In a post published by Truthout on January 17th of this year entitled “The Problem with Citizens United is Not Corporate Personhood,” authors Rob Hagar and James Marc Leas argue that the Citizens United decision of January 21, 2010 had nothing to do with corporate personhood, which is true, and that an amendment is not needed to overturn the decision. The latter would be true…in a perfect world. Unfortunately, we do not live in a perfect world or country or anything close to that.
The authors point to the amendment that has been proposed by Senator Bernie Sanders and Fl. Rep Ted Deutch which has outcome-oriented language and only limits the personhood of for-profit companies, LLC’s and entities to promote business activities. We have also criticized amendment language that is outcome-oriented, and it is recognized by many in our movement that all artificial entities, including unions, must have their “rights” legally removed from them in favor of artificial persons and other organizations having privileges that can be revoked if they are abused. This approach is more fair and non-ideological in the sense of left v right, liberal v conservative or blue v red states (of mind).
We must have a fair, balanced and non-ideological approach to any proposed amendment, and our proposed Human Rights Amendment accomplishes just that. Our struggle is political, but not ideological. Restoring a government of the people, by the people and for the people will require the support of libertarians, conservatives, liberals and radicals. Otherwise, no amendment will ever attain the ratification of 3/4 of the states.
To be fair to Hagar and Leas, they were not aware of our proposed amendment language when they wrote their piece criticizing the Deutch-Sanders Resolution. They explain that the reasoning used to allow all entities, corporate, union, individual, foreign, etc. to contribute unlimited amounts of money to superPACs had nothing to do with the rights of the speakers, corporate or otherwise. In their words:
The sterile, highly technical issue of corporate personhood is an antiquated doctrine that played no role in Citizens United or any of the other election cases. From a practical point of view, as the Supreme Court itself pointed out, whether corporations should have First Amendment rights is the wrong question to ask, and, also, the wrong argument to wage. Limiting the scope of who can enjoy speech rights alienates such potential allies as the American Civil Liberties Union (ACLU) and diverts energy away from the actual constitutional problems.
The ACLU has been helping wealthy Americans’ efforts to keep the United States a plutocracy, but they are also in transition with respect to the fraudulent understanding that money is a form of speech that cannot be regulated. For more on that, read “Why is the ACLU Helping the Richest Americans Buy Our Elections,” published on Alternet.
The authors appropriately criticize the Supreme Court for their twisted misunderstanding and “novel interpretation” of the 1st Amendment. If, they ask, corporate personhood had nothing to do with the Citizens United decision, then why “Abolish Corporate Personhood Now?” There are two reasons: First, if an amendment to overturn just the Citizens United decision is passed by Congress and ratified by the states, with all of the effort that would involve, and it only severs the relationship between speech and money (overturning both Citizen United and Buckley v. Valeo), then the current or some future reactionary, corporatist court could revisit campaign finance reform and use corporate “rights” in their rationale to allow corporate expenditures in U.S. elections. That would once again reject the will of the people to have free and fair campaigns as expressed by Congress. Just because corporate “rights” were not employed to legalize corruption in our elections under the Citizens United decision does not mean that they will not be used in the future. An amendment which clearly states that only humans are people under the Constitution would prevent that from ever happening unless it is overturned with another amendment.
The other reason to abolish corporate personhood in an amendment is obvious to anyone who has read Thom Hartmann’s Unequal Protection: How Corporations Became “People” — and How You Can Fight Back. Everyone, who has not read Hartmann’s book, is encouraged to do so for free on Truthout. Corporate influence in Washington, DC stems from their supposed “right” to lobby. Ending corporate personhood would level the playing field between large corporations and small proprietors, reduce their influence writing or rewriting legislation, eliminate the privacy they hide behind to control or manipulate markets, etc. Long before the SCOTUS decided on behalf of Citizens United and overturned 100+ years of legal precedent, there were plenty of reasons to abolish corporate personhood. Perhaps foremost among them is the fraud behind the case that, but did not actually, establish corporate personhood, Santa Clara County v Southern Pacific Railroad. (Hartmann points out that no Court or act of Congress ever formally established corporate personhood, but they have been getting more of our civil liberties.)
Hager and Leas effectively make the case that the Citizens United decision is Constitutionally flawed for two reasons. The second of these has to do with the fact that the Supreme Court…
…overruled a fully supported legislative finding that private money in elections causes sufficient harm to justify its regulation, even accepting the distorted view that money in the form of electioneering expenditures is the kind of speech the First Amendment was intended to protect.
By contrast, the public has a far more profound and compelling interest in preventing the death of representative democracy by allowing continued auction of its elections and laws to wealthy corporations. Corporations profit from the government policies and government contracts they receive in exchange for their payoffs to and for politicians.
