.

Unfortunately, our country’s leadership owes its allegiance to the multi-national mega-corporations that grease the system with billions of dollars in campaign contributions. Wall Street’s “investment” in Washington caused the financial depression we are in today, and its no wonder that Washington’s attention is focused so narrowly on the welfare of the wealthy and large corporations. In fact, with its infamous decision equating corporations to human beings, the United States Supreme Court has turned the corruption of our democracy by money into a principle of our Constitution. Until we change that, Americans will be second class citizens in a country controlled by wealth and power.

 

Citizens United / Foreclosure / Harvey Column / Outrage / Supreme Court / TARP - 01/11/2012

We the Fee

I couldn’t find any comment from the Republican presidential candidates on one of the most compelling financial events of the last week: Verizon’s virtually instant reversal of its $2 fee on people who pay their wireless bills over the phone or online.

Nor apparently did the White House have anything to say, even though the Federal Communication Commission’s announcement that it was “concerned” about the fee no doubt factored into Verizon’s decision. The FCC, once the cell phone industry’s best friend in Washington, D.C., has morphed into something actually looking like a consumer protection agency under Obama. It also killed the AT&T – T-Mobil merger that would have destroyed competition in the wireless marketplace and led to vastly higher prices and much worse service. The President certainly deserves a victory lap – and could use one – but remained incommunicado during his vacation in Hawaii.

Nothing from the Tea Party or Occupy Wall Street either.

Fees have become the bane of the American consumer. Airlines make more money from fees than from air fares. Banks replaced tellers with machines and now force their customers to pay $3-$5 for the privilege of accessing their own money. Hotels apply “resort fees” for using the typically impoverished gym. And then there is the coup de grace: the fee you have to pay for getting a bill in the mail – a favorite of the cell phone and health insurance companies.

Undisclosed, or at best hidden in the fine print, these fees cripple consumers’ ability to compare prices. Which becomes a nightmare if you realize you are paying too much and decide to take your business elsewhere: many of these companies require you to stay with them for two years or pay an early termination fee in the hundreds of dollars.

Verizon’s retreat from the fee was a major victory for consumers, who organized a massive internet/Twitter/Facebook protest worthy of Zuccotti Park or Tahrir Square. In November, Bank of America tried to institute a $5 fee for using a debit card – it too was forced to back down in the face of national outrage.

How then to explain the silence of political candidates and public officials? The simple answer harkens back to the Occupy metaphor. The political class doesn’t sweat the small stuff like a $2 fee – they can afford not to. But most Americans can’t afford to throw away two bucks.

Harvey Column / Occupy / Outrage / President Barack Obama / Tea Party - 01/03/2012

The Right to Remain Silenced

Here’s another stark inequality that has come to characterize our nation: for every 99 Occupy Wall Street protestors who’ve been arrested, about one millionth of one fat cat has been arrested. Okay, I realize you can’t arrest a tiny slice of a fat cat, no matter how fat, so let me put it this way: Over a thousand Americans have been arrested around the country for protesting Wall Street in recent weeks, according to estimates. But after a half hour scouring the web, I can only find a handful of  instances of financiers or speculators being arrested for causing the collapse of our economy back in 2008 – that’s out of the hundreds of thousands who work for the Money Industry. Not one of the titans of Wall Street – the hundred-million-dollar-a-year wizards who were manipulating our economy for their personal pleasure – have been perp-walked into a paddy wagon, much less prosecuted.

The internet’s aflame with this irony, so there’s no point in belaboring it.

More important, but far less noticed, is the nature of the crime for which most of the 99% protestors have been arrested:  exercising what many Americans consider basic First Amendment rights – the freedom of speech and assembly. As we’ve witnessed over the last few weeks, in many places in this country you have no First Amendment right to walk down a street, sleep in a park, enter a public building. This isn’t anything new: under many court rulings interpreting the US Constitution, government can place “reasonable” restrictions on your rights, so as to protect the rights of others not to be disturbed.

That made sense back when “rights” belonged only to human beings.

But we now live in a new day, under a different view of the Constitution, courtesy of five members of the United States Supreme Court. According to their infamous decision in the Citizens United case, corporations have the same First Amendment rights as human beings when it comes to the freedom to express themselves by spending money to buy elections or influence votes.

There’s just one hitch to the Supreme Court’s equation of humans with corporations: when corporations exercise their First Amendment right to spend money, they completely overwhelm the First Amendment rights of humans. Sure, you can exercise your First Amendment right to donate a few bucks to a candidate for public office, or to a ballot initiative. But once a corporation opens its bank vault, your freedom of speech right is obliterated.

