faq_no_alphaFrequently asked questions related to an amendment to abolish constitutional rights for artificial entities and the spending of money as a form of speech.



  • Citizens United
  • What is Citizens United?
    pewestlake30-08-2015

    Citizens United is a non-profit advocacy group that sued the Federal Election Commission for preventing the broadcast, in the months leading up to the 2008 election, of a political pay-per-view video they had produced. The case wound up in the U.S. Supreme Court and “Citizens United” became the shorthand description of the decision the Court made in that case, which was handed down in January, 2010.

    Click here to read a full description.

  • The Citizens United decision wasn’t based on “corporate personhood,” so why is it so important?
    pewestlake29-08-2015

    Citizens United was indeed based, to at least some degree, on constitutional rights for artificial entities, as we can see in this passage from the majority decision:

    The Court has recognized that the First Amendment applies to corporations, e.g., First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 778, n. 14, and extended this protection to the context of political speech, See, e.g., NAACP v. Button, 371 U.S. 415, 428-429. Addressing challenges to the Federal Election Campaign Act of 1971, the Court in Buckley v. Valeo, 424 U.S. 1 (per curiam), upheld limits on direct contributions to candidates, 18 U.S.C. § 608(b), recognizing a governmental interest in preventing quid pro quo corruption. 424 U. S., at 25-26. However, the Court invalidated § 608(e)'s expenditure ban, which applied to individuals, corporations, and unions, because it "fail[ed] to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process." While Buckley did not consider a separate ban on corporate and union independent expenditures found in § 610, had that provision been challenged in Buckley's wake, it could not have been squared with the precedent's reasoning and analysis. The Buckley Court did not invoke the overbreadth doctrine to suggest that § 608(e)'s expenditure ban would have been constitutional had it applied to corporations and unions but not individuals. Notwithstanding this precedent, Congress soon recodified § 610's corporate and union expenditure ban at 2 U.S.C. § 441b, the provision at issue. Less than two years after Buckley, Bellotti reaffirmed the First Amendment principle that the Government lacks the power to restrict political speech based on the speaker's corporate identity. 435 U. S., at 784-785.

  • Why do people think that the Citizens United decision equated money with speech if the majority opinion didn’t actually make that statement?
    pewestlake29-08-2015

    Actually, the majority opinion did make that statement:

    Although the First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech," § 441b's prohibition on corporate independent expenditures is an outright ban on speech..." (558 U.S. 310, Section 2, Clause a)
    The Court has recognized that the First Amendment applies to corporations, e.g., First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 778, n. 14, and extended this protection to the context of political speech, see, e.g., NAACP v. Button, 371 U.S. 415, 428-429. (558 U.S. 310, Section 2, Clause b)

    In fact, the majority opinion didn’t “equate” the spending of money with speech, it flat-out said that corporate expenditures on communications are speech, one and the same. Notice also the mention of First National Bank (1978) as the lead-in to NAACP (1963), which is intended to make clear that the right to corporate political speech is a consequence of First Amendment protection, not the purpose. And the majority opinion didn’t parse the language, limiting the interpretation to “money spent on electoral politics “or the “political process” or merely “political speech” or even "free speech," the majority just said that corporate expenditures are speech, period. This is largely based on the ruling in Buckley v. Valeo, but Buckley was a more complex decision with five justices writing both concurrences-in-part and dissents-in-part to go along with the per curiam decision. Citizens United is far more straightforward and so is the language of the majority opinion. Where Buckley was a set of nuanced conditions for when money can and cannot be limited, Citizens United was a blunt instrument that rooted itself in the simplistic concept that spending money equals speech. Full stop.

  • Why an Amendment?
  • Couldn’t the U.S. Congress pass legislation that would accomplish the same goal as an amendment?
    pewestlake29-08-2015

    Any legislation the U.S. Congress enacts is subject to judicial review. If the Congress passed a bill that directly contradicted the principles embodied in the Citizens United and related decisions, there is very little doubt that a case challenging the constitutionality of such a bill would find its way before the Supreme Court. It is unlikely that any of the five justices in the majority on the Citizens United case will retire in the foreseeable future or during the administration of a President who has expressed disapproval of current case law.

