The case law that led to the Citizens United ruling got its start in 1886 with Santa Clara County v. Southern Pacific Railroad. Most of us know by now that the headnote from that otherwise sleepy case is the original culprit. And even though granting corporate personhood in a headnote is neither legal nor logical, it has been accepted as settled law by the Supreme Court ever since. There is no reason to believe that will change. So we have to acknowledge it and act.
All of this hinges on a simple problem – the improper definition of the word “person.” That one simple act of expanding the definition of “person” to include legal fictions has resulted in the granting of rights to organizations that previously enjoyed only privileges. There are several ways to put that genie back in the bottle. The mistake most other amendment language makes is in trying to distinguish one type of legal fiction from another and/or attempting to strip all rights from corporations, which would have a catastrophic impact on corporate contract law.
It’s possible to roll back 125 years of case law without having to completely rewrite the laws that grant corporate charters. And that is by simply limiting the definition of the words “person,” “persons,” and “people” to living people. Rather than describing what legal fictions are not, which will never encompass every type of legal fiction that can be invented, we describe what real people are, carving all legal fictions out of the equation.
Designed to grant citizenship to all former slaves, section one of the 14th Amendment begins with a simple definition of citizenship and goes on to place limits on the powers of the federal and state governments to abridge the rights of all citizens. It’s clear that the 14th Amendment applies only to living persons because it uses the terms “born or naturalized,” which legal fictions are neither. They can be built, organized, founded, incorporated, spun-off, merged and more, but no legal fiction is ever born or naturalized.
A person is a living human being and nothing else. This is no time to include animal rights or use a term like “artificial person.” We don’t know what kind of life will be considered a “person” in the distant future. We have to deal with what we have right now. The only thing that can be considered a “person” right now, and for the long foreseeable future, is a living human being. Thus the language:
Section 1: In all instances wherein the words “person,” “persons,” and “people” appear in this Constitution, such words shall be exclusively construed to define living human beings, and shall not include artificial entities created by law.
Money as Speech: A Rebuttal
The Supreme Court’s view that spending money is an expression of speech is correct in the abstract. So is throwing a rock through a window. Both actions can be seen as an expression of speech — one favorable, the other hostile. But nobody expects the courts to protect a person’s right to throw a rock through a window as an expression of speech over the window-owner’s right to be secure in his or her property, even if the window is on a building that belongs to the public.
The mistake the Supreme Court has consistently made with regard to money is in failing to acknowledge the real damage wealthy organizations and individuals can have on the electoral process. Whether done to property with a rock or to public opinion with a barrage of campaign ads, the damage is real.
The public has a right to control human-made forces that can have a damaging impact on society. The electoral process is so intrinsically critical to the proper functioning of our democratic republic that any systemic bias must be seen as damaging to our society, and therefore, subject to regulation no different than any other societal threat.
Money itself is not speech and it need not be for the Supreme Court to continue to strike-down campaign finance reform laws. It’s the spending of money that constitutes an expression of speech. Any amendment to the constitution that intends to end the Supreme Court’s reading of the first amendment must include language that not only defines money as a tool (like a rock), but also prohibits congress from recognizing the using of that tool as an expression of speech (like throwing the rock).
The judiciary need not be included as their role is simply to interpret the constitutionality of laws that emanate from congress. Prohibiting congress from passing the kind of laws that interpret the constitution the way the Supreme Court already has interpreted the constitution, starting with Buckley v. Valeo, effectively overturns 36 years of case law with regard to money in politics. Thus the language:
Section 2: “Money” and “currency” are defined only as legal tender for the purpose of settling all debts, public and private. Neither Congress nor the Judiciary shall recognize the spending of money and currency as an expression of speech of any kind, or as an expression of any of the rights enumerated in this constitution.
It has become typical in later constitutional amendments to include language that empowers Congress to enforce the new amendment in the final section. That’s what this final section was originally designed to be.
Because the Supreme Court has usurped the power to (de)regulate elections, we included language that reaffirms Congress’ power to regulate elections as set down in Article 1, Sections 4 of the U.S. Constitution. This is limited to federal elections to avoid granting Congress too much power over state and local elections. Thus the language:
Section 3: Congress shall have power to enforce this article and to regulate federal elections by appropriate legislation. The several states shall have power to enforce this article and to regulate state elections by appropriate legislation.
The Constitution is a process-oriented document. It should be amended with process-oriented language. The constitution deals with powers, privileges and rights. The reason corporations have too much power is because the Supreme Court has too much power and has used it improperly. This language is designed to clip their wings and give Congress the ability to rein in wealthy interests. Think about being the Congressperson, who votes for CFR, only to see SCOTUS strike it down time and again. Still want to put yourself in the cross hairs, especially in the wake of CU v. FEC?
We have to empower Congress to act by sweeping SCOTUS out of the way and clearing the path for meaningful CFR that can survive an election cycle. This language would end the legal cover provided by SCOTUS. No other amendment I’ve seen would be as effective in getting SCOTUS out of the way and most of them would do too much harm to centuries of established contract law. This is the better approach, even if this particular language doesn’t survive. This is the correct way to do it. We hope more people start to agree. It’s unlikely that any kind of campaign finance reform packaged as an amendment would be passable with 2/3rds support in Congress and ratified by 3/4 of the states.
If you agree with a sensible, effective, non-partisan approach to reclaiming our democracy for the people, please sign our petition here. Thank you.