Writing in the Brookfield Patch, Tom Kamenick wrote a scathing opinion piece in support of Milwaukee County Supervisor, Chris Abele, for his veto of a ballot measure that would have given voters the chance to support an amendment to the Constitution that would declare corporations would have no rights and that money is not speech. Kamenick, a lawyer and member of the Wisconsin Institute for Law and Liberty, takes issue with the effort to abolish corporate constitutional rights, and we will address each of his seven points.
First, because Kamenick writes as if he is oblivious of the history of corporate personhood, we will quickly point out that
the founders did not grant corporations any rights. Corporations are not mentioned in the Constitution. Instead, corporate lawyers began to attempt to exploit a loophole in the 14th Amendment to clamor for the rights protected in the Constitution and finally succeeded in 1889, Minneapolis and the St. Louis Railroad Co. v Beckwith, to attain the rights spelled out in that Amendment, due process and equal protection under the law. Since then, the Court has granted corporations 1st Amendment protections for their speech (1976), 7th Amendment guarantees of a jury trial in civil cases (1970), 5th Amendment protection against double-jeopardy (1962) and the 4th Amendment protections against search and seizure of property (1906).
Kamenick begins his piece:
Kudos to Milwaukee County Supervisor Chris Abele for vetoing the Milwaukee County Board’s attempt to put a referendum on the ballot calling for an end to corporate personhood.
Right. Stemming the tide of democratic participation and the people’s call to reverse bad, corrupt Supreme Court decisions is something to acclaim. Why would Kamenick be in opposition to grass roots’ efforts to strip corporations of the rights they should never have been granted in the first place? Well, he works for the Wisconsin Institute for Law & Liberty, a group its founder claimed “is tasked with the promotion of the rule of law, free markets, limited government and a robust civil society.” If that sounds pro-corporate, it should. WILL is reportedly funded by the Bradley Foundation, and according to Right Wing Watch, “Bradley contributes to conservative and often highly controversial scholarship, publications and “academic” research aimed at legitimizing far-right policy positions.”
Kamenick continued in his piece:
The 14 members of the Board who voted for it* and the liberal groups supporting it** are either (a) completely ignorant of basic constitutional principles, or (b) perfectly aware of how incredibly dangerous such a change would be, yet willing to pander to how ignorant they perceive their constituents to be.
Remember that. He is accusing others of being “completely ignorant of basic constitutional principles.” He continued:
As reported in the County’s press release, the resolution would have asked “whether the U.S. Constitution should be amended to establish that only human beings, not corporations, are entitled to constitutional rights, and money is not speech, and therefore regulating political contributions and spending is not equivalent to limiting political speech.”
Let’s focus on the first part of that*** – stripping corporations of constitutional rights. What effect would that have?
1) Nearly all major news organizations are organized as corporations. Having lost all their constitutional rights, they would now be subject to complete and utter government censorship and control. Any government – federal, state, or local, could ban all publication of any newspaper, shut down any TV news broadcast, prohibit political endorsements, or even dictate exactly what they said.
News organizations have the 1st Amendment right that cannot be abridged. Period. This is why MTA’s amendment language carves out that exception, but if the loophole in the 14th Amendment is properly sewed up, that exception is not even necessary. (See the Human Rights Amendment.) In other words, news corporations would not lose that right.“Congress shall make no law …abridging the freedom of …the press.” That is a right the press possessed before “juriscorporatists” on the Supreme Court began granting corporations constitutional rights 123 years ago. The form, the structure, that any news organization takes, corporate, partnership, etc. is moot!
2) Most religious institutions are organized as corporations. The Constitution currently protects not only individuals’ freedom of religion, but religious institutions’ freedom of religion. That would be thrown out the window if those corporate religious institutions had no rights. Don’t like Mormonism? Scientology? Christianity? Shut down their churches. Politicians could regulate worship services anyway they liked.
3) The Constitution gives people the right to be free from unreasonable searches and seizures. Generally speaking, cops need a warrant in most circumstances to search your home – or your business (at least after hours or in places not open to the public). But what if we take constitutional rights away from corporations? The police could search any corporation’s property at any time, for any reason (or no reason at all) with impunity.
