Why It’s Important to Defend Representative Rashida Tlaib Against Censure, Whether or Not We Agree With Her

True to its increasingly repressive and authoritarian agenda, the House GOP Conference moved this week to censure my colleague Congresswoman Rashida Tlaib for political comments she made that were clearly protected under the First Amendment and the Speech or Debate Clause of the Constitution. Although I told Representative Tlaib I strongly disagreed with her benign interpretation of the offending phrase (“from the river to the sea”), I rose on the House floor nonetheless to defend her as a Member against the Republicans’ outrageous misuse of the House disciplinary process to punish her political expression.

I noted that, in the history of the U.S. House of Representatives, the overwhelming number of censures have been for conduct: taking bribes, embezzling funds, assaulting other Members, engaging in mail fraud, and having sex with pages. The only kinds of speech that have ever been punished have been true threats of violence towards other Members, fighting words on the floor towards other Members, and incitement to insurrection and secession—none of which are implicated here and none of which are protected by the First Amendment, according to the Supreme Court. I warned our GOP colleagues that politicizing and weaponizing the House’s censure mechanism in this shocking way will raise profound problems for their own Members, starting with the new Speaker of the House Mike Johnson, and all the others who traffic in lies, myths and right-wing ideological fanaticism.

The House voted 234-188 to censure Rep. Tlaib, with 4 Republicans voting not to censure her and 22 Democrats joining the Republicans’ exercise in thought control.

A formatted version of those remarks follows (the original written text as opposed to the spoken version).

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May 2026 Issue

Rep. Samuel F. Bellman and the Rights of the Minority

I have images of three politicians displayed in my office: Abraham Lincoln; Robert F. Kennedy; and Samuel F. Bellman who was the first Jewish person ever elected to the Minnesota legislature, a great champion of the Constitution, civil rights and civil liberties, and human rights, and of the creation of Israel, the Jewish Democratic State, in 1948.

And he was my grandfather.

He was elected at a time of terrible antisemitism, not unlike today. Minneapolis was called “the antisemitism capital of America” and my Grandpa Sam told me a story I’ll never forget.

The Democratic-Farmer-Labor (DFL) and Republican Caucuses both had their annual retreats at a country club that did not allow Jews or blacks to enter. My grandfather complained privately with the Speaker that he would not be able to go, and the Speaker apologized but said this was the tradition.

So my grandfather, the only Jewish person in the Chamber, spoke on the floor about antisemitism—and he was booed and jeered at, and Members left as he tried to speak.

When the Minority Leader asked me to manage our time today, I thought about my grandfather and how he must have felt on that day.

So I’m here not in spite of the fact that I am a Jewish American who supports the Constitution and the Jewish Democratic State and hates the antisemitic tyrants and terrorists of the world, from Vladimir Putin in Russia and Mohammed Bin Salman in Saudi Arabia to Hezbollah and Hamas; I am here because of these things and because of everything I believe in and stand for.

At this moment when democracy is under siege all over the world, America must stand tall for the Constitution. But this Resolution is about one thing and one thing only: the punishment of speech.

The Apple of Constitutional Freedom

We have the chance to show the world what the American Constitution means and how we hold fast to our core principles even when we are drawn away from them by our passions and our righteous anger.

The Constitution is “the Supreme Law of the land,” and the very heart of it is in our First Amendment, which protects every citizen’s freedom of speech and says Congress shall make no law abridging it.

The freedom to speak includes the freedom to disagree, the right to think radically differently from the majority about important things, or else it is no freedom at all. It’s easy to defend free speech for people when you agree with them; the test for each Member is whether you can defend free speech for people when you most fundamentally and vehemently disagree with them.

The First Amendment is like an apple. Everybody wants to take just one bite out of it. Someone wants to punish left-wing speech, someone right-wing speech, someone sexist speech, someone radical feminist speech, homophobic speech or pro-LGBTQ speech, anti-war speech, pro-war speech, religious speech, sacrilegious speech and everybody wants a bite of the apple, but then at the end of the day, once everyone has had his or her bite, the whole apple is gone.

There’s nothing left. If you want to save the apple, you have to learn to tolerate not just the speech you love the most, which is easy, but the speech you hate the most.

Like the First Amendment, the Speech or Debate Clause also embodies this central value in the legislative process. It states that Members of Congress “shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.” (emphasis added)

The Speech and Debate Clauses in the thirteen original colonies were the basis for the freedom of speech later established for all citizens; indeed, of the original 13, only Pennsylvania’s Constitution protected “freedom of speech” for anyone but legislators. In other words, we had better take freedom of speech seriously for legislators because if we don’t protect our own free speech, how can we protect freedom of speech for the people we represent?

We Censure Members for their Conduct, Not their Speech

In the two-and-a-half century history of our Chamber, Members have been overwhelmingly censured for their actions, not for their speech. Actions like:

• Participating in the violent assault against Charles Sumner. Assaulting Representative Josiah Grinnell of Iowa with a cane. Selling military academy appointments. Taking bribes.
• Selling $33 million of stock in the Credit Mobilier scandal to fellow Members at an undervalued price to bribe them.
• Engaging in mail fraud and payroll fraud.
• Improper use of campaign funds and Congressional funds.
• Engaging in sexual misconduct with a House page.

Do you see the difference? Not what they said, what they did.

I can find only three categories of cases where speech is the sum and substance of the charge—and they are all exceptions that have been ratified by the Supreme Court.

One is where the speech makes violent threats against other Members of the body. As the Supreme Court found as recently as April, in Counterman v. Colorado, “true threats” of violence are never protected under the First Amendment.