    There are other legislative actions that can be taken in the U.S. Congress, the states and local municipalities, from the Disclose Act to the anti-corruption campaign being waged by Represent.us. Those are all good and worthy efforts that are supported without reservation by The Amendment Gazette. Legislation is easier to enact than an amendment, but legislation is also easier to repeal and subject to the whims of a Supreme Court fixated on expanding the rights of artificial entities and the ability of big money donors to control the American political process. Ratifying an amendment may be a tougher and longer fight but it has the staying power and judicial imperviousness that legislation lacks.

  • Wouldn’t public campaign financing solve the problem of big money influence in politics?
    pewestlake30-08-2015

    Public campaign financing would likely help level the electoral playing field. A lot would depend on how such a bill is structured. But public financing only affects electoral politics. Big money interests have other ways to use their money to influence legislation, like lobbying and one-sided media blitzes that ignore facts the spenders don’t want to acknowledge. Public financing is generally supported by as much as 70% of the voting public, while reducing systemic corruption in Congress is supported by upwards of 90% of voters. So people overwhelmingly want a fix, but spending tax dollars on politics isn’t as popular a solution as simply limiting the amount of money that can be spent to influence legislation, whether at the polls, in the media or in the “educational” symposium at a golf resort. The only reliable and lasting solution that empowers legislators to enact laws that limit all the ways that big money donors influence politics and policy is a constitutional amendment that abolishes First Amendment protections for spending money and prevents wealthy artificial entities from using the Bill of Rights to scuttle regulatory reforms.

  • Doesn’t the U.S. Congress have the power to regulate elections under Article I, Section 4? And doesn’t the U.S Congress have the power to define the scope of judicial review in Article III, Section 2? Isn’t this just a matter of the Congress telling
    pewestlake30-08-2015

    Yes and no. Even if Congress had specifically spelled out in the text of the McCain-Feingold Bipartisan Campaign Reform Act (2002), “the judiciary shall not infringe on these electoral rules,” it would have had zero effect on these rulings because the Supreme Court insists that these are not electoral issues, but First Amendment issues. The rulings are being decided based on infringements to the First Amendment, applicable to individuals, and to artificial entities via the Fourteenth Amendment. There is no version of campaign finance reform legislation Congress can pass that can survive the aggressively expansive definitions of persons and speech behind Citizens United, et al.

    It should be noted that Article III, Section 2 is not a license to abrogate judicial review. If Congress could get away with inserting provisions into legislation that instructs the Supreme Court to ignore potential violations of the U.S. Constitution therein, judicial review would be effectively obliterated. There are certain clauses in the U.S. Constitution that are the sole prerogative of the legislative or executive branches and Article III, Section 2 is the means by which the judiciary can be prevented from usurping the authority of another branch of government. But the case law in question is predicated on the protections embodied in the Bill of Rights and the Fourteenth Amendment. Thus Congress has no constitutionally valid means of overruling the Court short of an amendment.

  • Why don’t states invoke the Eleventh Amendment to prevent the Federal Courts from interfering in state campaign finance regulations?
    pewestlake30-08-2015

    The Eleventh Amendment is a vexing clause that has been interpreted in no less than four separate ways. One of those ways is to accept that private parties cannot bring a suit against a state—this is known as “sovereign immunity”—but that individual office holders can be compelled by Federal Courts to perform specific duties. In other word, we can’t sue the state but we can sue the attorney general or the governor. Cases related to state law that the Supreme Court chooses to review are normally brought against the individual heads of the agencies involved, or the Court renames the case and the parties to the suit to ensure compliance with the Eleventh Amendment. It is a rare case in which the parties to the suit cannot be renamed to include individuals and not the state agencies they run, which means that it is practically impossible to use the Eleventh Amendment to shield state regulations from case law emanating from the Federal Courts.

  • Isn’t the movement to amend the constitution just a big distraction from the kind of legislation that could make a real difference right now?
    pewestlake30-08-2015

    We can walk and chew gum at the same time. There is no conflict here.

  • Consequences of an Amendment
  • Wouldn’t a constitutional amendment have unintended consequences? Are we running a risk that we could make the problem worse?
    pewestlake30-08-2015

    It’s hard to imagine how the problem could be made much worse than the trajectory we’re already on with respect to the aggressive case law pouring out of the U.S. Supreme Court. We’re one or two more landmark First Amendment cases away from the complete dismantling of all campaign finance regulations. It is easy to imagine this happening in the not-too-distant future.

