“I would think that any particular form of organization upon which the State confers special privileges or immunities different from those of natural persons would be subject to like regulation, whether the organization is a labor union, a partnership, a trade association, or a corporation.”
~~former Chief Justice William Rehnquist
In his dissent of the First Bank of Boston v Belloti case, 1978
In an essay available on the Social Science Research Network, Richard Hasen, Chancellors Professor of Law and Political Science at University of California at Irvine, offers a draft of a paper, “subject to further revision,” to be submitted to forthcoming “Elections in America” symposium issue of the Harvard Law and Policy Review. Entitled, “Three Wrong Progressive Approaches (and one right one) to Campaign Finance Reform,” Hasen takes issue with the effort by Senators Tester and Murphy to amend the Constitution and specifically Move to Amend’s “We the People” proposed amendment language.
Two of the three “wrong progressive” ideas that Hasen criticizes are easily accepted, i.e., paying lip service to reform and throwing in the towel. Neither of these are particularly “progressive,” while the latter is a posture relatively close to Hasen’s supposed “right one.” Hasen claims that amendments introduced into Congress by “Democratic elected officials” are “political theater and not serious attempts to deal with problems of campaign finance regulation.” That may be so, but he’s making an assumption that Senators Tester and Murphy are not serious about a matter that transcends mere campaign finance reform (CFR) and addresses the crux of an array of problems. Their amendment aims to overturn Citizens United by abolishing the rights of corporations, granted to them over the last 124 years by corporate-oriented Supreme Court justices. For Hasen to argue that their effort to amend the Constitution is disingenuous is presumptuous at best. There certainly is political theater and fund-raising in the Senate over amendment responses to Citizens United, but not from Senators Tester and Murphy.
Hasen conveys the entire We the People Amendment (WTP), composed by Move to Amend and introduced into the House (he fails to mention) as HJR29, and suggests that its aim “may well be” an effort at ”riling up the Democratic and progressive base.” Hasen is clearly misinformed and ignorant of the extent of the support this idea has gotten in ballot measures across the entire political spectrum in the U.S. During the Republican primaries in 2012, the WTP measure was placed on the ballot in conservative West Ellis, WI and received a solid 70% support! The American people understand that Citizens United was a horrible decision destructive to the democratic fabric of American democracy, and they want it, and the bases of that decision, overturned by constitutional amendment. The people are riled up, and they are the majority of Democrats, Independents and Republicans.
Hasen proceeds to take the amendment proposal at “face value” and goes on to “evaluate them against progressive ideals.” That is his second mistake. Progressive ideology has little to do with restoring democracy in America. Abolishing corporate rights and overturning Citizens United is trans-ideological. There are several reasons why principled conservatives and libertarians, for example, should support the abolition of corporate constitutional rights. The purpose of the We the People amendment is to restore the democratic foundation of the American Republic and to rectify the “inverted totalitarianism” of corporate influence in Congress, the courts and in state legislatures.
Hasen’s lack of understanding of the purpose of the amendment proposed by Move to Amend (along with the Human Rights Amendment for that matter) is conveyed in this paragraph:
No doubt a constitutional amendment could be written simply to “reverse” Citizens United. Such an amendment could say that Congress has the power (and perhaps state and local government also have the power) through appropriate legislation to ban corporations (and presumably labor unions) from spending their treasury funds in candidate elections. However, it is not clear that such an amendment would make much difference. Under such an amendment, Sheldon Adelson or George Soros could still give millions of dollars, much of it anonymously, to groups seeking to influence federal elections. Citizens United and the development of Super PACs seems to have had a psychological effect in freeing individuals to give obscenely large sums to these outside groups.
Both the We the People Amendment and the Human Rights Amendment would return the power to regulate spending on campaigns to Congress and the state legislatures. The reason “it is not clear that such an amendment would” prevent wealthy individuals from donating large sums is because it will be up to legislatures to limit donations by individuals to an amount that curbs plutocracy and empowers the average contributor. An amendment — and the entire Constitution — is the basis for legislation, not the laws themselves. Without inscribing in the Constitution that money spent on electioneering communication is subject to legislative regulation, Congress cannot constitutionally limit spending by individuals or adequately regulate the manner of elections as the Framers intended. That is the point of overturning Buckley v. Valeo, which in turn will undermine the Citizens United decision since Kennedy, who authored that decision, primarily used Buckley as the basis for his decision.
Hasen continues: “Even putting aside huge individual spending, an amendment, depending on how it is written, could allow for a great deal of corporate-funded “issue advocacy” intended to influence the outcome of elections but falling outside its coverage.” The footnote to that point reads: “If the amendment is drafted more broadly, it runs the risk of interfering with genuine issue advocacy by corporations mentioning the names of federal candidates.”