A second category is essentially fighting words, the use of unparliamentary or aggressively insulting language on the House floor that constitutes a direct affront to another Member.

The Supreme Court has also said fighting words are not protected.

The final is speech advocating or promoting treason, Confederate secession or insurrection, all of which arguably lie outside of the First Amendment because of numerous provisions opposing and condemning insurrection.

That’s it: violent threats against another Member, fighting words on the floor, speech inciting insurrection or secession.

The Republicans Want to Use the Disciplinary Process to Punish Rep. Tlaib for Her Speech and Ideas

But the Resolution offered against the gentlewoman from Michigan is all about censuring her for her unpopular political speech and literally nothing else. No actions, no conduct is being punished.

The entire censure motion is about her speech and how much we hate it and how wrong we think it is. All of that is fine for all of us to express individually—in newspapers and the media, on the floor and in committee, in social media and in conversation—and I have told Ms. Tlaib that the phrase “from the river to the sea” is abhorrent to me and cannot be salvaged politically, at least to my taste, even with her published explanation of what she means by it, which is certainly very different from the way Hamas uses it.

But, in any event, I would never think of disciplining her or punishing her because we disagree about that and have a dramatic difference in our political views.

We Don’t Punish People for their Political Ideas in America

But the Resolution proposes to condemn her for quoting this objectionable phrase in her video, which is indisputably protected speech under the First Amendment. Unlike the gentleman from New York, Mr. Santos, whose proposed expulsion by Members of the Majority was rejected by a commanding bipartisan majority because he has not yet been convicted of either the criminal or ethics charges against him, Ms. Tlaib has been criminally charged with nothing and has been civilly sued for nothing and has no ethics charges outstanding before the Ethics Committee.

It’s easy to see why. She can’t face criminal punishment or civil liability for her alleged speech offenses because in the United States of America we don’t punish people for their political ideas, no matter how wrong and offensive other people think they are. Congresswoman Tlaib won reelection with 71 percent of the vote in Michigan’s 12th district and if anyone is going to punish her for her political ideas or manner of expression, it must be the people of her own district, who sent her here to represent them.

Mr. Speaker, the disciplinary process should never be used to punish the political speech or viewpoints of a Member of this Chamber just because the majority disagrees. If you disagree, why don’t you get up and explain why your ideas are better than hers or where you think she has gone wrong in her values or analysis or explanation? Don’t punish her for not thinking the way you do.

The punishment of dissenting political viewpoints will mean that Members will be censured just for being in the minority rather than actually doing something wrong. And that will come to stifle significant dialogue and haunt all of us in our work.

For example, there’s another censure motion being proposed now against the Representative from Florida who compared “Palestinian civilians” to “Nazi civilians” and stated that “there are very few innocent Palestinian citizens.”

The Resolution stated that his outrageous conflation of innocent Palestinian civilians with Hamas terrorists is “false, misleading, dehumanizing, dangerous and unbecoming of a Member of Congress.”

This motion is the mirror image of the complaint against the Gentlewoman from Michigan, although in this case, significantly, the alleged offense consisted of statements that the Member himself made in his own words in the House.

But, in any event, both Members are being charged with what are inescapably speech offenses and thought crimes. And yet the case against the Representative from Florida has been held while we have moved to a vote against Ms. Tlaib. Why is that?

Solely because the Gentleman’s party is in the majority. But a disciplinary process which operates on the basis of raw partisan voting power has no integrity or legitimacy in the eyes of the public.

The minute we start punishing the content or viewpoint of Members’ political speech, the process inescapably loses its legitimacy and becomes just a partisan weapon.

Will Democrats Have to Censure the Extremist Political Ideas of MAGA?

For example, the Speaker of the House has taken positions in the past arguing that sex between consenting gay adults should be a crime, that the Supreme Court was wrong to strike down sodomy laws in Lawrence v. Texas and wrong to give gay people the right to marry in Obergefell, a right he said that is “the dark harbinger of chaos and sexual anarchy that could doom even the strongest Republic.” He even supported the idea that gay people could be cured of their malady with so-called “conversion therapy,” which has been discredited by science.

Now, the vast majority of Americans reject these positions as extreme in opinion polls, and believe that all citizens have the freedom to pursue their own love lives and to marry someone they love. If the House majority changes hands, should we censure the former Speaker for his constitutional apostasy and thought crimes against the rights of millions of Americans?

I sure hope not, because the Gentleman from Louisiana is absolutely entitled to his extreme political and religious views no matter how outside the constitutional and American mainstream they are and no matter how much I reject them. Under the First Amendment, extremism is in the eye of the beholder. But how will we resist the temptation to punish the former Speaker in the future if we set a precedent today that Members can be censured and canceled simply for their political heresies in the eyes of the majority?

If we say that the gentlelady can be punished because her views of history are wrong, can we then punish Members of this body who refused to vote to take down in our halls statues of Members of Congress from the 19th century who joined the Confederacy and committed treason against the Union, people like John Breckenridge, a former Vice President and U.S. Senator who was expelled from the Senate after he defected to the Confederacy?

Should we use the disciplinary process to impose historical orthodoxy? If anything, there’s a better case for punishing the 120 Members of the House who voted against taking down statues of Confederate traitors because multiple provisions of the Constitution explicitly forbid and punish participation in insurrection. Do Members who voted that way want to risk being censured by establishing that divergent minority views on American history are a legitimate matter of institutional discipline?

What about Members who defended conspiracy theorist Alex Jones and stated that the Sandy Hook and Parkland mass murders of dozens of schoolchildren were “staged” by Hollywood to generate support for gun safety measures?

