In a piece published on Salon.com last January, author Steven Rosenfeld attempts to convey some “hard truths” about the Citizens United decision which set off a movement to abolish corporate Constitutional rights. The following will address many of his claims, statements and assertions about that decision and whether abolishing corporate personhood would go too far, not far enough, etc. Rosenfeld’s words will be in block quotes.
The movement to overturn the Supreme Court’s controversial Citizens United ruling and confront the doctrine of “corporate personhood” stands at a perilous crossroads.
This much, Rosenfeld is correct about. To date, only progressives such as Rosenfeld are taking the movement to end corporate Constitutional rights seriously. That may be about to change.
Across the country, two distinct strategies are converging on Congress…The two approaches can be seen in the protest signs and sound bites proclaiming, “Money is Not Speech” and “Overturn Corporate Personhood.” But these slogans are not calling for the same remedy, especially when transformed into legal language in 10 proposals that have been introduced in the current Congress.
Overturning the doctrine that money is not speech is an effort to end American plutocracy, and abolishing corporate right is an effort to end American corporatocracy. These efforts are related in that they seek to level the playing field in Congress, state houses and in elections between the wealthy (companies) and the people this government was created to secure.
These two approaches expose an emerging split among progressives with deeper problems that go beyond the steep if not improbable political climb required to adopt any constitutional amendment: passage by two-thirds of Congress followed by ratification by three-quarters of state legislatures.
With a few exceptions, the growing movement to overturn Citizens United and revoke corporate personhood is not being taken seriously beyond America’s liberal communities. The guardians of American capitalism—the U.S. Chamber of Commerce and Republican National Committee—do not even feel a need to attack it…
George Will felt the need to address this movement recently, and it has been discussed on Fox, the propaganda channel for Corporate America. The guardians of corporate control are beginning to wake up to this growing movement.
Corporate America’s assessment that this activity is not yet a serious threat to their power is also shared by another key sector of the progressive spectrum. Many of the country’s top liberal constitutional scholars have been silent, as this bandwagon has gathered momentum. They sympathize with its goals but think its champions are not only overpromising to grassroots supporters but have not thought out what they want Congress to do. Nor do they think the frontline voices have done a good job explaining what is at stake beyond hurling bumper sticker slogans. In other words, they reach the same conclusion as America’s corporate titans: this clamor is not yet poised to upend the law behind America’s political system.
Nobody is “overpromising to grassroots supporters.” It’s widely understood that in the immediate aftermath of the ratification of an amendment that overturns 123 years of Supreme Court judges un-democratically conferring rights onto property (corporations), nothing will change. Their rights will become privileges that Congress and legislatures will get around to regulating with rules of conduct to define abuse of privileges and punishment for stated abuse.
“I am really excited about the fact that there is so much public interest in this stuff and on the right side—the visceral sense that the Supreme Court has got it wrong,” said Dan Tokaji, co-editor of Election Law Journal and an Ohio State University professor of law. “But at the same time I’m uncomfortable with the bumper sticker-like critiques. It’s not like there’s a magic bullet. Every solution has a downside. It’s a matter of weighing costs and benefits. And that is especially true in campaign finance reform.”
The cost of allowing corporations to continue having rights granted to and exercised by dominating, powerful and wealthy transnational corporations, entities so frightening in their scope and influence that none-other than James Madison considered them to be evil, is the end of democratic control of the Republic. The benefits will outweigh the costs by far.
“We are doing movement building in order to win a constitutional amendment within a decade,” said David Cobb, the 2004 Green Party presidential candidate and board member of the Move To Amend coalition, which has led much of grassroots organizing. “We have a meta-perspective about what is going on, but we also have a sense of movement history; in recognizing what it takes to actually get a lot of people in motion demanding systemic change. Our call is no more radical or will be no more difficult than the abolitionist movement, the women’s suffrage movement, trade union movement or the Civil Rights movement.”
“They’re good people and their heart is in the right place, but they’re not being helpful—as a matter of fact, they are doing damage,” said Ben Price, project director of the Community Environmental Legal Defense Fund (CELDF), which has helped 130 municipalities in a half-dozen east-central states–—including the city of Pittsburgh, Pennsylvania–local anti-corporate ordinances in environmental fights. “They won’t bring the outcomes that are needed.”