It used to be that the Supreme Court upheld laws that put “reasonable” restrictions on corporate spending in politics, under the theory that one person’s exercise of their rights should not disturb another’s. But Citizens United stripped that quaint notion from the law books. Until we amend the Constitution, the fat cats get to make the laws and break the laws. The rest of us have the right to remain silenced.

This travesty of democracy is now laid bare in cities and towns throughout the United States. There’s been plenty of fun poked at the strange hand gestures developed by the Occupy Wall Street supporters to substitute for applause or boos – so as not to disturb the peace of the nearby corporations. Protestors who dare to up the decibel level by using more advanced technology – a megaphone – in a public park in New York City, in the hope they can make themselves heard merely across the street, face arrest. Meanwhile, up in the executive suites, a small number of stupendously wealthy and powerful individuals order billions of dollars worth of lobbyists, lawyers and propaganda pumped into our democracy every year. It’s a deafening and unstoppable inundation… intended to make sure no one can hear what the rest of us have to say.

Citizens United / Harvey Column / Occupy / Outrage / Supreme Court - 10/24/2011

Rise of the Machines

In the Terminator movies, a massive computer network created by the U.S. military known as Skynet suddenly becomes sentient and launches a catastrophic attack on humankind that reduces the planet to rubble. Most of the action in the films takes place before that holocaust, as desperate humans travel back in time hoping to prevent Skynet from being invented in the first place. Technology in that bleak future was no gleaming iPad. It was a mortal enemy.

Unfortunately, there's no unwinding the myriad events of the 1980s and 90s that led to the Wall Street financial implosion in 2008. What's left now is the economic rubble left by the collapse of a massive speculation machine built by Wall Street firms with the connivance of elected officials and regulators.

The high priests and priestesses of the Money Industry were those who could program the computers to predict the market and trade at light speed.  Algorithms were the bible code of Wall Street. Billions were made by these middlemen as finance went viral, growing to a third of the U.S. economy, drawing the best and the brightest into the processing of paper and the manipulation of stocks, commodities, insurance contracts, and later packages of bundles of financial assets including mortgages, and then insurance contracts on those derivatives, as they are known.

Finally even the high priests and priestesses – never mind the regulators – no longer understood that the machinery was not doing, nor what any of the newly invented virtual assets were worth. Trading moved from the noisy floors of exchanges where traders frenetically bought and sold to super-fast processors operating silently on proprietary networks.

In retrospect, May 10, 2010 may come to be remembered as the day we had inkling that the machines were taking over. Suddenly stocks started falling in value and no one could figure out why. Within a matter of minutes on that afternoon, the Dow dropped 700 points. Then it miraculously recovered. No one really knows for sure, but most observers suspect that the so called "flash crash" was the result of high speed computers programmed to automatically react to unspecified market indicators. Today's New York Times reports that the regulators are fearful of more computer-driven crashes - and so are investors.

Another date to remember is June 1, 2009. That day, Air France flight 447, a highly computerized fly by wire Airbus A330 airplane, fell 35,000 feet into the Atlantic Ocean off South America. All 228 on board died.

The cause remained a mystery until the black box flight recorder was recovered from the deeps earlier this year. Investigators determined that the pilots did exactly the opposite of what they were trained to do, and based on faulty information from the airplane's computer system literally flew the plane into the water.

Science fiction has become fact:  we are gradually, almost invisibly, forfeiting our judgment and our human attributes to technologies we do not fully understand and as yet do not fully control. This surrender pervades the culture: Corporations are persons for purposes of permitting them to exercise and ultimately swamp our First Amendment rights, the US Supreme Court has decreed. Restoring the primacy of human beings in the political process is imperative.

Like the Constitution, technology should serve us, not the other way around. An astounding outpouring of grief and affection for Steve Jobs this week has been followed by well-deserved odes to his creativity and acumen.  Jobs democratized computers, putting them in the hands of the masses. The operative distinction is that apple products gave consumers more control over their assets – music, video, photos. Every one of Jobs' creations came with an on-off switch. One wonders what the man had to say about technology run amok, used to gild the lives of a few at the expense of many more.

Citizens United / Financial Crisis / Harvey Column - 10/10/2011

Steve Jobs and the Democratization of Technology

I am old enough to remember when a computer was something owned by a corporation or a university and filled a huge, specially constructed room. I did my college thesis using one of those “mainframes” to tabulate punch cards that contained data, which I inputted through a giant typewriter.

