“Fascism should more properly be called corporatism because it is the merger of state and corporate power.” – Benito Mussolini.
In the past week many people were outraged by the Supreme Court’s establishment of a corporate theocracy in the Hobby Lobby case. As noxious as that ruling was, it pales in comparison to other recent decisions by that Court. The legal reasoning used in such decisions has established a corporate rule of law in the United States; and while the law has always been biased to power, now it is owned by it.
In the past decade the Supreme Court of the United States has engaged in a strange kind of judicial activism. The Court has decided that corporations have more rights than the citizens of this constitutional republic. In a series of decisions which have ignored precedent and established law the Supreme Court has:
- Protected corporations from liability when they break the law;
- Protected corporations from environmental and antitrust regulations;
- Allowed corporations to discriminate on the basis of age and gender; and,
- Created an environment in which corporate interests can buy elected office.
In an Orwellian misuse of law and logic the Supreme Court has moved the United States away from partial democratic rule to governance by corporate interests. Of course, the most egregious rulings came in Citizens United v. FEC and Davis v. FEC, cases in which the Court simply put the government on the auction block. In Citizens United the Court ignored previous rulings and legal precedent to eviscerate what had been the rule of law in allowing corporations to buy elections. The Court ruled that corporate interests could use unlimited amounts of money from their general funds to influence federal elections. In fact, for the first time in American history the court decided that corporations have the same rights as citizens in financing electoral campaigns. In Davis the Court actually restricted election spending by ruling that self-funded candidates could spend as much as they wished on elections while other candidates had to abide by spending limits set in the law. In other words if you are rich, the election laws do not apply to you.
Not being satisfied with perverting the electoral process, the Supreme Court has decided that corporations should be shielded from liability when they produce dangerous products or engage in extreme environmental carnage. In Exxon Shipping v. Baker the Court ruled that Exxon was not responsible for the full legal liability incurred in the Exxon-Valdez oil spill. The Exxon-Valdez disaster resulted in massive environmental damage, destroyed communities, and left 30,000 people without their livelihoods. The Court ruled that Exxon was responsible for only 10% of the economic and environmental damage done to these people and their communities. In Riegel v. Medtronic, Inc. the Court ruled that a consumer who had been severely injured by a product the manufacturer knew was dangerous could not sue for damages because the product had initially been approved by regulators. So, if you are severely injured in a car crashes resulting from faulty engineering and production (maybe something produced by GM?) you have no recourse if underfunded government regulators did not prevent them from manufacturing the car.
But why stop there, if the Court is going to create a corporate dictatorship let’s go all the way. In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and Rapanos v. United States, the Court simply removed a huge number of waterways from protection under the Clean Water Act opening the door for corporations to pollute the drinking water of 117 million Americans. These two decisions had the net effect of killing 1,500 major pollution investigations and have reduced EPA orders against polluters by 50%.
Just in case pollution and unsafe products are insufficient to enhance corporate profits the Court has also weakened the two pillars of the progressive movement – the Sherman and Clayton Antitrust acts. In Leegin Creative Leather Products, Inc. v. PSKS, Inc. the Court overturned a century of law and legal precedent by deciding that corporations could, in fact, engage in price-fixing. The net result of this decision will be $300 billion dollars in increased costs to consumers on commonly purchased items.
And finally, it was not enough for the Court to force privately held religious beliefs of corporate executives on workers and consumers; but this Court decided to go further in upholding corporate discrimination on the basis of gender and age. In Ledbetter v. Goodyear, the Court decided that a woman who had been underpaid in relation to male co-workers in the same job over a 20-year period had no right to seek equal pay. And in Gross v. FBL Financial Services, the Court simply ignored the legal precedents for proving age discrimination. The ruling makes it virtually impossible for plaintiffs in age discrimination lawsuits to win their cases when facing corporate defendants.
So, we are nation of corporate laws. Corporations have more rights and fewer responsibilities than average citizens. Corporations can’t be jailed, executed, or now even successfully sued when they do immense and pervasive damage. We have come full circle from the reforms of the progressive era which sought to reign in unlimited corporate power to a nation in which the law defaults to corporate power. Justices Thomas, Scalia, Roberts, Alito and Kennedy would make Mussolini and his fellow fascists proud. In the United States, as in Germany and Italy before, the road to fascism will be paved with law.
Professor, School of Justice Studies
Eastern Kentucky University