There are many schemes now
for undoing the doctrines under which corporations claim constitutional rights
and bribery is deemed constitutionally protected "speech." Every
single one of these schemes depends on a massive movement of public pressure
all across the homeland formerly known as the United States of America
The U.S. Constitution never
gave any rights or personhood to corporations or transformed money into speech.
It ought not to be necessary to amend a document to, in effect, point out that
the sky is blue and up is not down. If the Supreme Court rules that Goldman
Sachs can send legislation directly to the White House and cut out the
congressional middleman, will we have to amend the Constitution to remove the
Goldman Sachs branch of government? Where will this end?
The Constitution also allows
the Congress to impeach and remove Supreme Court justices. Congress could
remove the most corrupt one or two or three or four or five and only consent to
new justices opposed to corporate personhood.
Congress could also just
ignore the Supreme Court on this matter and pass a flood of legislation
regulating and stripping corporations of their outrageous claims to power,
compelling the court to take up case after case.
The reason none of these
things is happening is, of course, the weak link smack in the middle of them:
Congress.
Lower courts and/or state
legislatures could likewise place sanity and decency above the "Citizens
United" Supreme Court — if judges or delegates had the nerve to become
what the New York Times might mock as "justice vigilantes." The
Montana Supreme Court has just done this, so it can't be simply dismissed.
Amending the Constitution
seems harder and more extreme than most other schemes. But that fact is itself
a reason to favor amending the Constitution. Doing so ought not to be viewed as
extreme. It is a sign of disease in our political system that we view it that
way. There is tremendous benefit in the act of amending the Constitution
itself, and we should have amended it and completely reworked and rewritten it
many times by now. Instead we've barely tweaked the thing, and with the
exception of an amendment on Congressional salaries proposed in 1789 and
finally ratified by Michigan
We have a horribly outdated
broken system of government that stifles democracy. The closest thing to
democracy in it is the process by which it can theoretically be amended. I
would strongly favor amending the Constitution even if it were only to cross a
t or dot an i. Amending it to end corporate personhood and money-speech is,
thus, an important goal for multiple reasons. And it opens up the possibility
of creating other systemic reforms in the process if we convene a new
Constitutional Convention.
Amending the Constitution
can be begun by Congress and completed by three-quarters of the state
legislatures. Or it can be begun by two-thirds of the state legislatures and
completed by three-quarters of them. So, one weak link is the states. Another
possible weak link is the Congress. The only way to strengthen either of them
is with intense, deep, and wide-spread nonviolent people power. And that power
can be energized by and organized around a desired amendment. This
approach has the advantage of building power in the states, where
state legislatures and courts can be urged to also attempt other approaches to
the same problem. And it has the advantage of circumventing Congress if
necessary. If you ask me, most people are underestimating the likelihood that
such circumvention will be necessary.
A great boost to the effort
is MoveToAmend.org's development of what many now see as the ideal amendment:
Section 1. The rights
protected by the Constitution of the United States
Artificial entities, such as corporations, limited liability companies, and other entities, established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law. The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable.
Section 2. Federal, State and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures, for the purpose of influencing in any way the election of any candidate for public office or any ballot measure. Federal, State and local government shall require that any permissible contributions and expenditures be publicly disclosed. The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.
Section 3. Nothing contained in this amendment shall be construed to abridge the freedom of the press.
This is very similar to the
amendment proposed by FreeSpeechForPeople.org:
Section 1. We the people
who ordain and establish this Constitution intend the rights protected by this
Constitution to be the rights of natural persons.
Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.
Section 3. Nothing contained herein shall be construed to limit the people's rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.
The above has the advantage
of having been introduced already in the U.S. House by Congressman Jim McGovern
as HJRes88. Promoting that amendment can help build the movement, but the text
of it leaves wealthy individuals who are not corporations but actual flesh-and-blood
billionaires the power to consider the spending of money on elections as
protected speech. The MoveToAmend version does not have this weakness.
Other amendments are also
worth promoting despite various limitations. Congresswoman Donna Edwards' HJRes78
also does not address money as speech and does not address the overarching
question of corporate rights (the problems with which are not limited to
elections), but it does create the power for Congress and states to regulate
and restrict (it does not say eliminate) corporate political spending.
Similarly, so does Congressman Ted Deutch's HJRes82.
Of course everything need
not be in one amendment if more than one can be passed. Senator Tom Udall's
SJRes29, like Congresswoman Marcy Kaptur's HJRes8, Congresswoman Betty Sutton's
HJRes86, and Congressman Kurt Schrader's HJRes72, goes after money as speech by
giving Congress and states the power to limit election spending. But I want to
eliminate, not limit, private election spending. Even MoveToAmend's amendment
says that the government can "regulate, limit, or prohibit" such
spending, and even the regulating or limiting won't simply happen
automatically. First the Congress or the state legislature that benefits from
not regulating or limiting will have to turn on itself.
Then there's Congressman
Deutch's HJRes90, and Senator Bernie Sanders' SJRes33, which goes after
corporate personhood, but only for for-profit corporations. This leaves a
loophole for not-for-profit corporations and entities such as labor unions or
PACs like Citizens United. Any such loophole not only makes this amendment hard
to pass into law, but the loophole would very likely be exploited by the
wealthiest elite to the great disadvantage of ordinary people and of labor
unions. This amendment, in a later section, gives Congress and the states the
power to limit (it does not say eliminate) election spending by any
organization or individual, including candidates themselves. But how, if at
all, would such power be used?