Then came the Apple II, a 1 MHz computer that had 4k of RAM, recorded data onto an audiocassette tape – later replaced by a 51/4 inch floppy disk drive. When it went on sale in 1977, it cost $1298.  With some trepidation about potentially undermining its mainframe sales to big business, IBM hurried to catch up with Apple, introducing its first personal computer in 1981. The Apple II was followed by the Macintosh in 1984. Quickly the personal computer found its way into the homes and offices of hundreds of millions of Americans, and later, through the iPhone, into their pockets.

Much will be said over the next few days about how Steve Jobs revolutionized the entertainment business. And he did, indeed.

But consider the impact his vision of a personal computer has made in placing the power of technology into the hands of the People. I wrote Proposition 103 on a Mac. I printed out campaign leaflets out an Apple LaserWriter, a $4000 printer that let you change the type style and made what I wrote look like it was printed by a professional press.

Today, as Americans assemble to protest our economic plight and the politicians’ fealty to powerful corporate interests, they access unfiltered information and communicate freely with each other through the internet and social networks that could not exist but for the democratization of computer technology pioneered by Steve Jobs.

Harvey Column / Uncategorized - 10/05/2011

Occupy Washington

Emboldened by the U.S. Supreme Court, big corporations have been busy exercising their newly granted First Amendment rights. Now a growing number of Americans are exercising theirs, assembling in cities throughout the nation to protest the bailouts, budget cuts and other artifacts of the Wall Street financial debacle three years ago this month.

Americans are notoriously slow to rouse, even when they are hurting. And we are certainly hurting: nine percent of Americans are “officially” unemployed; count those who have given up looking or have taken jobs far beneath their skill and ability, and one in five are struggling to stay afloat. Those fortunate enough to hang on to their jobs have to worry about the cost of health insurance, gas and groceries. 81% of Americans say the country is on the wrong track. The other twenty percent are presumably among those who lay claim to most of the wealth of our country.

Eighteen days ago, a few hundred citizens rallied in New York City, inspired by a call to “Occupy Wall Street” proposed by a magazine article. At first, the protestors – largely young people - got a snide blow-off from the New York Times. But thanks in part to some gratuitous pepper spray from the police, media coverage grew along with the protestors’ numbers. Last weekend, thousands marched in New York, while citizens in Los Angeles, Chicago, St. Louis, Philadelphia, Denver, Madison, Atlanta and Boston have turned out. The list is growing. Participants defy categorization or caricature: they come from all walks of life, all age groups, all ideologies. All share the view that the country has run off the rails.

Europeans have been protesting for months, their economies suffering severe collateral damage from the economic contagion unleashed by the Great Recession here at home. In Iran, Egypt and other Middle East nations, anger at poverty and political oppression boiled over earlier this year; dictators were overthrown.

But until now, most Americans have occupied nothing more than their living rooms – odd, since America’s own citizen revolution has been the beacon of democracy for the rest of the world. Many no doubt are simply too busy and too tired: two wage earner families, with some parents holding two jobs each. Some have lost so much confidence in government and in themselves that their sense of powerlessness has led to personal paralysis. No one can challenge the decision to stay home.

But the choice to stand in protest is the one singular act of political power left to the silent majority of the American people. A radical United States Supreme Court has concluded that corporate donations to politicians – a.k.a. bribery – are a form of “expression” that is protected by the First Amendment. The multinational conglomerates have used their vast wealth to seize control of our country. This has to change, and it has to be done by an amendment to the U.S. Constitution specifying that the right to support candidates and causes in elections belongs only to human beings - you can start the process right here. In the meantime, powerful as they are, corporations cannot march down our streets. Only human beings can do that.

Inevitably, the defenders of the intolerable status quo try to brand protests and protestors as insubordinate. They know that a citizenry, aroused, is a fearsome force. In recent days, as more Americans stand up to denounce the virulently destructive disparity in incomes and opportunities between the corporate elites and everyone else, the corporate hacks on Capitol Hill and the talk radio commentariat indicted the discussion as “class warfare.” Apparently that’s impermissible in our democracy because it challenges the core concept that “we the people” rule, and “we” is supposed to mean all of us. That’s precisely what’s at stake, of course, and the people demanding that it be addressed are nothing short of patriots.

Warren Buffet, the world’s second richest person according to Forbes, told CNN last week: “Actually, there’s been class warfare going on for the last 20 years, and my class has won.”

As we reported back in 2009, Wall Street has occupied Washington for too long. Now it’s up to us to take it back.

 

Harvey Column - 10/04/2011