Chapter 8: The Crime Pays Off
Davis’s fraudulent headnote of 1886 was just the beginning. Over the next 140 years, corporate lawyers would build an empire of constitutional rights on that foundation of fraud. The progression reached its logical conclusion in 2010, when five corrupt Republican Supreme Court justices—several openly on the take from rightwing billionaires and massive corporations—handed morbidly rich oligarchs the power to buy American democracy outright.
Citizens United wasn’t just about campaign finance rules or the legalization of bribing Supreme Court justices (although it encompassed both): it was the culmination of a 140-year theft. The oligarchs finally had functionally unlimited constitutional weapons to complete what the southern plantation fascists built prior to the Civil War and the railroad barons started in 1886: the destruction of the American Dream and its replacement with an all-American form of oligarchic feudalism.
The Century of Expansion
Between 1886 and today, corporations have systematically claimed every constitutional right that was written to protect human beings.
First Amendment freedom of free speech? Corporations claimed it in the 1970s and 1980s, arguing they had the right to spend money on political campaigns, advertise tobacco to children, and lie in their marketing.
Second Amendment gun rights? Weapons manufacturing corporations claimed it to challenge state and city laws that protected citizens and schoolchildren from gun violence and to help them market their deadly wares.
Fourth Amendment protections from unreasonable searches and seizures? Corporations claimed it in Dow Chemical Company v. United States (1986), arguing the EPA couldn’t use aerial photography to detect illegal cancer-causing pollution without a warrant because Dow was a “corporate person.”
Fifth Amendment protection against self-incrimination? Corporations claimed it to avoid disclosing evidence of crimes and to conceal the dangers of tobacco (which killed my brother), asbestos (which killed my father), and pesticides (among other things).
I still remember my dad coming home from the tool-and-die shop where he worked, smelling of machine oil, talking over dinner about the Machinists Union and how unions were the reason we had a middle-class life, his discussions with my mom about how they’d travel the world with the pension he was earning. Corporate constitutional rights took that all away from me and my family.
Sixth Amendment right to trial by jury? Corporations demanded it to drag things out and increase the costs to government whenever they were facing regulatory penalties.
Seventh Amendment right to a jury in civil cases? Corporations asserted it while simultaneously forcing consumers and employees into mandatory binding arbitration, denying humans the same right.
Thirteenth Amendment outlawing slavery? Private prison corporations note that the amendment still allows slavery for persons convicted of a crime, so for-profit prison slave labor has become a multibillion--dollar-a-year business that rivals the old Confederacy.
Fourteenth Amendment equal protection and due process? Corporations used these relentlessly to strike down regulations, block taxes, and prevent democratic governance.
The only amendment corporations haven’t seriously claimed is the Third (quartering soldiers in private homes), but give them time. Trump, with his increasing militarization of American cities, may still find a way to use it to make money for his billionaire buddies or install ICE agents in our houses and apartment buildings.
Virtually every constitutional right written to protect human dignity, liberty, and democracy has been converted into a weapon for corporate power.
The Destruction of the New Deal
For nearly fifty years, from 1933 to 1980, the American Dream flourished despite Davis’s corporate constitutional rights headnote. FDR’s New Deal and the regulatory framework that followed it constrained corporate power enough, in fact, to build the largest middle class in world history, the first to exceed half of the nation’s population.
The Roosevelt, Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, and Carter administrations were able to do this because even with corporate constitutional rights on the books, the political will still existed to regulate corporations, tax the wealthy, protect workers, and invest in public goods. The memory of the Republican Great Depression was still fresh. Thanks to FDR, unions were strong. And the courts, while accepting corporate constitutional rights, hadn’t yet extended it to its logical extremes.
That all changed with the Republican Reagan Revolution of 1981.
Reagan didn’t just cut taxes and deregulate industries: following the advice of the billionaire-funded Heritage Foundation, he activated corporate constitutional rights as weapons against FDR’s New Deal framework. His administration and partisans like John Roberts (then a lawyer in Reagan’s Justice Department) encouraged corporations to challenge regulations in court, claiming their constitutional rights were being violated. His well-funded judicial appointments put corporate-friendly judges on the bench who would expand corporate rights for decades to come.