    Unintended consequences are surely to follow any amendment, just as happened when the Fourteenth Amendment was interpreted to include artificial entities and when the Eighteenth Amendment (Prohibition) led to an astronomical increase in organized crime and violence associated with illegal alcohol distribution. But fear of the unknown and unintended should not paralyze us and prevent us from using the best tools at our disposal to address the corruption and dysfunction in our society right now. Fixing a broken-down car can lead to unintended consequences that wind up costing much more but the car is still broken and needs to be fixed. We don’t have the luxury of throwing out our Constitution and getting a new one. We have to fix the one we have, even though it was the mechanic that broke it in the first place. When that happens, we get a better mechanic. That’s what an amendment is. The regular mechanic broke the car and we need a better mechanic to come in and fix it. The people are the better mechanic. Don’t doubt that for an instant.

  • Wouldn’t it harm the people who own corporations or are members of non-profits or unions if the First Amendment didn’t guarantee the rights of those entities?
    pewestlake29-08-2015

    It is sufficient that the rights embodied in the U.S. Constitution apply only to individual living human beings. In a scenario in which individual rights are being violated, and that the interest of the individual is sufficiently coincident with the artificial entity, the entity can gain standing to represent the interests of the individual.

    Some examples: If the FBI orders a Johns Hopkins physician to turn over confidential medical information, Johns Hopkins itself can gain standing to defend its doctor; if the U.S. Congress enacts legislation that bars journalists from writing stories that are damaging to the reputations of members of Congress, the media corporations that employ them could gain standing to challenge the law in court; if the U.S Congress enacts legislation that bars speech promoting environmentalism or a law prohibiting advocacy of abstinence-only education, the Sierra Club and the Family Research Council (respectively) could challenge such laws on behalf of their members.

    In two landmark cases—NAACP v. Alabama and NAACP v. Button—the court ruled that the interests of the NAACP and that of its members were so closely aligned that the artificial entity—the NAACP—gained standing to defend the rights of its members in court. That precedent stands and would likely become the basis for the exertion of constitutional rights by all artificial entities. And in those instances where no such alignment of interests exists, there is very little reason to assume that the artificial entity warrants special consideration.

  • If artificial entities didn’t have First Amendment rights, couldn’t the government shut down newspapers like the NY Times or Wall Street Journal?
    pewestlake30-08-2015

    The “Equal Protection Clause” of the Fourteenth Amendment would continue to apply to individuals and artificial entities alike. Therefore, if the U.S. Congress attempted to shut down the NY Times, the law would have to apply equally to all artificial entities or be thrown out as arbitrary and capricious in federal court. If the point was to eliminate a publication critical of a particular party or certain members, it would not only run afoul of the Fourteenth Amendment with respect to the NY Times, but it would also run afoul of the First Amendment with respect to the reporters who work for the NY Times. Would it be possible to craft legislation that had the effect of putting the NY Times out of business? Not without putting the Wall Street Journal and hundreds of other outlets out of business, too. While that may be technically possible, the probability of such a piece of legislation being passed by Congress, signed by the President and accepted by the Supreme Court is so close to zero as to be indistinguishable from it.

  • Wouldn’t taking First Amendment protections away from artificial entities mean that the government could prevent businesses from advertising their products and services?
    pewestlake30-08-2015

    That is already true right now, before an amendment, and it depends, mainly, on the type of product or service being advertised. Richard Nixon signed legislation banning cigarette ads on TV and radio in 1970. Bill Clinton went even further in 1996, approving a range of regulations designed to reduce the appeal of tobacco products to children. Nearly every food product label on supermarket shelves includes nutritional value information that is mandated by law. First Amendment claims haven’t prevented these regulations thus far, though they have prevented some.

    The extent to which commercial speech can be regulated is unresolved, largely due to the vague nature of the landmark Supreme Court decision in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., in which the court ruled that "some forms of commercial speech regulation are surely permissible," without elaborating further. The health and safety of the public at large is the compelling state interest that the Courts balance against the First Amendment on a regular basis. That standard acts as a barrier to the kind of legislation that would be an arbitrary and capricious application of Congress’ power to regulate interstate commerce.