That’s not even a matter of opinion but adjudicated positive fact, and still the Constitution protects your right to be wrong about facts unless you’re deliberately defrauding or cheating someone out of something, like their money or campaign contributions.

What about all of those Members, including the Chair of the Judiciary Committee, who follow Donald Trump in advancing the Big Lie that he actually won the 2020 election? Should we convert the 60 federal and state court decisions rejecting claims of election fraud and corruption, decisions that the Supreme Court never changed in any way, into a mass disciplinary offensive? Should we convert indisputable historical truth into discipline and punishment of dissenters and heretics?

What about the 11 Members of this body who lost the 405-11 vote in 2019 recognizing that the mass killing of Armenians by Ottoman Turks during World War I was a genocide?

Does their denial of the genocidal character of the deaths of more than one million Armenians qualify them for institutional punishment? Can we convert differing interpretations of history into the basis for legislative punishment?

The First Amendment Protects Free Speech About Domestic and Foreign Policy

Perhaps you say that political dissent should be uniquely punishable when it comes to foreign policy. But the First Amendment does not distinguish between speech having domestic policy or foreign policy content. All of it is protected. If not, every Member of this body who has voted against aid to Ukraine and praises Vladimir Putin for his “genius” and “savvy,” as former president Donald Trump did, or says “Putin is not our enemy,” as several have, could be censured for it.

There were 50 Members who voted against our entrance into World War I. Maybe they were right, maybe they were wrong, but surely, they shouldn’t be censured for it.

The Congresswoman from California, Ms. Lee, was the only Member [of] the House to vote against the open-ended authorization of use of force following 9/11, which led to our longest war in Afghanistan. Although she was vilified at the time for her vote, in the wake of 20 years of war in Afghanistan her vote today is seen as visionary by many people. Should she have been arraigned on the floor of the House of Representatives and censured for her unorthodox ideas about the dangers of war?

The Meaning of Discipline and the Meaning of Freedom

This Resolution not only degrades our Constitution; it cheapens the meaning of discipline in this body for people who actually commit wrongful actions, like bribery, fraud, violent assault and so on.

When people are punished for their political ideas and expression, they will wear it as a badge of honor; they will fundraise on it, as several have done in the past, raising millions of dollars from an outraged public; and they will join the public in mocking the speech censors of Congress.

A secure constitutional Republic which actively protects the freedom of dissenting speech to allow for serious debate shows its strength—not its weakness. As Thomas Jefferson put it, “If there be any among us who would wish to dissolve this Union or to change its republican form let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”

Now is a moment when we will get to see who in the House of Representatives believes in the freedom of speech, even the speech they hate, versus those who want to impose a political straitjacket of cancel culture on America and Congress.

“They control the people through the people’s own money.” — Louis D. Brandeis, Other People’s Money and How the Bankers Use It (1914)

Like tens of millions of baby boomers, I have a retirement fund, and like over 4 million of us, I am building my nest egg with the venerable Teachers Insurance and Annuity Association of America–College Retirement Equities Fund. Heeding the TIAA-CREF newsletter’s recommendation to “diversify” my holdings, I have dutifully directed my savings into mutual funds, which invest that money with large and medium-size corporations spread across the economy.

Although I have contributed on a monthly basis for twenty-five years, it never occurred to me to find out which corporations I have an investment in. Then, in September, the US Senate failed in a party-line vote to advance a proposed constitutional amendment reversing the Supreme Court’s disastrous Citizens United decision, which gives business corporations unlimited political-spending rights. Corporate cash in campaigns is here to stay, I realized—so I had better find out where my money’s going. What if chunks of my retirement savings are being turned into “dark money” and Super PAC contributions on behalf of candidates I would never dream of voting for, much less sharing my retirement savings with?

Lucky for me, in September a freak technical error illuminated one little eddy of corporate cash in the deep, swirling currents of political dark money: the Republican Governors Association accidentally revealed the names of dozens of “corporate members” on the Republican Governors Public Policy Committee, which The New York Times described as a “secretive 501(c)(4)” that is not obligated to disclose either its receipts or its expenditures. The leak revealed that the association met with top corporate donors at the Omni La Costa Resort and Spa in Carlsbad, California, where attendees talked politics while enjoying a “lush atmosphere” that featured the “most storied” golf courses in California and “spa sessions that soothe stress and revitalize the spirit.”

The twenty-two corporations that gave the Republican Governors Public Policy Committee $250,000 or more were awarded the title of “statesmen.” This group included Aetna, Coca-Cola, ExxonMobil, Microsoft, Motorola, Pfizer, Pike Electric, Range Resources, Reynolds American, Sanofi, United Health Group, USAA, Walmart, WellCare Health Plans and WellPoint.

Another thirty-eight corporations chipped in $100,000, which earned them “cabinet” status. This group included Aflac, Allegiant Air, Allergan, Apollo Group, Babcock & Wilcox, Citigroup, Comcast, Duke Energy, Express Scripts, Gtech, Healthways, Hewlett-Packard, Johnson Controls, Marathon Oil, Maximus, Novartis Pharmaceuticals, Shell Oil, US Cellular, Verizon and Walgreens.

Thirty-nine corporations contributed a modest $50,000 to become members of the “board,” among them 3M, Accenture, Astellas Pharma, Best Buy, Bristol-Myers Squibb, Cisco, Diageo, General Motors, Target, Teva Pharmaceuticals, TransCanada, Union Pacific and Unisys.