The assault on America’s democracy and our middle class was systematic. Union busting was justified by corporate property rights. Tax cuts for the wealthy were framed as protecting corporate due process rights. Deregulation was defended as preventing unconstitutional Fifth and Fourteenth Amendment takings of corporate property. Media consolidation was enabled by corporate First Amendment “free speech” claims.
Each piece of the New Deal framework that had built the world’s first widespread middle class and the functioning democracy that supported it came under attack. And corporate constitutional rights provided the legal weapons for that attack.
When states tried to protect workers, corporations sued, claiming their contract rights were being violated. When the federal government tried to regulate pollution, corporations claimed unconstitutional Fifth Amendment takings and Fourth Amendment invasions of their privacy. When communities tried to limit corporate political spending, corporations asserted First Amendment free speech protections.
The fraudulent headnote of 1886 had been a hand grenade sitting with its pin intact for decades. Reagan and his successors pulled that pin, and the American Dream began to die so quickly that by 2015 fewer than half of Americans were still in the middle class, and it took two salaries to get there.
But pulling the pin wasn’t enough. The oligarchs needed real cover. They needed to make sure that as working families watched their security disappear, they’d blame the wrong people.
Enter the deflection playbook: “welfare queens,” “law and order,” “illegal immigrants,” “taxpayers versus takers.” It was a systematic strategy specifically designed to redirect working-class anger away from the morbidly rich and toward the powerless. As I’ll detail later in the book, the same oligarchs who destroyed the American Dream became experts at making sure nobody blamed them for it.
The Democratic Tradition of Keeping Corporations out of Politics
For roughly the first half of America’s history, states understood that corporations had no business meddling in democratic elections. In 1905, for example, Wisconsin passed a law (Section 4489a, Sec. 1, ch. 492, 1905) that explicitly said: “No corporation doing business in this state shall pay or contribute, or offer, consent or agree to pay or contribute, directly or indirectly, any money, property, free service of its officers or employees or thing of value to any political party, organization, committee or individual for any political purpose whatsoever, or for the purpose of influencing legislation of any kind, or to promote or defeat the candidacy of any person for nomination, appointment or election to any political office” (emphasis added).
Make a special note of those words “any political purpose whatsoever.” Wisconsin wasn’t hedging or creating loopholes. It was unambiguously saying that corporations have no role messing around in democracy. They don’t vote, don’t marry, don’t get hungry or sick, and can live forever, so they shouldn’t be allowed to use their economic power to twist our system of governance to their benefit and to the detriment of We the People.
Wisconsin wasn’t alone in those early fights to keep states’ democracies free of corporate control; throughout the Progressive Era and beyond, states across America passed similar laws keeping corporate money out of politics. This wasn’t even controversial back then; it simply reflected common sense and a widespread distrust of the morbidly rich.
Until five corrupt Republicans on the Supreme Court, armed with Davis’s doctrine of corporate constitutional rights, began tearing it down.
The Bellotti Decision
The march toward Citizens United really got underway in 1978 with the Supreme Court’s First National Bank of Boston v. Bellotti decision.
Massachusetts had passed a law prohibiting corporations from spending money to influence ballot initiatives unless the initiative directly affected the corporation’s business, arguing that corporate treasuries were so large compared to individual citizens’ resources that allowing corporate spending would drown out human/citizens’ voices.
Basing their argument on Davis’s fraudulent headnote from the 1886 Santa Clara County decision, the First National Bank of Boston—whose CEO wanted to put some of the bank’s money into a ballot initiative to cut taxes—sued, claiming the bank’s First Amendment free speech rights to fund political campaigns were being violated by the law.
As Ciara Torres-Spelliscy noted in 2014:
In the 1970s, Santa Clara was used to justify granting corporations the First Amendment right to spend unlimited corporate funds on ballot initiatives in a case called Bellotti. The Court relied on Santa Clara’s reading when it stated that “[i]t has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment.” Justice Rehnquist, in his dissent, questioned the wisdom of extending corporations political rights: “[T]hose properties, so beneficial in the economic sphere, pose -special dangers in the political sphere.” Again, Rehnquist could not convince his brethren.
In Citizens United, when the Supreme Court held that political speech is “indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation,” they cited Bellotti. Thus, it’s only a hop, skip and a jump from Santa Clara to Citizens United.