Depending on how it is written? Hasen quoted the WTP Amendment. He knows how it is written; the better question is how the amendment will be worded if and when it is passed, eventually, in corporate dominated Congress. Hasen also does not distinguish between for-profit corporations and not-for-profit corporations, and that matters in the aftermath of the abolition of corporate rights. When artificial entities lose their constitutional rights, the rights that the Court has granted them over the last 124 years will become privileges that can be protected, regulated or revoked should a legislature or Congress so decide. Under this legal framework, Citizens United would be able to run advertisements for Hillary, the Movie, but not during a time frame before a primary or general election as the Bipartisan Campaign Finance Reform Act of 2002 established. “Issue advocacy” could flourish in the U.S. as regulated by We the People through our elected officials under CFR. Campaigns for elected office should be about the candidates, not special interests; but that will be up to how Congress shapes elections in CFR in a post-amendment legal setting.
Ignoring the real problem with CFR
During Hasen’s review of campaign finance law, he covers the case where the Court usurped Congress’ power to regulate spending on campaigns for office. He wrote that:
…limitations on spending by individuals supporting or opposing candidates, or by the candidates themselves, violated the First Amendment’s protections of speech and association. (The Court held that independent spending cannot corrupt candidates because of the absence of coordination, and that political equality was an impermissible governmental interest in light of the First Amendment.)
Buckley v Valeo was cited in the footnotes, but Hasen does not take issue with that decision or appear to notice that Section II of the We the People Amendment specifically overturns that decision. Hasen expressed another concern when he posits that…
…it is not clear that language in a constitutional amendment “reversing” Citizens United would adequately protect the incorporated press (such as The New York Times or FOX News) and non-profit ideological corporations which the Supreme Court had protected before Citizens United.
Hasen has expressed this baseless fear elsewhere. Once an amendment abolishes corporate constitutional rights as both Senator Tester and the Move to Amend coalition intend, the 1st Amendment’s protection of freedom of the press will continue to protect the individuals of the press, not the freedom of the business corporations, associations, partnerships, etc. functioning to support the individuals’ constitutionally protected activities. Campaign regulations could with regulations proscribe Fox News Inc. from running campaign ads for the Republican candidate for president or Congress on CBS, ABC, CNN or any other television channel. Likewise, MSNBC, Inc. would not be free to run campaign ads for the Democratic candidate for president or Congress on other channels. Paid staff members and consultants of these channels could, as individuals of the press, appear on another channel to make their case for a candidate, but all corporate spending on electioneering communication could be outlawed after the We the People Amendment is ratified by the 38th state without any impact on the individual freedom of the press as it has been traditionally understood.
Then Professor Hasen raises a straw-man argument regarding the abolition of corporate rights that has been debunked previously. He writes that the…
Tester-Murphy would take away all corporate rights—for all corporations (including presumably media corporations and nonprofit corporations) and for all purposes. For example, the government might be able to take property from corporations without paying just compensation otherwise in violation of the Fifth Amendment.
The government would not be able to take property from corporations without paying just compensation for two reasons: 1) corporations and their capital (excluding so-called “human capital”) are the property of stock holders, and those individuals would still have their right to own that property. Furthermore, and it is rather shocking that a professor of law would not understand this, 2) overturning the 124 years of corporate-oriented case law decisions that granted corporations the rights of We the People would not overturn Trustees of Dartmouth College v Woodward (1819). That decision would still be the law of the land, and in the aftermath of corporations losing their constitutional rights, they would still have their charters, contracts in the view of the court, protected. Just as New Hampshire was not allowed to appropriate Dartmouth College, the government would still not be able to take property from corporations without just compensation.
Hasen goes on to claim that “Citizens United might be bad for our democracy, but [theTester amendment and the We the People Amendment] look like a cure worse than the disease.” The disease is “inverted totalitarianism” to use political philosopher Sheldon Wolin’s apt phrase, i.e., a state of the corporations, by the corporations and for the corporations. Wolin notes that this leaves “the poorer citizens with a sense of helplessness and political despair….” Abolishing corporate rights would restore their secondary role in American society and more important, in our polity, by making people with rights primary. The disease is neo-feudalism, and it has replaced Republican government.
He concludes by arguing that the…
… problem goes beyond drafting and to the larger issue of placing broad power to control political speech in the hands of “Congress and state and local governments. A constitutional grant of broad speech-limiting power will be hard to cabin and is risky given that we do not know what future generations will bring.”
First, it’s not political speech that Congress would have the power to control, but spending by artificial entities and their wealthy elites. Even if Congress enacted comprehensive CFR that favors one ideology over another, not only would the content-based restriction still be unconstitutional, the backlash would be certain. Bad Court decisions tend to stand for decades and generations, but a bad law can be overturned by the people’s body (Congress) after one election cycle as the Framers intended.
Next, the power that the MTA would foist upon Congress and the state legislatures is power that they were given by the Framers in Article I, Section 4 of the Constitution. It’s the Court that usurped that power beginning with Buckley and continuing with Citizens United and AZ Free Enterprise Club. Why “progressive” Hasen has an issue with the effort to restore that power to its rightful place is difficult to comprehend.