* * *

As it turns out, when I examine the holdings of my TIAA-CREF mutual funds, I discover that I am invested in every single one of the generous and politically active corporations listed above. This means I am underwriting a corporate consortium that backs Republican gubernatorial campaigns across the United States. Along with millions of other unwitting donors—Democrats, Republicans, independents and people who hate all politicians—I helped bankroll the 2014 victories of twenty-four Republican governors, including:

§  Kansas Governor Sam Brownback, the anti-choice hero who has made it easier to carry guns in public buildings and slashed taxes to the point that his state is running unmanageable deficits;

§  Maine Governor Paul LePage, the Tea Party favorite who called the Internal Revenue Service the “new Gestapo,” wants to weaken his state’s child-labor laws, and opposes marriage equality and the right to choose; and

§  Wisconsin Governor Scott Walker, the union-busting, public-service-privatizing, pro-life and pro-death-penalty conservative, who is currently exploring his presidential prospects.

If your retirement money is in a mutual fund, you too probably own stock in one or more of the corporate funders of the Republican Governors Public Policy Committee. Moreover, this systematic mobilization of corporate dollars for right-wing politics is no aberration. The corporations that my mutual funds are invested in, including Merck, Dow Chemical and Microsoft, have bankrolled many other conservative entities driving America to the right—for example, the US Chamber of Commerce, which spends more than 90 percent of its campaign money to elect candidates who reject the scientific consensus on climate change, according to the American Sustainable Business Council; or the well-oiled Republican State Leadership Committee, whose Redistricting Majority Project (REDMAP, for short) has specialized in maximizing GOP-held House and legislative seats in each state by packing African-American and Latino voters into as few districts as possible. In sum, if you’re lucky enough to have a retirement or pension plan, you are almost certainly contributing to America’s right-wing political apparatus.

Now, I hasten to concede that the Democratic Governors Association assiduously recruits corporate money too, and that the whole Democratic galaxy aspires to catch up with the Republicans in terms of corporate fundraising. This gives me no comfort. As an investor, I want none of my money siphoned off for political contributions—to anybody. If I wish to support a candidate, I can write a check of my own; nor does it reduce my outrage over being conscripted to support Tea Party candidates to learn that Republicans saving for their golden years are forced to subsidize spending for Democratic candidates whose politics they abhor. Moreover, it does not soothe me to be told that some big corporations have a “bipartisan” agenda, which simply means they want to buy both parties.

* * *

Forcing people to underwrite political candidates is outrageous in both moral and constitutional terms, a point well established when it comes to unions. The Supreme Court held, in Abood v. Detroit Board of Education (1977) and Communications Workers of America v. Beck (1988), that employees who disagree with their union’s campaign spending have a First Amendment right to a pro-rata rebate of that portion of their fees spent on the offending activities. But corporate shareholders—a vast class that includes millions of union members—don’t even have the right to be apprised of company political expenditures, much less to demand a rebate when they oppose them.

Although Citizens United toppled decades of campaign-finance law in order to launch the new age of CEOs spending corporate-treasury money in federal elections, the decision also makes clear that investors don’t have to put up with it. Justice Anthony Kennedy’s majority opinion is based on the idea that, because corporations are just “associations of citizens,” they are expressing the views of the shareholders when CEOs finance political campaigns. Thus his opinion directly invites the creation of a procedural solution. Kennedy writes that if shareholders object to political spending, they can use “the procedures of corporate democracy” to address it. This will be simple, he predicted, because all political spending can be disclosed online:

With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are “in the pocket” of so-called moneyed interests.

As promising as this all sounds, it is not even close to reality. With hundreds of millions of dollars in dark money running wild today, and without any corporate disclosure rules in place, the notion that shareholders can reverse political spending “through the procedures of corporate democracy” is a joke. Knowledge of a company’s political spending is necessary for shareholders to control it, but no government entity has done anything to require companies to disclose campaign spending to shareholders or the public. A deadlocked Congress has failed to pass the Disclose Act, and the Securities and Exchange Commission has blithely ignored more than 1 million regulatory comments from people demanding the mandatory disclosure of political spending by publicly traded corporations.

* * *

Given the standoff in Washington, the state governments that register and regulate corporations must take the lead in pulling back the curtains to stop the plunder of shareholders. As a Maryland state senator, I am introducing “Shareholders United” legislation that will require corporate managers who wish to engage in political activity to disclose all political contributions and expenditures by posting them on company websites within forty-eight hours, and to confirm that such partisan spending has been authorized in advance by shareholders owning a majority interest in the company. Under this plan, companies can seek general authorization for their political budgets on an annual basis, as is the case under a parallel law in the United Kingdom. So far, I have heard from more than two dozen state legislators across the country interested in introducing similar legislation.

Some people fear that shareholders would simply be trained over time to ratify whatever political budget is offered by management, but I have my doubts about that. In any event, note that a corporation’s ownership structure may make it impossible for a majority of its shareholders to approve political spending. This will be the case with many publicly traded companies. Around 70 percent of the shares of the top 1,000 corporations in the United States are owned by massive institutional investors, chiefly federal, state, and local retirement and pension funds, as well as mutual funds, universities, foundations and charities. Most of these multibillion-dollar funds exist solely for investment purposes and are prevented from engaging in partisan political activity by their fiduciary and contractual responsibilities, their tax status, or state and federal law. For example, if most of a company’s shares were owned by TIAA-CREF, Fidelity, the California Public Employees’ Retirement System (CalPERS), Stanford University and the Catholic Church, that company could not assemble a shareholder majority to approve the use of corporate-treasury funds to elect Jeb Bush or Hillary Clinton.