In Sebelius v. Hobby Lobby Stores, the store chain is claiming that the corporation (and not just its proprietors) has a religious objection to providing certain types of birth control for its workers as required by the Affordable Care Act. Thus, the Court is contemplating expanding corporate constitutional rights to a new logical extreme: First Amendment religious rights. It’s no surprise that Hobby Lobby’s brief relies on Bellotti and Citizens United.
The Supreme Court, in the 5–4 Bellotti decision, sided with the corporations. Justice Lewis Powell (a Nixon appointee in 1972, a year after he wrote the infamous Powell Memo), writing for the majority, held that corporate speech deserved First Amendment protection because “[t]he inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source.”
In other words, it doesn’t matter whether speech comes from a human being or a corporation. Speech is speech.
This is absurd on its face: in a democracy, the identity of the speaker exercising First Amendment free speech rights matters enormously. When scientists say cigarettes cause cancer, that’s different from when a tobacco corporation says—to protect their profits—that cigarettes are safe.
When citizens go door to door to get signatures for higher taxes to fund schools, that’s different from when a corporation showers cash on politicians and judges to oppose those taxes and thus increase profits. When human beings express a political opinion, we’re exercising conscience, self-interest, and judgment. When a corporation funds a political opinion by purchasing advertising or showering cash on elected officials, however, it’s advancing the financial interests of wealthy shareholders and multimillionaire executives in ways that are often in direct opposition to the public interest.
But Lewis Powell’s majority opinion won, and thus—for the first time since FDR’s presidency—enshrined the corrupt principle that corporate “speech” (in other words, money, since corporations don’t have mouths) has First Amendment protection.
Justice Byron White dissented powerfully in Bellotti: “The State has a legitimate interest in regulating corporate participation in political debate in order to prevent corporate domination of the debate and to minimize the use of corporate economic power as a means of distorting the outcome.”
White understood what was at stake, but the Republican majority either didn’t understand or didn’t care.
Bellotti, then, opened the real floodgates that brought Reagan to power two years later and continue to wash over us with corporate cash today. If corporations had First Amendment rights to influence ballot initiatives (Bellotti), what about general elections for politicians? What about unlimited spending on electioneering? What about functionally purchasing political outcomes with the vast resources found in corporate coffers?
Those questions would be answered in 2010, with Clarence Thomas—himself the recipient of millions in “gifts” from rightwing billionaires—becoming the deciding vote.
Citizens United: The Oligarchs Strike Back
In the election year of 2008, a rightwing advocacy group called Citizens United produced a political hit piece on Hillary Clinton. They wanted to run it in theaters and as video-on-demand during the 2008 Democratic primary campaign to knock her out of the running.
The Federal Election Commission said the movie violated the Bipartisan Campaign Reform Act of 2002, known as McCain-Feingold, which prohibited corporations from using their general treasury funds for “electioneering communications” within ninety days of an election.
Citizens United sued, arguing their (nonprofit) corporate First Amendment right to free speech was being violated by McCain-Feingold.
The case reached the Supreme Court in 2009, and Citizens United’s lawyers first argued narrowly that their specific video should be allowed because the time restrictions were essentially arbitrary.
But the five Republican justices—Roberts, Scalia, Kennedy, Thomas, and Alito—saw an opportunity to do something far bigger: with this single case, they could overturn a century of campaign finance law and give corporations and their morbidly rich oligarch owners the unlimited power to spend money on—and thus influence or even control—elections.
The Republicans on the Court thus asked for re-argument on a much broader question that had never been part of the case in the first place: can the government restrict any corporate political spending at all?
As a result, on January 21, 2010, the five Republicans on the Court issued (over the loud objections of the four Democrats) one of the most consequential and destructive decisions in American history.
Justice Anthony Kennedy, writing for the five-justice majority, held that the government cannot restrict independent political expenditures by corporations. Spending money to influence elections is “speech” protected by the First Amendment, he explained, and, under the logic of Davis’s headnote, corporations have the same First Amendment rights as human beings.
The Republican justices’ reasoning rested entirely on previous cases grounded in Santa Clara and its progeny. Corporations are persons. Money is the same thing as speech for a corporation, which otherwise lacks a mouth and vocal cords. Persons have First Amendment rights. Therefore, corporations can spend unlimited money to influence elections.
Kennedy, ignoring the fact that the word corporation doesn’t appear even once in the Constitution, wrote: “The Government may not suppress political speech on the basis of the speaker’s corporate identity,” and “The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker.”