    Congress and the states would probably have a freer hand to impose some regulations, like mandates on GMO labeling. It would likely limit the ability of large corporations to attack small businesses with expensive lawsuits that are predicated on constitutional protections. But it is extremely unlikely that a nation founded on the free enterprise system would elect a Congress willing to stifle commercial speech to the extent that a significant amount of commercial advertising, and with it commercial sales and tax revenue, would be impacted.

  • Could the elimination of First Amendment rights for artificial entities lead to a law that forces private universities to open each day with a prayer?
    pewestlake30-08-2015

    Such a law would violate the individual rights of the students, and it’s a virtual guarantee that universities would gain standing to represent the interests of their faculties and students in challenging the law.

  • Abolishing constitutional rights for artificial entities would also abolish freedom of association and leave non-profits like Planned Parenthood and Operation Rescue vulnerable to government interference, right?
    pewestlake30-08-2015

    Associations do not need to be incorporated to exist. The average PTA is not incorporated and neither are most labor unions. Congress cannot prevent the existence of associations but the states are under no constitutional obligation to provide a mechanism for associations to be granted a charter conferring artificial personhood. That is as true now as it would be after the ratification of an amendment abolishing constitutional rights for artificial entities. The extent to which associations could be vulnerable to government interference would be the same after an amendment as it is right now, which is to say, not much.

  • Wouldn’t abolishing constitutional rights for artificial entities mean that non-profits couldn’t sue the government, as when Citizens United sued the Federal Election Commission, or that corporations couldn’t sue each other for breach of contract?
    pewestlake30-08-2015

    A corporate charter confers upon the artificial entity a “legal fiction” called artificial personhood. Artificial personhood is the legal mechanism that enables corporations to sue each other, to enter into contracts, to hold bank accounts and own fleet vehicles, etc. Abolishing constitutional rights for artificial entities does not strip artificial personhood, it strips “natural” personhood, the activist court-created doctrine that artificial entities are the equivalent of living human beings. Constitutional rights are not required for a chartered artificial entity to have the ability to sue and be sued, enter into contracts, own property, hold bank accounts, or any of the other day-to-day activities of legal and business affairs.

  • Wouldn’t the government be able to seize the property and assets of artificial entities if those entities did not have the constitutional rights that come with natural personhood?
    pewestlake30-08-2015

    There are two noteworthy points on this issue. First, under the Fifth Amendment’s eminent domain clause, the government has the power to seize private property for public use but must pay fair compensation for that property in exchange. The Fifth Amendment is worded in such a way that artificial entities are construed to be included in its protection. An amendment that separated “artificial” and “natural” personhood would not impact that interpretation of the Fifth Amendment. Even if an amendment was worded in such a way as to render Fifth Amendment protection inaccessible to artificial entities, the property and assets are still ultimately owned by natural persons and the interest of those persons would be sufficiently coincident with the artificial entity that the entity would very likely gain standing to challenge the seizure in court on behalf of the owners. This, of course, would only be meaningful if the government seized property without just compensation, and the only remedy the owners could seek would be for just compensation, not the prevention of the seizure itself. That is how the Fifth Amendment works, with or without an amendment.

    The second point is the recent Supreme Court decision of Kelo v. New London, in which the Court ruled that the city of New London, CT, had the power under eminent domain to seize private property—in this case a neighborhood of low to moderate income single-family homes—and transfer ownership to another private owner—in this case a private developer with plans to “revitalize” the area—because the predicted increased in tax revenue could be used for public purposes. This is an illogical stretch of the Fifth Amendment and came at the hands of the so-called liberal majority on the Court. Which just goes to prove that judicial activism in the defense of Goliath, at David’s expense, isn’t solely the domain of the so-called conservatives on the Court.

  • Constitutional Principles
  • What is "corporate personhood?"
    pewestlake31-08-2015

    “Corporate personhood” is an incomplete shorthand in the same way that “overturn Citizens United” doesn’t encompass the entirety of the problem of money dominating politics in America. When people from organizations like Move To Amend say corporate personhood, what they usually mean by “corporate” is all legal fictions, including corporations, non-profits, unions, NGOs, PACs, political parties, incorporated towns and cities, and all other forms of organization that are created in charters granted by government agencies. And what they usually mean by “personhood” are the Constitutional protections afforded to those legal fictions that the Founding Fathers had originally reserved exclusively for individual citizens (We the People). The distinction between “natural” and “artificial” personhood is what is often lost in the translation to English from the legal pig latin of jurisprudence.