It makes sense that these kinds of institutions cannot endorse campaign spending by the business corporations they’re invested in: the actual “beneficial owners” of the shares—natural persons like you and me—have no idea that the votes are even taking place, much less a voice in the process. In the case of TIAA-CREF or Fidelity, how could the managers claim to be representing the political views of millions of individual investors? How could fund managers for the Catholic Church or Harvard University vote to approve partisan expenditures consistent with their 501(c)(3) status, which forbids political activity?

A 2012 poll showed that 80 percent of Americans favor legislation to condition corporate political spending on shareholder assent. Even several CEOs I have spoken with about this problem welcome a shareholder rule. They know that the big pools of cash in corporate treasuries make an irresistible target for politicians, who understand that executives have little ability and no incentive to say no when those politicians come calling for a chunk of “other people’s money,” as Justice Brandeis called it. Although the movement for campaign-finance reform has focused on the billions of dollars in corporate money flowing into political campaigns as a form of legalized bribery, there is good reason to see this transfer as a form of legalized extortion too. Corporate dark money in electoral politics is forming a back-channel axis of plutocracy in which coercion is experienced by both the political askers and the corporate givers. The late-nineteenth-century strategies of Mark “Boss” Hanna, William McKinley’s campaign manager, who assessed the banks and large corporations one-quarter of 1 percent on their capital toward the Republican Party’s victory in the 1896 presidential election, have returned with a vengeance—and on a bipartisan basis—in the Citizens United era.

Whether you see today’s dark-money system as a shakedown of unwitting shareholders, strategic rent-seeking by corporate actors unwilling to compete on fair terms, efforts by CEOs to ingratiate themselves with politicians for ambassadorships and cabinet posts, or some combination thereof, shareholders’ money should not be confiscated in these perversions of democracy. Now that the Supreme Court has written corporations directly into our system of government, the states are our best hope for writing political democracy into corporate law. So far, the enemies of corporate disclosure and the champions of management’s political power have successfully blocked every public effort to let the sun shine in. But, as they say on Wall Street, past results are no guarantee of future performance.

Until progressives come up with a compelling new political approach to business, we will be playing a whack-a-mole defense with the corporate-welfare bills that pop up constantly and define the “pro-business” legislative agenda across America.

A case in point is the stupefying proposal before the Maryland General Assembly to give Lockheed Martin, a multibillion-dollar Bethesda corporation and the world’s most successful military contractor, a $450,000 tax break every year until the end of time because—well, just because. Before a storm of public opposition appeared, the bill would also have given a $1.4 million retroactive local tax break to Lockheed, which in 2012 had sales of $47 billion.

No one is even pretending this tax break would lead to greater development or more jobs in Maryland. Rather, supporters argue that it’s a matter of tax fairness: the state should excuse Lockheed from paying Montgomery County’s “room rental and transient” tax for its corporate hotel and training center guests because it is not a real hotel. True, the county has repeatedly ruled that the tax applies to the thousands of overnight guests who have stayed at Lockheed’s Center for Leadership Excellence, and the County Council has twice rejected efforts by Lockheed’s lobbyists to get the facility exempted. True, this non-hotel has 183 bedrooms, premier banquet and conference rooms, a deluxe fitness center, a restaurant and a bar. True, it receives police and fire services and other county amenities. But the key thing, according to lobbyists, is that it’s not open to the general public; only Lockheed’s 120,000 employees and thousands of contractors, vendors and invited guests may stay there. Surely everyone understands that, because it refuses to serve the general public, this hotel/conference center should be released from public taxes!

The legislation, opposed by a majority on the Montgomery County Council, originally sought to “reimburse” Lockheed for the three years of overnight lodging tax it had already paid. But here’s the kicker: federal taxpayers, who are the source of most of Lockheed’s resplendent wealth in the first place, have already reimbursed the corporation for upward of 50 to 75 percent of the cost of its guests’ hotel taxes. In other words, Lockheed wanted to be reimbursed twice for the normal lodging tax that you and I and other natural persons pay without protest: first by federal taxpayers, who pick up the tab through federal contracts for nearly everything Lockheed does, and then by local taxpayers, who must bow down before the “pro-business” idol of corporate welfare.

Not unusual in the zany world of legislative giveaways, this bill expresses beautifully the ethos of high-tech corporate feudalism in what economist James Galbraith calls the “predator state.” Money flows continuously from impoverished state and county coffers into the sparkling corporate sphere, where multimillionaire CEOs must be seduced with an ever increasing supply of public dollars to keep them from relocating operations and jobs to other desperately obsequious “pro-business” states. In Maryland, we are told that major companies unhappy with our ungenerous approach will simply move across the Potomac to Virginia. From there, they can move to Mexico and points further south. Across America, such shakedowns are standard operating procedure.

Breaking the habit of Hood-Robin corporate welfare requires progressives to recover an authentic free-market philosophy. We need to rediscover the real Adam Smith—not the Republican stick figure on a lapel pin, but the Enlightenment economist and liberal philosopher who argued that commerce must take place in the context of a well-developed moral and political community. Smith insisted that although businesses should compete against one another in the marketplace, they should never conspire in public life against efficiency or the common good. He would deplore the deliberate conflation today of his free-market philosophy of honest business competition with the statist corporate-welfare agenda. Real free-market liberalism rejects arbitrary government subsidies to large businesses and, conversely, special-interest interference by corporations in the processes of democratic government. As conservative economists Raghuram Rajan and Luigi Zingales argue, it is time to rescue open free markets from the fantastic power of self-entrenching corporations, to “save capitalism from the capitalists.” The enemy of free markets is not regulation, which all economists know is necessary, but monopolies, cartels and the political distortion of fair competition.