However, Hagar and Leas do not recommend an amendment to overturn the bogus concept that money is a form of speech or any other amendment language. What they do recommend is contradicted by their own understanding about the other reason that the Citizens United case was flawed. Again, in their own words:
…the Roberts 5 stepped outside the court’s constitutional authority by taking up and deciding cases concerning election integrity. Maintaining the integrity of elections was a political question of such importance to the founding fathers who wrote the Constitution that in Article I, Sections 4 and 5, they specifically consigned to the elected Congress both regulation and judging of the manner of holding elections. The founders rightly understood that Congress would be far more subject to popular pressure to maintain election integrity than would the appointed-for-life members of the court. Taking up a case and overturning a law that provides for election integrity infringes a power specifically assigned to Congress, thereby undermining the separation of powers. This also violates the court’s own well-established precedent of refusing jurisdiction concerning political questions. The court followed this traditional rule defining the boundary between judicial and legislative issues from the 1803 decision in Marbury v. Madison until the Buckley decision in 1976. Every decision widening the gates to money in politics since Buckley, including Citizens United, has violated the same constitutional principle prohibiting court jurisdiction over such political questions.
This is vital to understand and a key component of the Human Rights Amendment, Section 3, directly addresses this issue. The SCOTUS has no Constitutional power to be deciding or even ruling on matters that concern federal elections. It is clear that the framers intended Congress, the representatives of the people, and not life-long appointed judges, to be in charge of federal election laws. It is clear and unambiguous in Art. I, Sections 4 & 5 of the Constitution:
Section 4: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators….
Section 5: Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide….
It would seem redundant to state in an amendment that federal elections are not to be regulated or determined by the Supreme Court, but it is clear that the Roberts Court is not concerned with matters of Constitutional power. They have usurped control of federal elections. This must be rectified once and for all, and that will require bold, decisive action.
What is the author’s strategy for overturning Citizens United? In a companion piece, Constitutional Amendment Not Needed: Congress Already Has a Remedy, James Leas spells out his prescription to remedy the Republic’s sick electoral system.
If the text of the Constitution, as written by the revolutionary leaders and the position of the court for 173 years regarding political questions, as well as the specific Article I powers assigned exclusively to Congress, are insufficient to persuade the reader of this article, consider the practicalities:
- A constitutional amendment requires a two-thirds vote in each House plus ratification by three-quarters of the states within seven years, an incredibly high bar.
- A law requires only an ordinary majority in each House to deny court jurisdiction over funding elections and to pass legislation removing private interest money from election campaigns.
Certainly, achieving an ordinary majority will be a difficult task. A mass movement, such as initiated by Occupy Wall Street but far larger, is needed to demand power for the 99 percent, equality and an end to rule by the 1 percent. As difficult as demanding and achieving ordinary legislation is with a Congress already corrupted by money in elections, achieving a constitutional amendment will be inestimably harder.
Although he is correct in arguing that getting the Constitution amended would be “inestimably harder” than getting legislation passed, but it would be only by 6 additional votes in the filibuster prone Senate. The pressure on state legislatures has already begun. The fatal flaw in Leas’ argument has to do with the target of his logic and facts. Unless “the reader of this article” are the corporatists on the Supreme Court, the most likely scenario that a bill passed by the majority in the House and a super majority in the Senate and signed by a president would accomplish is a power struggle between the legislative and the judicial branches of government. Congress alone can’t take back the power that they have lost; the American people have to get behind this effort. Pressuring federal and state representatives to pass and ratify (respectively) an amendment that reasserts Congressional power to regulate elections, end corporate personhood and overturn Citizens United would unambiguously convey to the SCOTUS that their era of usurped power is over.
Furthermore, an Amendment would be more permanent. A bill passed by Congress could not only be ruled unconstitutional by a Supreme Court, thereby instigating a Constitutional crisis; it could also be overturned by a future Congress hell bent on corporate rule and/or dependent upon corporate largess. Besides, ending corporate personhood would overturn 123 years of case law. That is not going to happen from Congress. Only we the people, working through our representatives and replacing uncooperative representatives, have the power to end corporate personhood. We have to do that and overturn the corrupt Citizens United ruling with an amendment. Reas is correct to argue that this will be much more difficult for the advocates of ending corporate political influence in the U.S. than passing legislation, but it is the more lasting and more effective approach to ending the corruption of corporate control of our polity.
We are most likely going to get only one amendment passed and ratified, so we have to get it right. Leas and Hagar make it clear that ending corporate personhood alone is insufficient. We also have to overturn Citizens United and return power to Congress as well. The Human Rights Amendment would accomplish those goals. Legislation would not.