This is pretty arrogant speculation. Fact is, we don’t know with certainty what outcomes will come of this. We know, for example, that corporations that use their wealth to fund propaganda or shape policy (promoting hydrofracturing for gas for example) can have their privilege revoked in theory. This will not undermine local efforts of the CELDF; it will strengthen their efforts vis-a-vis the corporations moving toward actions that threaten the environment, worker safety, etc.
“We don’t think that is the right strategic move at this time because it will be overturned,” Cobb said, when asked why his coalition’s members do not pursue CELDF-style changes in law, citing his own experience in Humboldt County, California, where a county ordinance was reversed in federal court. “And why will it be overturned; because corporations have constitutional rights, according to the federal district courts and U.S. Supreme Court. The ultimate win has to result in a constitutional amendment.”
This debate—to go narrow or to go big; to focus in Washington or in the states; or what is the relationship between divergent strategies—has not been heard on the airwaves as Americans see the big-spending excesses in the first 2012 presidential contests and as many liberal public interest groups focus on the anniversary of the Citizens United ruling. But it is a vast middle ground that is not esoteric or fruitless.
It has not been heard in part because it’s being drowned out by corporate noise and a loud campaign for President which has ignored the subject to date.
…what loopholes do people want to let slip into the latest reform proposals in Congress—since every amendment proposed thus far contains exceptions giving a way for people with the means to monopolize the microphone? Does it matter that groups representing communities of color, like the NAACP, could lose their rights to run as a non-profit corporation which includes the right of assembly and to speak on behalf of its members? Should property owners lose a constitutional due process right to sue if the government seizes their property?
Not every amendment proposed so far contains exceptions, but to be fair, Rosenfeld has probably not read every proposal currently floating around. His second question is an important one to consider: the NAACP would have the privilege to speak for its members but could lose that privilege if it abused it by running advocacy ads for a candidate during elections for example. Also, Congress could pass laws to protect certain privileges of non-profit groups as needed. An example would be the membership list of the NAACP. Congress could amend the Civil Rights Act of 1964 to ensure that the membership lists remain private as a protected privilege. That is how to deal with the few cases where abolishing corporate rights “goes too far.” His final question is moot and scare-mongering: property owners (stock holders) would still be protected from seizure by the Fourth Amendment and by the Dartmouth College v Woodward decision.
Democracy’s Nemesis: The Supreme Court
Today’s rules for raising and spending campaign cash go back to the post-Watergate era when Congress decreed that campaign donations and political spending could be regulated. With a few temporary exceptions, since 1976 the Court has been rolling back that proposition. In 1976, the Court held in Buckley v. Valeo that spending money was a form of political speech—not conduct—entitled to the highest First Amendment protection. Buckley ended congressional and state limits, and enabled wealthy individuals to spend unlimited sums from their own pockets in their runs for office. But that was just the beginning. In 1978, in Bank of Boston v. Bellotti, a case involving a Massachusetts ballot referendum, the Court held that corporations could spend money in non-candidate elections…
Buckley was a power grab by the SCOTUS and a clear example of legislating from the bench. First, the framers gave Congress the power to regulate elections in Article 1, Section IV of the Constitution. That power needs to be returned to Congress with an amendment stating as much. Buckley was legislating from the bench because nowhere in the Constitution is it stated that money is a form of speech. They were not protecting the Constitution; they were safe-guarding plutocracy! Overturn Buckley, and Bank of Boston and Citizens United will fall like dominoes by the wayside.
The Court is not unable to distinguish corporations from people as many activists assume. The Roberts Court ruled in 2011, without dissent, that corporations are not entitled to a personal privacy right exemption to block Freedom of Information Act requests. Chief Justice Roberts, who wrote the opinion, concluded by saying the justices “trust that AT&T will not take it personally.” But this was not a constitutional decision. And in elections, the Court has blurred the distinctions between corporate and individual participants.
It is recognized that corporations have not (yet) been granted all human rights or even those listed in the Constitution’s amendments. The principled point is that corporations are property and should have no rights. Rights are for people; privileges are for corporations.
In Citizens United, the Court turned a relatively narrow case into a giant leap forward for corporate electioneering. The ruling did a handful of things. It first struck down a prohibition that barred broadcasting a certain type of political ad—almost always negative and from sponsors who barely identified themselves—in the 60 days before an election. That provision in a 2002 campaign reform law tried to elevate political debate. It then overturned parts of prior Supreme Court rulings that said independent corporate spending could be regulated. Thus it undermined a century-old regime barring direct corporate participation in elections, elevating corporate political rights to the same level as those of citizens.