It’s not easy to disengage from the habits of corporate welfarism, but the formula for a progressive business strategy begins with the millions of employees and owners of hundreds of thousands of small businesses who are bypassed daily in the political economy of the predator state. Main Street small business lacks the army of lobbyists employed by Wall Street and the statist sectors like Big Energy, Big Pharma, agribusiness and the military-industrial complex. Of course, the class divide within the “business community” is obscured by the right-leaning US Chamber of Commerce, which dresses itself in the clothing of small business but works heart and soul for the big guys. We need a Chamber of Progress, made up of all the green and progressive businesses across the land.

In the wake of Wall Street’s subprime meltdown, the housing crisis and mass unemployment, most Americans have come to see that bestowing more wealth on large corporations is not going to save us. Economist Gar Alperovitz has been urging public investment in cooperatives, small businesses, credit unions, benefit corporations and the hidden economy of solidarity that exists within our democracy. Progressives need a political and public policy strategy to connect with this economy and make it thrive.

Robert Scheer asks, “If Corporations Don’t Pay Taxes, Why Should You?” (originally at TruthDig).

An Occupy Wall Street activist stands with a dollar bill over his mouth during demonstrations on the one-year anniversary of the movement in New York, September 17, 2012. REUTERS/Lucas Jackson
 
   “And may the odds be ever in your favor.”
                  —Effie Trinket, announcer for the corporate state in The Hunger Games
 
We live in what will surely come to be called the Citizens United era, a period in which a runaway corporatist ideology has overtaken Supreme Court jurisprudence. No longer content just to pick a president, as five conservative Republicans on the Rehnquist Court did in 2000, five conservative Republicans on the Roberts Court a decade later voted to tilt the nation’s entire political process toward the views of moneyed corporate power.

In Citizens United (2010), the Court held that private corporations, which are nowhere mentioned in the Constitution and are not political membership organizations, enjoy the same political free speech rights as people under the First Amendment and may draw on the wealth of their treasuries to spend unlimited sums promoting or disparaging candidates for public office. The billions of dollars thus turned loose for campaign purposes at the direction of corporate managers not only can be but—under the terms of corporate law—must be spent to increase profits. If businesses choose to exercise their newly minted political “money speech” rights, they must work to install officials who will act as 
corporate tools.

The Court, transformed by the addition of Chief Justice Roberts and Samuel Alito, who were nominated by that lucky winner in Bush v. Gore, took this giant step to the right of all prior Courts without even being asked to do so. The petitioner, Citizens United, sought only a ruling that the electioneering provisions of the Bipartisan Campaign Reform Act (better known as McCain-Feingold) didn’t apply to its on-demand movie about Hillary Clinton. But the conservatives sent the parties back to brief and argue the paradigm-shifting constitutional question they were so keen to decide. As dissenting Justice John Paul Stevens observed, the justices in the majority “changed the case to give themselves an opportunity to change the law.”

Before Citizens United came down, corporations were already spending billions of dollars lobbying, running “issue ads,” launching political action committees and soliciting PAC contributions. Moreover, CEOs, top executives and board directors—the people whose income and wealth have soared over the past several decades in relation to the rest of America—have always contributed robustly to candidates. But there was one crucial thing that CEOs could not do before Citizens United: reach into their corporate treasuries to bankroll campaigns promoting or opposing the election of candidates for Congress or president. This prohibition essentially established a wall of separation—not especially thick or tall, but a wall nonetheless—between corporate treasury wealth and campaigns for federal office.

The Roberts Court’s 5-4 decision to demolish most of this wall also bulldozed the foundational understanding of the corporation that had governed American law for two centuries. The Court had always regarded the corporation not as a citizen with constitutional rights but as an “artificial entity” chartered by the states and endowed with extraordinary privileges in order to serve society’s economic purposes. The great conservative Chief Justice John Marshall wrote in Dartmouth College v. Woodward (1819), “A corporation 
is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those 
properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence.”

This “artificial entity” understanding of corporate law prevailed until Big Tobacco lawyer and corporate-state visionary Lewis Powell, of Richmond, Virginia, joined the Court. In First National Bank of Boston v. Bellotti (1978), the key forerunner to Citizens United, Powell assembled a bare majority to give corporations and banks the right to spend without limit to influence public opinion in ballot issue campaigns. The decision, which approved the desire of banks in Massachusetts to campaign against progressive tax measures, unveiled the key doctrinal move of what would later become the Citizens United era: “If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech,” Justice Powell wrote. “The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source.”

The Bellotti decision cracked open the door of campaign finance law, and the Citizens United majority blew that door off its hinges. The Court announced that, when it comes to campaign spending rights, the “identity of the speaker” is irrelevant and an impermissible basis upon which to repress the flow of money speech. What matters is the “speech” itself, never the speaker—a doctrine that would have come in handy for the public employees, public school students, whistleblowers, prisoners and minor-party candidates whose free-speech rights have been crushed by the conservative Court because of their identity as (disfavored) speakers.

Taken seriously, the Citizens United doctrine has astonishing implications for campaign finance. If it’s true that the “identity of the speaker” is irrelevant, the City of New York—a municipal corporation, after all—should have a right to spend money telling residents for whom to vote in mayoral races. Maryland could spend tax dollars urging citizens to vote for marriage equality in November, and President Obama could order the Government Printing Office to produce a book advocating his re-election. Surely the Supreme Court would never ban a book containing campaign speech!