Seeing the Field through the Weeds
Hasen is so entangled in the weeds of recent case law that he seems to have lost sight of the surrounding field., a one-time Republic that has decayed, in large part due to Court decisions, into corporate feudalism. The corporate state and “empire” that our beloved United States has become would not be recognized by our Founders. In no legal category is that more certain than in the legal status of corporations in this polity. Hasen may have forgotten the Dutch East India Company but the Founders surely would not were they still around. Civil rights were never intended for corporations, but these rights are now exploited by transnational and other giant corporations to tilt the already slanted legal, economic and political fields even more in their direction. Given the extent of the state’s access to our online and public lives, the structure of authoritarianism has been prepared for easy identification of movement leaders, anti-corporate activists and other dissidents. (It is already reported that other federal agencies want access to the data that the NSA is gathering, and the DEA has had access for years!) Move to Amend is challenging the corporate theft of individual human rights and aims to restore a government of, by and for the people, natural persons. Nothing less than the democratic future of our Republic is at stake.
Hasen’s supposedly “right” approach
Given the legal and military drift toward “empire,” inverted totalitarianism and corporate feudalism, Hasen’s preferred approach to Citizens United is cringe-worthy. It can be summarized as argue, wait and hope. That’s not progressive; it’s liberal reform at its weakest! Genuine progressives challenge corporatism and plutocracy. True progressives begin with the Constitution and its principles and then view case law with a critical mind to ask if the decisions, both in theory and practice, support or undermine those principles.
He argues that…
But more work needs to be done in the jurisprudence arena. The key is to lay the groundwork for the Supreme Court to reverse Citizens United and other cases, returning to its role of carefully balancing rights and interests in this very difficult arena. There will come a time in the not too distant future when Justice Scalia or Justice Kennedy will leave the Court, and if a Democratic President appoints their successors, the Court’s campaign finance jurisprudence easily could turn back 180 degrees to its pre-Alito days.
“If” is a hope, and the “pre-Alito days” offers little of it. Before Alito, in 2004, dozens of wealthy people were contributing millions of dollars to 527 organizations. Billionaraies could spend unlimited amounts of their own money to get elected. In So Damn Much Money, author Robert Kaiser found that campaign spending increased fifteenfold between 1976 and 2006. It is Buckley itself that needs to be overturned, and because of stare decisis, the Court is unable to accomplish that. Genuine, comprehensive CFR can only come about in the aftermath of overturning Buckley, and that virtually requires amending the Constitution.
Hasen then argues that “[r]eformers must demonstrate to the new Court that reasonable limits on corporate, and potentially even individual, spending would not squelch political competition or inhibit robust political debate.” “Reformers.” Hasen is not a “progressive” in any traditional sense of the word. Reforming the corrupt system of campaign finance in place is akin to placing a band-aid on a lethal gash, and that is the crux of this deconstruction. Our corporate feudalism doesn’t need reform; it needs serious surgery, an approach that gets at the root of the dual problems of corporate and plutocratic “speech,” i.e., electioneering cash. Until campaign spending is de-linked from campaign speech, no reform will suffice to make American elections both free and fair. Fairness will not “inhibit robust political debate;” it will ensure that all candidates in a given race, including “fringe” candidates in the Libertarian, Reform, Constitution and Green Parties, will be heard in more equal measure. In a corporate and plutocratic dominated polity, that is a radical ideal. Ironically, it’s a radical ideal based in the conservative goal of returning to the legal CFR environment of 1975.
Hasen also argues that the…
…idea is to continue to provide strict scrutiny to police campaign finance laws for pro-incumbent and anti-speech measures, but to accept political equality as a compelling interest for reform that can justify egalitarian and speech-enhancing programs. It is a tough and delicate balance.
Until Buckley is overturned by the amendment process, there can be no “political equality.” Buckley was “speech-enhancing” only for corporate plutocrats and undermined the “tough and delicate balance” of the 1974 amended Federal Election Campaign Act of 1971.
Advice for mere reformers
Finally, in a laughable bit of advice, Hasen urges “patience.” “Progressive campaign finance reform supporters need to be just as patient as their conservative opponents, and ready to move forward when the moment is right.” It required 40 years for the American people to amend the Constitution to overturn Minor v Happersett and give women the right to vote. Hasen has gall to advise the amendment movement to be patient. Its activists are well aware that this effort is likely to take a generation or more. Our advice to Professor Hasen is to 1) refrain from using the “progressive” label to describe his reformist (semi-passive) approach to CFR, 2) stop criticizing those who understand “the disease” better than he does and 3) stop the baseless fear-mongering over the abolition of corporate rights. Abolitionists are the people aiming to restore the ideals set forth by the Framers where people have rights and privileges but properties have only privileges bestowed upon them by the state. Corporate personhood is a corruption of those ideals. Hasen’s approach smacks of corporate liberalism, a symptom of the disease that he turns an apparently blind eye toward.