This is why we need a giant leap forward for We the People and amend the Constitution to declare, at least, that corporations have no rights and that money is not a form of speech or any other human right. It would not hurt to add that elections are for individuals and parties and all special interests need to be barred from participation in them.
Too Little, Too Much
The amendment proposals fall into two categories with some overlap in between. The first group takes a legislative empowerment approach. They seek to return the campaign finance landscape to pre-Buckley days, stating that Congress and the states have power to regulate the raising and spending of money in elections. Proposals by Rep. Donna Edwards, D-Maryland, on the House side, and Sen. Tom Udall, D-New Mexico, on the Senate side, take this route. In other words, they seek to reclaim the power to regulate campaign spending away from the Supreme Court.
The opening clause in Edwards’ proposal, “Nothing in this Constitution shall prohibit Congress and the States,” is very important, Tribe said, because it specifically tells the Supreme Court how the Constitution is not to be read. “Proposals that merely affirm legislative power to enact spending caps on corporations or individuals,” Tribe pointed out, “could well fail to achieve their objectives because they don’t directly address how the Supreme Court has read the First Amendment’s restrictions on such legislative power.”
The Edwards Amendment does what Rosenfend explains and little more. It does not abolish or even curtail the rights of properties (corporations) or end the doctrine that money is speech. It is a band-aid attempting to mend the gaping slash the Roberts Court sliced into the side of democracy in America. Rosenfend addresses this too.
…Edwards’s language does not necessarily address some recent political trends that did not exist when Buckley was issued. Supposedly “independent” spending by very rich individuals, such as Sheldon Adelson’s recent $5 million gift to a super PAC supporting Newt Gingrich, would not be limited by her proposal because it would only limit “funds for political activity by any corporation.”
Until Buckley is overturned, American elections will be struggles between plutocrats like Adelson and Romney’s team of donors.
Another legislative empowerment approach is a bipartisan proposal from Rep. Walter Jones, R-SC, and Rep. John Yarmouth, D-KY. It would allow limits on people or groups who might seek to monopolize political microphones and also would revive public financing. It seeks to close a loophole that emerged after Buckley where political groups evaded regulation by raising issues associated with the candidates, instead of specific words urging their election or defeat. It also says Congress can create a “mandatory public financing system” and it would make Election Day a holiday.
The second type of amendment proposals—most notably identical measures from Rep. Ted Deutch, D-FL, and Sen. Bernie Sanders, I-VT, a like-minded measure from Rep. Jim McGovern, D-MA, and another from Rep. Keith Ellison, D-MI—seek to address the distinct issue of corporate personhood by declaring, as in the McGovern proposal, “the rights protected by this Constitution to be the rights of natural persons.”
These proposals have been analyzed by ACPN board member and author of the Human Rights Amendment, Paul Westlake. He’s created a chart to aid quick analysis of Yarmouth, Sanders and 14 other amendment proposals in terms of what they would and would not accomplish. This can be seen clearly here and as follows:
These measures, in varying ways, would strip corporations and other business and possibly charitable entities of their constitutional rights—and not just those pertaining to election spending or even under the First Amendment, although most of them make exceptions for “freedom of the press.” The most detailed language is in the Deutch-Sanders proposal. It has been won the support of most progressive groups.
The Deutch-Sanders proposal goes on to ban “corporate and other private entities” from contributing or spending money “in any election.” Like the first group of proposals, it also grants Congress and states “power to regulate and set limits” on campaign donations and spending. By explicitly targeting profit-seeking corporations and their promoters, it carves out an exception for non-profits—a distinction not made in McGovern’s proposal and most of the grassroots advocacy.
The Deutch-Sanders proposal also carves out exceptions for unions. The problem with such exceptions is two-folded: in accordance with the Constitution, only individuals have rights including the right of associations. Those associations of persons become a faction, and they have no inherent rights except for the rights held by the individuals in the group. The other aspect of this is a calculation in the brutal math of amendment ratification. If an amendment comes out of Congress that is seen as favoring one side and not the other, favoring for example unions over corporations, then it will be perceived as partisan or ideological (blue, liberal or progressive). To get the legislatures of 38 states to ratify an amendment, it will have to be non-ideological, neutral in a political sense. The struggle is for a democratic union, not for a shift in ideology.