Further, under the new doctrine, churches—
religious corporations—would have a First Amendment right not only to promote candidates from the pulpit but to spend freely on television ads advocating their election or trashing their opponents. The claim that churches surrender their right to engage in electioneering when they accept 501(c)(3) status is obsolete after Citizens United, which rejected the view that groups can be divested of their right to participate in politics when they receive incorporated status and special legal and financial privileges. If the identity of the speaker is truly irrelevant, there should be nothing to stop the Church of Latter-Day Saints or Harvard University from bankrolling political campaigns.

In the real world, the claim that the identity of the speaker is irrelevant cannot be taken seriously, and it is already being disregarded by the justices who signed on to it. The Court has so far declined to strike down the ban on foreign spending in American politics and the century-old ban on direct corporate contributions to candidates, laws that the new doctrine logically should invalidate. A total wipeout of campaign finance law appears to be just a step too far—at least right now—for a Court already facing plummeting public legitimacy.

But even if this incoherent doctrine goes no further, the surging stream of corporate and billionaire spending has already made a sweet difference for the Republican Party, which despairs of the nation’s demographic and cultural changes and depends on a mix of right-wing propaganda and voter suppression to confuse and shrink the electorate. Indeed, the potency of Citizens United became clear in the same year the decision was released.

The 2010 election should have been framed by three recent corporate catastrophes: the BP oil spill in the Gulf of Mexico, which inflicted billions of dollars in damage; Massey Energy’s collapsing coal mines in West Virginia, which cost twenty-nine people their lives and were enabled by the corporation’s aggressive lobbying and corruption of government; and the subprime mortgage meltdown brought on by the misconduct and power plays of AIG and Wall Street, which cost the American people trillions of dollars in lost homes and home values, ravaged pension and retirement funds, and destroyed stock equity.

But the infusion into the campaign of hundreds of millions of dollars from corporate and personal sources through secretive 501(c)(4) advocacy groups, 501(c)(6) trade associations and eighty-three new Super PACs completely changed the subject. The theme of the propaganda-soaked campaign became, remarkably, the urgent importance of deregulating corporations. The Republicans and the Koch brothers–funded Tea Party captured control of the House, bringing near paralysis to the government.

Citizens United did not accomplish this feat alone; it had a junior partner in SpeechNow.org v. FEC. This decision came from the US Court of Appeals for the DC Circuit, which struck down limits on what individuals can give to independent expenditure campaigns, a ruling that turbo-charged the Super PACs. While Citizens United freed the corporations, SpeechNow.org emancipated billionaires like Sheldon Adelson, the casino king who bets large on right-wing causes. Adelson’s millions kept the floundering Newt Gingrich afloat for the Dixie primaries. After Gingrich’s campaign went craps, Adelson sent $10 million to a pro-Romney Super PAC and vowed to spend as much as 
$100 million to defeat Obama as president.

Today there are 844 Super PACs and countless 501(c) vehicles; experts say billions of dollars, much of it untraceable, will flood the 2012 election. We will never know for sure whose money is paying for the show, because the front groups easily conceal their donors, including foreign corporations. Moreover, right-wing lawyers are now challenging campaign finance disclosure requirements as unconstitutional compelled speech, like making Jehovah’s Witness schoolchildren pledge allegiance to the flag. They argue that corporations should be free to keep their political spending secret because they may face intimidation and even—God forbid—boycotts from consumers who dislike their politics. In other words, corporations have a right to speak because they are like people, but they should be completely insulated from the speech reactions of natural people. This is some “marketplace of ideas” the champions of corporate power have in mind for us.

Support for a constitutional amendment to reverse Citizens United is growing because, as Justice Stevens objected, 
”A democracy cannot function effectively when its constituent members believe laws are being bought and sold.” An amendment to allow for reasonable regulation of campaign expenditures and contributions would empower Congress to return corporations to the economic sphere. It would also solidify the public’s interest in campaign disclosure and, as Harvard professor Laurence Tribe has observed, the much-eroded interest in building a public financing system that makes participating candidates at least minimally competitive with privately financed candidates. This is an interest that the Roberts Court has trashed, in cases like Davis v. FEC (2008) and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011). In these decisions, the Court, in essence, ruled that privately financed candidates backed by wealthy interests not only have a right to spend to the heavens to win office but also a right, in states with public financing laws, to lock in their massive financial advantage over publicly financed candidates, whose campaign speech may not be even modestly amplified by public funding when they get outspent. Here, as distorted beyond recognition by the Roberts Court, the First Amendment becomes not the guardian of democratic discussion but the guarantee of unequal protection for well-born and wealth-backed politicians. Today, corporations can saturate the airwaves and billionaires can spend to their hearts’ content, but government cannot create even a modest megaphone to help poorer candidates be heard.

A constitutional amendment to correct these distortions may seem impossible now, but all amendments seem impossible until they become inevitable. Most amendments since the Bill of Rights have expanded democracy or, like the Twenty-Fourth Amendment banning poll taxes, removed obstacles to democracy authorized by the Supreme Court. President Obama’s recent statement of support for mobilizing a campaign to amend the Constitution suggests a coming surge of political engagement on the issue.

Defenders of our new plutocracy point out that there are many thousands of corporations in America, most of them small, but this bit of faux small-business populism is an irrelevant distraction from how the corporate “wealth primary” works in the real world. Major industries that have an “extractive” character and a parasitic relationship with government—Wall Street, Big Oil, Big Pharma, the military-industrial complex—have cultivated a pervasive financial dependency on elected officials that permits them to continue the exploitative symbiosis that economists call “rent-seeking.” Avoiding the hazardous risks of innovation, investment and competition, many conglomerates prefer playing power politics in Washington. They don’t increase the pie; they just grab ever larger slices of it.