Public Citizen at Democracyisforpeople.org
proposes language that tries to block corporations from setting up front groups
while at the same time permitting election spending by any corporation not
"created for business purposes." But why create years of lawyering
over what is and is not a business purpose? Why not just get the money out of
the elections?
Russell Simmons has proposed
an amendment that does that. It does not deal with corporate personhood in its
many other areas, but it does address elections as directly as anything I've
seen. It does not mention states, and I am convinced that including states'
rights to outlaw bribery is essential to getting this approved by
three-quarters of the states. This amendment does not bother to say that
corporations are not people or that speech is not money, but simply proceeds as
if that and the blueness of the sky were obvious. (Yet it may be absolutely
necessary to state that corporations are not people and that money is not
speech in order to build the public movement required for passage.) This
amendment also requires criminal penalties for violation:
Section 1. All elections
for President and members of the United States
House of Representatives and the United States
Section 2. The Congress shall, by statute, provide limitations on the amounts and timing of the expenditures of such public funds and provide criminal penalties for any violation of this section
Section 3. The Congress shall have the power to enforce this article by appropriate legislation
Section 4. This article shall be inoperative unless it is ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution.
Arguably more will be needed
than even MoveToAmend's comprehensive amendment. If we block off corporate
spending except through the media, guess what the media will become even more
than it is now! Without public financing, free media for candidates, and
disintegration of media monopolies, the reform effort breaks down. Without
other electoral reforms, the choices of candidates could remain extremely
limited. We should have automatic registration, reasonable ballot access, an
election day holiday, publicly hand counted paper ballots, a limited election
season, no more electoral college, a larger House, no more Senate, and the
popular power to legislate by initiative, along with numerous other possible
reforms that could be combined into a coherent package by a Constitutional
Convention, and which could be underscored by the individual national right to
vote that is scandalously absent from the Constitution now.
An amendment proposed by
Wolf-pac.com includes public financing:
"Corporations are
not people. They have none of the Constitutional rights of human beings.
Corporations are not allowed to give money to any politician, directly or
indirectly. No politician can raise over $100 from any person or entity. All
elections must be publicly financed."
It's not clear to me,
however, that corporate lawyers and former corporate lawyers serving as judges
could not construe a great deal of electoral spending as something other than
indirect giving to a politician. It would also help if this amendment rejected
the notion of spending money as speech. Lawrence Lessig has posted an amendment
at Lessig.tumblr.com that, like this one, creates public financing but limits
rather than outlawing private financing.
An amendment proposed by RenewDemocracy.org
includes a right to vote:
"The right of the
individual qualified citizen voter to participate in and directly elect all
candidates by popular vote in all pertinent local, state, and federal elections
shall not be questioned and the right to vote is limited to individuals. The
right to contribute to political campaigns and political parties is held solely
by individual citizens. Political campaign and political party contributions
shall not exceed an amount reasonably affordable by the average American. The
rights of all groups, associations and organizations to other political speech
may be regulated by Congress but only as to volume and not content and only to
protect the right of the individual voter’s voice to be heard."
The strength of this
amendment in providing the right to vote and directly elect (thus eliminating
the electoral college and allowing national vote counting standards, among
other reforms) is, to my mind, weakened by the failure to simply get rid of the
money and provide public financing. This is also, of course, not an amendment
to remove corporate personhood across the board. Of course, if we had a
Congress that would back this amendment, we might have a Congress that would
effectively implement it. Lacking either at the moment, I'm more inclined to
find a solution that does not rely on Congress to pass a bunch of wise and
democratic laws.
GetMoneyOut.com has posted
an amendment that also does not take on corporate personhood but does address
election spending quite well, including the money-is-speech nonsense, and
rather randomly throws an election day holiday into the same amendment. It does
not, however, explain who will pay for elections or mention public financing:
"No person,
corporation or business entity of any type, domestic or foreign, shall be
allowed to contribute money, directly or indirectly, to any candidate for
Federal office or to contribute money on behalf of or opposed to any type of
campaign for Federal office. Notwithstanding any other provision of law,
campaign contributions to candidates for Federal office shall not constitute
speech of any kind as guaranteed by the U.S.
Constitution or any amendment to the U. S.
Drawing on the best of all
of these drafts and proposals, let me dare to offer the following:
PROPOSED
CHANGES TO THE U.S.
The
rights protected by the Constitution of the United States
Artificial
entities, such as corporations, limited liability companies, and other
entities, established by the laws of any State, the United States
The
judiciary shall not construe the spending of money to influence elections to be
speech under the First Amendment.
All
elections for President and members of the United States House of
Representatives and the United States Senate shall be entirely
publicly financed. No political contributions shall be permitted to any federal
candidate, from any other source, including the candidate. No political
expenditures shall be permitted in support of any federal candidate, or in
opposition to any federal candidate, from any other source, including the
candidate. The Congress shall, by statute, provide limitations on the amounts
and timing of the expenditures of such public funds and provide criminal
penalties for any violation of this section.
State
and local governments shall regulate, limit, or prohibit contributions and
expenditures, including a candidate’s own contributions and expenditures, for
the purpose of influencing in any way the election of any candidate for state
or local public office or any state or local ballot measure.
The
right of the individual U.S.
Nothing
contained in this amendment shall be construed to abridge the freedom of the
press. During a designated campaign period of no longer than six months, free
air time shall be provided in equal measure to all candidates for federal
office on national, state, or district television and radio stations, provided
that each candidate has, during the previous year, received the supporting
signatures of at least five percent of their potential voting-age constituents.
The same supporting signatures shall also place the candidate's name on the
ballot and require their invitation to participate in any public debate among
the candidates for the same office.
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