Proposals from two leading grassroots groups, Move To Amend and Free Speech For People—reflected in the McGovern proposal—would strip constitutional rights from all corporations, for-profit and non-profit. That provision, were it in effect during the Civil Rights movement, could have stopped the NAACP from operating. That very issue—did the NAACP, as a non-profit corporation, have First Amendment rights to assemble and speak for members—arose in the famous 1963 Supreme Court case and ruling, NAACP v. Button, a where the affirmed the NAACP’s First Amendment freedom to assemble and speak.
All individuals, regardless of purpose,(1) cause or ideology have the right to assemble and speak. The NAACP would have the privilege to speak on behalf of its members just as Citizens United would. Again, they could lose that privilege if they abused it by participating in elections, violating laws or running deceptive ads on televisions outside of election time frames.
These kinds of consequences and issues are not too complicated to discuss or understand. They should be the staple of progressive talk radio shows, but mostly they are not. Instead, progressives driving the anti-Citizens United and corporate personhood bandwagon are not being specific enough to threaten the big money forces in America. Instead, they risk alienating supporters by overpromising—like Obama.
They should be the staple of all talk radio shows, no matter what the ideology of the host. Even corporatists could invite a member of Move to Amend or ACPN to discuss this, and they had better know their talking points.
“To focus on the fact that corporations are not technically people seems to be missing the point,” said Tokaji, Election Law Journal’s co-editor. “It’s really less focused on who’s a person and who’s not, than on the fact that certain big money interests are able to drown out other voices in the political conversation.” To Tokaji, the most promising avenue is exploring how public financing can be revived under the current Court—especially since it did not reject it in wholesale fashion in the Arizona case. “If we want to talk about what meaningful reform can be accomplished given the constitutional doctrine we’ve really got, I think we are talking about public financing.”
In some circles, there is a chicken and egg debate between the need for public financing and the need for an amendment. Public financing of elections would help level the playing field among campaigns, but it would do nothing to deal with the influence of corporate America in Washington. Abolishing corporate Constitutional rights would help level the playing field in a broad legal sense.
There is one other key piece of this discussion getting lost in the growing momentum behind proposals in Washington. That is what action can be taken in the states beyond sending e-mail blasts and resolutions to Congress telling them to act. It is incorrect to suggest that nothing short of a constitutional amendment, reconstituting the current Supreme Court, and electing a new congressional majority will have any meaningful impact—and isn’t worth trying.
Actions at the state level could be taken, said Erwin Chemerinsky, founding dean of University of California Irvine School of Law and a respected constitutional scholar. Beyond passing more disclosure laws that report political spending, states could require shareholders to approve corporate political expenditures. “These kinds of laws have been adopted for unions. It’s time to do it with regard to corporations,” he said.
This would required 50 different fights in 50 states. As challenging and formidable it is to amend the Constitution, a concerted effort to get that done would, in our view, be less of a headache than the “whack-a-mole” strategy of dealing with mobile corporate capital. We need a national response to a nation under duress from corporate and plutocratic money in elections and in capitals.
Another idea is legislation barring a state contractor from spending money for partisan election activities, much like the federal Hatch Act of 1939 limiting federal civil servants from a range of partisan activities. “There are a number of legislative things that can be done to lessen the ill effects of Citizens United,” Chemerinsky said. “The legislative changes are a lot more realistic than a constitutional change.”
The laws can also be thrown out by a SCOTUS hell bent on keeping the government of the corporate wealthy, by the corporate wealthy and for the corporate wealthy. Bad Supreme Court decisions are historically overturned by citizens organizing mass movements to amend the Constitution to overturn those decisions. This has already been addressed here.
The Community Environmental Legal Defense Fund’s Price said today is a rare historic moment and worries that too much oxygen is being consumed by the focus on a federal amendment in Washington and not on changing local and state laws—or even state constitutions. After a half-hour interview, he offered a personal plea that deserves to be heeded by all in this progressive movement.
“The liberal progressive line—and I have been there most of my life—sees a victory as being on the side of the angels, whether or not you actually create outcomes. I am tired of moral victories. I want some real ones.”
We can be on the side of angels and attain real victories. What would help is to have more people realize that principled conservatives, those libertarians, who understand the purpose of the Constitution, and moderates, who do not deem themselves as “liberal” or “progressive,” but “who know very well what is wrong with American politics” are all going to be part of this movement if the Constitution is to be amended. If this is just for liberals and progressives, then we’re wasting our time. Pulling our Republic back from the plutocrats and corporations is an American project, and it would be nice if liberals and progressives would get on board as the second step needed as part of a broad-based movement demanding a democratic order where corporations are in place to serve the people and not the other way around.