These arrangements operate on a simple return-on-investment basis: corporations devote millions to electing and lobbying politicians and then collect hundreds of millions in tax breaks, corporate welfare, sweetheart contracts, bailouts, deregulation and inside deals. This squalid form of “public policy,” which even Republicans call “crony capitalism” (in the primaries anyway), works splendidly for those involved but dismally for everyone else, including businesses that lack the finance capital to invest in the political system. A plutocratic state denies us both political justice and a fair economy.

When a bristling Justice Antonin Scalia went on CNN in July and defended Citizens United, which is considered a recipe for corruption by nearly 70 percent of Americans, he enlisted everyone’s favorite founder. “I think Thomas Jefferson would have said, ‘The more speech, the better,’” Scalia opined.

One must charitably assume Scalia’s utter ignorance of Jefferson’s political philosophy and how much the Sage of Monticello feared the rise of a “single and splendid government of an aristocracy, founded on banking institutions, and moneyed incorporations,” which he foresaw “riding and ruling over the plundered ploughmen and beggared yeomanry.” The Citizens United era bears a disturbing resemblance to Jefferson’s nightmare vision of what might happen if corporate power swallowed the government. But Justice Scalia and the other juriscorporatists managing our scales of justice know just what good wishes to offer the “plundered ploughmen and beggared yeomanry” of our day, and the rest of the people we call the
99 percent: “May the odds be ever in your favor.”

ALSO IN THIS FORUM

Bill Moyers and Bernard A. Weisberger: “The 1 Percent Court”
William Yeomans: “How the Right Packed the Court”
Dahlia Lithwick: “One Nation by and for the Corporations”
Michael Greenberger: “The Roberts Court and Wall Street”
Craig Becker and Judith Scott: “Isolating America’s Workers”
Herman Schwartz: “Rewriting Antitrust Law”
Sherrilyn Ifill: “A Court Out of Touch”
Nan Aron: “The Way Forward”

When America began, the states chartered corporations for public purposes, like building bridges. They could earn profits, but their legitimacy flowed from their delegated mission.

Today, corporations are chartered without any public purposes at all. They are legally bound to pursue a single private purpose: profit maximization. Thus, far from advancing the common good, many for-profit corporations have come to defy the law, corrupt the officials charged with enforcing it and inflict harm on the public with impunity. The consequences are visible in the wreckage left by BP, Massey Energy, Enron, AIG, Lehman Brothers, Blackwater and Exxon Mobil, to name a few recent wrongdoers. Profits rule; anything goes.

We need a new business model inspired by the old one. Corporations should again come to bolster democratic purposes, not thwart them. To be sure, there will be no return to the legislative short leash, especially now that the Supreme Court has invited corporations to spend treasury funds electing pliant and obsequious lawmakers. But socially minded businesses should at least have the right to operate outside the straitjacket legal requirements of Delaware Code profit maximization.

Thankfully, a promising alternative is emerging: an entity called the Benefit Corporation, which has been written into law in Maryland, New Jersey, Virginia and Vermont, and is moving quickly in other states too. The new laws permit companies to join the profit motive with the purpose of making a “positive impact on society and the environment.” In their articles of incorporation, Benefit Corporations declare their public missions—things like bringing a local river back to life, providing affordable housing, facilitating animal adoptions or promoting adult literacy. Under the law they must go regularly before a third-party validator like B Lab, the visionary Philadelphia-based alliance of more than 400 so-called B Corps across the country, to prove that they are not only meeting their goals but treating their employees, customers, communities and local environments with the same respect as their shareholders. Benefit Corporations can lose their B Corp title and their legal status for not doing right by these standards.

But why would public-spirited corporations embrace these exacting duties when they can simply roam free and do a little bit of altruistic good on the side? For one thing, Benefit Corporations can’t be held liable by courts for failing to place profits over everything else. This is an important shift in law. The fear of shareholder litigation has driven many public-spirited businesses, most famously Ben & Jerry’s, to take the high bid rather than the high road in a corporate takeover fight. Becoming a Benefit Corporation declares legal independence from the profits-über-alles model. More important, having Benefit Corporation status sends a powerful message to shareholders, employees, business partners and consumers about what kind of company you’re running. The signal generates instant branding, internal cohesion, consumer enthusiasm and links to a vibrant national B Corp network that brings in more than $4.5 billion in revenues. (Some B Corps are even worker-owned, like Vermont’s famous King Arthur Flour, which has almost 200 employees and may become the poster child for companies doing well in commerce, doing good in society and doing justice in the workplace.) The key to success here is a growing consumer demand for responsible commerce.

In a political sense, the surging popularity of B Corps will change the way people think about business. We can have a market economy without having a market society, and we can have prosperous corporations that act with conscience. Our besieged labor unions and nonprofits should bolster these businesses—green, local, progressive, entrepreneurial, community-focused—as an alternative to an economy controlled by massive state-subsidized corporations that are too big to fail and whose executives are too rich to jail.

It may take a while to displace the rent-seeking leviathans that get rich off lobbying, power plays, pyramid schemes and defense contracts. Then again, a lot of those companies have relocated their operations abroad in search of cheaper labor, while the Benefit Corporations are taking root and blossoming right here in America, restoring the bonds of community while doing honest commerce. This is what economic recovery looks like.

Read the next proposal in the “Reimagining Capitalism” series, “To Guarantee Corporate Responsibility, Open the Boardroom Door,” by William Lerach.