Justice John Paul Stevens dissented in a ninety-page opinion that dismantled the majority’s reasoning piece by piece.
Stevens wrote: “Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”
Stevens understood what the majority refused to acknowledge: corporations are not people, so granting them constitutional rights perverts democracy.
But Stevens was in the four-Democratic-appointee minority, so his dissent had no legal power. The five Republican justices—several clearly on the take themselves at the time—gave the nation’s morbidly rich oligarchs exactly what they wanted: the constitutional right to buy elections.
The Immediate Impact
The impact of Citizens United was both immediate and catastrophic for democracy and has gotten worse every year since.
In the 2010 midterm elections, the first after Citizens United, outside spending by corporations and wealthy individuals more than doubled from the previous midterm. Super PACs, which could accept unlimited corporate money, spent over $300 million. By 2012, outside spending topped $1 billion. By 2020, it exceeded $3 billion, and in 2024 was about $4.5 billion.
So now we can see who were the real “speakers” in these elections: not citizens or even voters. They were almost exclusively wealthy individuals and corporations, many hiding behind layers of anonymity through dark money groups; over 100 billionaire families put over $2.4 billion into the 2024 election alone, with the vast majority going to Trump and the GOP. Corporate PACs kicked in billions more.
Following the logic of Davis’s headnote and Lewis Powell’s memo, America’s oligarchs had been given the keys to corrupt our democracy, and they set about using them with enthusiasm.
The Logical Extension
Thus, it turns out that—predictably—Citizens United was just the beginning. Once corporations got their hands on an unlimited First Amendment right to spend money on politics, other corporate rights followed.
In Burwell v. Hobby Lobby (2014), the Supreme Court ruled that closely held corporations have religious freedom rights under the Religious Freedom Restoration Act and the First Amendment. As a result, a non-living soulless corporation could refuse to provide contraception coverage to employees based on its alleged religious beliefs because it was granted religious freedom rights by five corrupt Republicans on the Supreme Court.
Justice Ruth Bader Ginsburg dissented: “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”
The five Republican justices, Roberts, Scalia, Kennedy, Thomas, and Alito (the same five from Citizens United), nonetheless gave corporations religious rights. When was the last time you saw a corporation kneeling at a church altar?
McCutcheon and the Continuing Assault
In 2014, in McCutcheon v. Federal Election Commission, the Supreme Court took this bizarre logic to its next extreme when it struck down aggregate limits on individual campaign contributions. Those same five Republican justices ruled that preventing corruption wasn’t enough of a justification to level the political playing field by reining in spending.
Chief Justice Roberts wrote that the First Amendment “is designed and intended to preserve a free and open public discussion of public questions,” and—because money is now a stand-in for “speech”—that contribution limits on his, Thomas’s, and Alito’s morbidly rich patrons infringed this constitutional right to buy politicians and election outcomes.
This is, to use the technical term, nuts, but it’s now the law. When Elon Musk gave a quarter-billion dollars to Trump and his campaign in 2024, it wasn’t “speech” in any meaningful sense. It was an oligarch—the richest man in the world—using his wealth to buy influence, access, and political outcomes that favored his and his companies’ bottom lines.
Justice Stephen Breyer dissented, writing: “Where enough money calls the tune, the general public will not be heard,” but he was in the minority, so the rest of us are now being drowned out in virtually every election.
The Oligarch Democracy
We now live in what some political scientists call an oligarchic democracy, a system where wealth—both individual and corporate—determines political outcomes more than votes.
The statistics are damning. According to Princeton professor Martin Gilens, who studied 1,800 policy outcomes, because of this bizarre Republican interpretation of the Fourteenth and First Amendments, “economic elites and organized groups representing business interests have substantial independent impacts on US government policy, while average citizens and mass-based interest groups have little or no independent influence.”
In other words, what ordinary Americans want has virtually no impact on what policies get enacted. What wealthy elites and corporations want, instead, almost always determines policy outcomes.
Consider all the issues that score well above 60 percent (and often above 80 percent) on national polling: gun control, free or inexpensive college, a national healthcare system, improved public schools, cheap pharmaceuticals, affordable housing, an absolute right to unionize, the right to vote without your name being purged, a meaningful top income tax rate on the rich, getting climate change under control, breaking up monopolies, and equal rights for minorities and women.