4) The Constitution also says that government can only take our life, liberty, or property by using due process of law. Except if a corporation has no constitutional rights, government can take corporate property at any time, with no due process, without compensation. Government could also revoke corporate charters (the “life” of the corporation) at any time, for any reason, without due process.
5) Nonprofit organizations are corporations. Would you want the Sierra Club, the NRA, NARAL Pro-Choice America, Americans United for Life, and every other nonprofit advocacy group stripped of the right to speak on their issues of concern? Subject to destruction by politicians who disagree?
6) Unions (both public and private) are corporations. They would be subject to all the same abuses listed above.
7) PACs themselves – the basic political organizations “not affiliated with any candidate or candidate’s committee” and subject to the disclosure, registration, and fundraising limitations that “Super PACs” typically aren’t – are corporations as well. This constitutional amendment would pare back the right to engage in any kind of political advocacy to individuals alone. Rich individuals have a lot of clout under the current system, yes, but at least people of like minds can pool their resources together to combat the speech they don’t like with more speech. That pooling would become a lot more difficult – if not completely impossible – should corporations be stripped of their right to speak on political matters.
Kamenick shows his corporate colors in the piece when he claims:
What’s really scary is any level of government would be able to exercise this tyranny over corporate entities. Have you seen how petty, controlling, and vindictive the governing boards of some small towns (and even bigger villages and cities) can get? Is that really the kind of power you want to put in the hands of government officials? For people who fear what Republicans might do to unions, this should be particularly frightening.
Kamenick falsely claims that…
This amendment isn’t about the rights of corporations per se. It’s about the rights of individuals to join together in a corporate form without losing their constitutional rights. People joining together as corporations are still people. I would never willingly give up those rights, and I hope better education will help people understand that by supporting such a constitutional amendment they are stripping themselves of many, many rights.
No one would lose their constitutional rights when they join a corporation if corporations had no rights. We hope that better education will help people understand that by supporting such a constitutional amendment, they are NOT stripping themselves of any rights. Kamenick does not understand that corporations are not people; they are properties. They are not individuals; they are charters.
Kamenick finishes with this deceitful question:
…But the solution to speech you don’t like isn’t to ban that speech – it’s to engage in more speech. Whatever happened to “I disapprove of what you say, but I will defend to the death your right to say it”?
Well, most people are referring to people by the word “you,” not properties (corporate charters). Anyone willing to die defending a corporate charter’s right to “say” whatever is a fool and a corporate tool. Speaking of tools, in the comment section of this opinion piece, he quotes an “excellent article” by Ilya Shapiro, whose testimony to the Senate subcommittee on the Constitution, Civil Rights and Human Rights was criticized here, and Caitlyn McCarthy. Kamenick quotes from the abstract on that article:
Much of the criticism of Citizens United stems from the claim that the Constitution does not protect corporations because they are not “real” people. While it’s true that corporations aren’t human beings, that truism is constitutionally irrelevant because corporations are formed by individuals as a means of exercising their constitutionally protected rights. When individuals pool their resources and speak under the legal fiction of a corporation, they do not lose their rights. It cannot be any other way; in a world where corporations are not entitled to constitutional protections, the police would be free to storm office buildings and seize computers or documents. The mayor of New York City could exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there. Moreover, the government would be able to censor all corporate speech, including that of so-called media corporations. In short, rights-bearing individuals do not forfeit those rights when they associate in groups.
Shapiro, a libertarian from the corporate-backed Cato Institute, is lying when he claims here “[i]t cannot be any other way.” It used to be differently. For the first 100 or so years of this Republic, corporations did not have the rights that “juriscorporatists” on the SCOTUS have granted them. We’ve already addressed the baseless fear-mongering about the state seizing property or documents. He was correct, though, to claim that corporate speech could be censored if it was not protected by the 1st Amendment. That is a good thing for reasons explained here. We do not want artificial persons (corporations) free to lie, something the 1st Amendment protects.
Shapiro was also correct when he claimed that “rights-bearing individuals do not forfeit those rights when the associate in groups,” but the group itself is another metaphysical matter that can be summed up with the simple statement: corporations are not individuals. A lawyer with a conscience or a lick of common sense would be able to differentiate between real individuals and artificial ones. Kamenick? Not so much.