The United States Constitution makes it clear that in order to impeach a Supreme Court Justice one must establish that that Justice has engaged in "high crimes and misdemeanors." Is it a "high crime and misdemeanor" to sell our democracy to the highest bidder? According to Black's Law Dictionary, a "high crime" is "a crime that is offensive to public morality, though not necessarily a felony." With its recent decision in Citizens United v. FEC Justices Kennedy, Roberts, Scalia, Alito and Thomas have engaged in what I believe is an offense to public morality -- opening our democratic elections to unfettered corporate influence -- a high crime suitable for impeachment.
On Thursday, Jan. 21, in a 5--4 decision, the Supreme Court ruled that corporations are the same as human beings when it comes to free speech and campaign expenditures. In doing so, the Court overruled two recent precedents -- Austin v. Michigan Chamber of Commerce (1990), and McConnell v. Federal Election Commission (2003). But the prohibition against corporations using their billions to influence political campaigns reaches back to 1907 when president Roosevelt persuaded congress to implement restrictions on corporate influence. Roosevelt declared, "All contributions by corporations to any political committee or for any political purpose should be forbidden by law."
The Supreme Court's ruling signifies a vast and cynical departure from what has been century-old settled First Amendment law. As the Constitution, and one hundred years of caselaw makes very clear, speech rights only apply to human beings. Besides, the Founders were well aware of the distinction between a human being and a corporation (the word "corporation" doesn't appear in the Constitution; a corporation is a figment of law established by Congress and states' General Assemblies). A corporation, unlike a human being, has only privileges, not rights as established by the Constitution.
Now, corporations can directly, and without limit, expend their vast profits on political campaigns. While they cannot give their funds directly to a candidate, they can pay for political campaigns ads. The majority's ruling is judicial activism in the extreme.
The obvious question begging a response is, without the millions of dollars that are available to corporations, how will citizens compete for a candidate's attention? Who will the winning candidate be beholden to? The Supreme Court has virtually guaranteed that the voting public, already disillusioned by politics, will be pushed further to the back of the line.
Perhaps most frightening in this decision is that there appears to be no obstacles to corporate contributions coming from foreign corporations. During oral argument in Citizens United v. FEC it was Justice Ruth Bader-Ginsberg who raised the specter of "mega-corporations owned by foreign governments" being able to influence U.S. elections. It is conceivable that foreign corporations with an interest in U.S. political decisions regarding environmental law, trade, and the like, will legally be able to aggressively campaign in favor of a candidate beholding to its position.
With the Court's decision in Citizens United v. FEC the notion of a nation "of the people, by the people, and for the people" is only so much platitude. But it needn't remain that way. Already there are proposals to establish a new Constitutional Amendment, the 28th, that would say something like, "No corporation shall be considered to be a person who is permitted to raise or spend money on federal, state, or local elections of any kind" (Graves, Center for Media Democracy). The Move To Amend campaign proposes that the 28th Amendment would: 1) Firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights; 2) Guarantee the right to vote and to participate, and to have our votes and participation count; and 3) Protect local communities, their economies, and democracies against illegitimate "pre--emption" actions by global, national and state governments."
Finally, a statutory provision could be created to require that corporate shareholders first approve of decisions to fund support for political candidates.
Corporations cannot vote; money is not speech. By law, for-profit corporations place profit maximization above any humanistic commitment to advance the body politic. If the ideologically motivated Supreme Court majority in Citizens United v. FEC would rather place corporate interests above those of the people of the United States, and in doing so create a fundamental threat to the democratic process, then we need to follow Thomas Jefferson's advice, first articulated in 1816, "to crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and to bid defiance to the laws of the country," as well as Justices Kennedy, Roberts, Scalia, Alito, and Thomas -- those on the Court who advocate on behalf of corporations by advancing a perverted and ahistorical interpretation of speech. Their actions are, by definition, offensive to public morality and as such qualify as a high crime for which they are worthy of impeachment.
All that is at stake here is whatever is left of a beautiful idea that has never realized its full potential. The Supreme Court's ideologically motivated decision to provide corporations with the same privileges as a voting citizen is a cynical reminder of precisely who rules America.
Robert Schehr is a Flagstaff resident and professor of Criminology and Criminal Justice at Northern Arizona University.