None of these things are happening, and it’s because big-money interests oppose all of them. That isn’t democracy; it’s an oppressive oligarchy pretending to be a democracy.
And it all traces back to Davis’s fraudulent 1886 headnote. Once corporations became “persons” with constitutional rights, this horrible list of outcomes became both predictable and inevitable.
The International Dimension
And these horrors inflicted on us by a series of corrupt Supreme Court decisions and the phony doctrine of corporate constitutional rights they’re based on are no longer limited to whacking democracy in our country. America’s corporate constitutional rights doctrine has also spread into international law through trade agreements drafted with the “help” of America’s largest corporations.
Starting with the Reagan administration, which first negotiated the precursors to NAFTA and the Trans-Pacific Partnership (TPP), multiple bilateral investment treaties now give corporations the right to sue governments in private tribunals whenever government regulations hurt corporate profits. These “investor–state dispute settlement” provisions let corporations trample the will of We the People, and do it in secret.
For example, a Canadian mining company sued El Salvador for refusing to grant a mining permit that El Salvador documented would contaminate its drinking water. A tobacco company sued Uruguay for requiring life-saving health warnings on cigarette packages. An oil company sued Ecuador for regulations protecting its environment.
These aren’t really “trade disputes”: they’re corporations using treaty law—which they gained by financing politicians with their corporate “free speech”—to claim rights superior to democratic governance.
The same logic that gave corporations constitutional rights in America is now giving them treaty rights globally because corporate constitutional rights have gone international.
The world’s oligarchs aren’t just buying American democracy; they’re using our Supreme Court’s 5–4 Republican-only decisions to buy sovereignty itself.
The Court That Sold Democracy
The five Republican justices who decided Citizens United and Hobby Lobby—Roberts, Scalia, Kennedy, Thomas, and Alito—will be remembered by history as the Court that sold American democracy to the world’s most toxic and morbidly rich oligarchs.
And they didn’t even bother to do it subtly or incrementally. This power grab was done brazenly, overturning a century of precedent to give corporations and their oligarchs functionally unlimited political power.
These five justices claimed to be “originalists” who’d only interpret the Constitution “according to the Founders’ intent.” But, as history tells us, this nation’s Founders would have been horrified by the entire idea of corporate constitutional rights. They quite literally fought a revolution against corporate tyranny and then deliberately excluded corporations from any constitutional protections.
As I wrote in The Hidden History of the Supreme Court and the Betrayal of America, the “originalism” of the Roberts Court is a fraud, just like the headnote in Santa Clara. It’s a convenient fiction used to justify the destruction of our democracy.
History will not judge these justices kindly, nor should it. They’ll be remembered as the men who murdered American democracy at the request of the very oligarchs who paid to have them appointed.
The American Dream, Murdered
For my father’s generation, born during the Republican Great Depression and coming of age with World War II, the American Dream wasn’t just a slogan. FDR’s massive experiment with Keynesian economics worked; it was a reality for two-thirds of American families by 1980. A single income could support a family. You could buy a house for three times your annual salary. College was affordable or free. Healthcare didn’t bankrupt families. Retirement was secure. Children saw better opportunities than their parents.
As mentioned earlier, that reality was built by two Progressive Eras and a series of presidents who worked hard to constrain oligarch and corporate power. The first, from the 1890s through 1920, established the income tax, direct election of senators, women’s suffrage, and the first antitrust laws. The second, from 1933 through 1981, created Social Security, the right to organize unions, the minimum wage, and the regulatory framework that prevented corporate abuse.
But today, as we look at the wreckage of the middle class all around us, we can now see that Davis’s corporate constitutional rights headnote provided Reagan, the GOP, and their oligarch “donors” with the weapons to tear it all down.
Citizens United was the final blow against our democracy, leading us directly to the Trump presidency. Once corporations and their oligarch owners could spend unlimited money on elections, they could finance politicians who’d cut their taxes, deregulate their industries, crush their workers’ unions, and transfer wealth from working families to the oligarchs created by those same companies.
Thom, this article is a wonderful composite defining today’s corporate power leading to corruption. Thanks. Greg
What if "we the people" determined that our government was in fact a corporation? Would it then be authorized to buy up all its rivals, strip them of their wealth, and saddle them with debt? That would turn the tables.