One of the most common objections against the idea of abolishing corporate constitutional rights, which would empower Congress to bar for-profit corporations from engaging in “electioneering communications,” is that media corporations such as Fox, MSNBC, USA Today, et al, have the right to use company money to broadcast or publish political views and support for or opposition to candidates for office. Critics argue that it would not be fair to limit which corporations should be free to broadcast their political perspectives. These objections convey a weak comprehension of the 1st Amendment.
The Constitution of the United States was created by the Framers to maximize the liberty of and security for the citizens of the new nation. The Bill of Rights was added to protect “we the people” of a minority from any possible tyranny of the majority. All of these rights are intended for individuals.
However, one could argue that there are two exceptions provided in the 1st Amendment which spells out two specific rights that could be misunderstood to be institutional rights. It reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Although religions are inherently collective activities, the “free exercise” of religion is undertaken by individuals, humans, not the bodies of any faith. It does not matter if a church, synagogue, mosque or temple is an ad-hoc gathering, a sole-proprietorship, a periodic gathering of the faithful or a corporation with limited liability. Congress and – because of the Incorporation Doctrine – state legislatures cannot prohibit the exercise of religion in any form. The abolition of corporate rights in a constitutional amendment would not trump this fundamental freedom of individuals any more than it would prevent someone with property rights to own stock in a corporation that would no longer have constitutional rights.
The same is true with “the press.” Congress and the states cannot abridge the freedom of the press, an activity that is usually collective in that it is rare for one person to be able to handle the writing, editing, gathering of printing materials, mass production of a newspaper or network news organization and distribute the product by him or herself. The Internet has made the press, i.e., news and politics oriented blogs and websites, more likely an individual activity; but the press is still largely an effort of many individuals working together with their right to being “the press” unabridged as individual persons.
Several of the proposed amendments introduced in Congress to overturn the Citizens United Supreme Court decision, which allowed corporations to influence election outcomes, would abolish so-called “corporate personhood.” This phrase describes the constitutional rights that the Supreme Court has granted to corporations (properties) over the last 124 years beginning in 1889 with the 14th Amendment rights of due process and equal protection under the law. The abolition of corporate personhood means that these properties would have privileges, not rights.
The question then arises: would the abolition of corporate rights prohibit the exercise of religion or abridge the freedom of the press if the religious body or unit of the press were organized as a corporation? This is a significant enough of a concern that the amendments proposed by Sen. Sanders and Rep Deutch as well as the one introduced by Rep. Donna Edwards to overturn Citizens United had sections to explicitly restate the 1st Amendment prohibition against abridging of the press. Section 2 of Edwards’ proposed amendment reads “Nothing contained in this Article shall be construed to abridge the freedom of the press.”
Move To Amend’s language, introduced into the House on February 11th, 2013 by Representatives Rick Nolan (DFL-Minnesota) and Mark Pocan (D-Wisconsin), is the only language currently on the Hill that would abolish all corporate rights (corporate personhood) and end the legal doctrine that the spending of money is protected as a form of speech.
The language does not have any special provision to protect freedom of the press, and it does not need it. The argument here is that it is not necessary because this particular freedom is already protected by the 1st Amendment. It does not matter whether the free press and freedom of religion is interpreted correctly as the rights of individuals or incorrectly as the rights of institutions (that may be incorporated). Either way, the activities are protected!
Not everyone engaged in this debate, from the hall of Congress to the living rooms of ordinary Americans, will fully understand this argument and comprehend that religious bodies and the press are rights of individuals and would still be protected by the 1st Amendment in the aftermath of the abolition of corporate personhood. Therefore, it may be useful to have every amendment proposal that abolishes corporate constitutional rights to include a section that reads something along the lines of “Nothing contained in this amendment shall be construed to abridge the freedom of the press or prohibit the free exercise of religion.” This would remind all people that, incorporated or not, the press (reporters, editors, distributors, etc.) and the members of all religious organizations are exempt from the abolition of corporate rights as they have been since the ratification of The Bill of Rights. It may be useful, but it is unneccessary.