     

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  • How did spending money become a form of protected speech under the First Amendment?
    pewestlake31-08-2015

    The doctrine that money is a form of speech was not passed in any American legislature. Only seven people, Supreme Court justices, voted to create that  inequitable equivalency. That vote took place in 1976 in the ruling on Buckley v. Valeo. Senator Buckley (C – NY), presidential candidate Eugene McCarthy (D – MN) and others filed a suit against the Secretary of the Senate and ex officio member of the Federal Elections Commission , Francis Valeo. The decision of the Court changed the course of American federal elections and established one of the roots of the Citizens United decision.

     

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  • Don't unions need constitutional rights to protect their members and compete with corporations?
    pewestlake31-08-2015

    A constitutional amendment that abolishes constitutional rights for all artificial entities would, by definition, abolish constitutional rights for unions inasmuch as they are legal fictions created by the association of their members but it would not, in any way, diminish the right of the members or, therefore, the right of unions to exercise individual member rights in appropriate circumstances, including protecting any encroachments by government on individual constitutional rights as expressed by association with the union.

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  • Don't non-profit organizations need constitutional rights to prevent government interference, protect their members and advance their causes?
    pewestlake31-08-2015

    Non-profits come in all shapes and sizes, just as for-profit corporations and individuals do, what status should they have in relation to for-profits and individuals as a class? That’s really the crux of the question. And, as a class, there is no constitutional reason to elevate non-profits to the same status as individuals, which an exemption within the amendment would do. Nor is it a good idea to pick a fight in which our goal would become the creation of legal fictions with more rights than for-profit corporations. This fight is big enough as it is.

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  • If the New York Times didn’t have First Amendment protection, how would it have prevailed in the landmark Supreme Court decision in New York Times Co. v. Sullivan?
    pewestlake30-08-2015

    The New York Times was sued in civil court, along with three other respondents, over an advertisement in the newspaper that the other three individuals purchased and affixed their names to. The First and Fourteenth Amendments were prominently discussed in this decision because it was a libel case but the burden of proof fell upon the plaintiff, not the NY Times. In any event, the whole point of artificial personhood is to allow for such lawsuits to proceed without reflecting directly on the owners of the artificial entity (limited liability). This lawsuit would have proceeded as it did with or without the protection of the First Amendment.

    However, it was not the First Amendment that protected the NY Times, it was the failure to meet the burden of proof by the plaintiff. From the majority opinion:

    “We think the evidence against the Times supports, at most, a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice.”

    The implication of this statement is that the NY Times could have indeed been held for libel if the Court had agreed on a finding of “actual malice.” In other words, the First Amendment did not, in itself, provide a blanket protection for the NY Times. This wasn’t a case of dismissing a libel suit because the First Amendment prohibits the press from being sued, but because the burden of proof hadn’t been met. A suggestion that the First Amendment was the only thing that enabled the NY Times to prevail in this case denotes a lack of understanding of the majority opinion.

  • What about New York Times Co. v. United States?
    pewestlake30-08-2015

    An earlier landmark case that is consistently referred to in the four concurrences and three dissents in the NY Times case is Near v. Minnesota, which established the doctrine that “prior restraint”–meaning censorship before publication as opposed to civil or criminal libel after publication–is only permissible in rare circumstances in which a compelling government interest outweighs the principles of a free press. Because the owner of the publication in the 1931 case didn’t create a limited liability corporation, he was the target of government censorship and he was the party to the case. But because the NY Times Co. is a limited liability corporation, it can be the target of government interference. If the NY Times Co. did not have First Amendment rights in itself, the owners, publishers and reporters still would. In any similar case, the Times would have a compelling argument to gain standing on behalf of the individuals that collectively express their First Amendment rights through the newspaper.

    It should also be noted that the NY Times case was decided 5-4, and that the dissents made strong arguments that the First Amendment was not absolute and that the government’s compelling interest in areas like national security should be given equal, if not more, credence. This highlights the problem with citing Supreme Court cases in defense of constitutional rights. Just one justice could have tipped the scales in the other direction, as with Citizens United and many other close rulings over the very checkered history of the Court. Just because the Court ruled a particular way doesn’t mean it always will or that the underlying principles are set in stone.

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