Kerry calls for constitutional amendment to counteract Citizens United

In testimony before the Senate Rules Committee, Senator John Kerry today announced his support for a constitutional amendment in light of the Supreme Court’s decision in Citizens United.

We face two challenges: first, to mediate the impact of the Court’s decision and stop the bleeding through immediate countermeasures and, second, to think boldly about the best way to free our democracy from the dominance of big money.

Mr. Chairman, the reform ideas already circulating are promising – mandating shareholder approval of spending, prohibiting spending by domestic subsidiaries of foreign corporations and government contractors, giving candidates primetime access to the public airwaves at the lowest rates.

We must do those things quickly. But we may also need to think bigger. I think we need a constitutional amendment to make it clear once and for all that corporations do not have the same free speech rights as individuals.

Amending the Constitution is a serious endeavor and some of the sharpest minds in the country are working together right now to construct language for an amendment that would solve the problem and get to the heart of the issue. I’m ready to work with them and with the activists it will take to get an amendment ratified.

Mr. Chairman, there is no bigger step to achieve big change than a constitutional amendment. But big issues of fairness and justice sometimes demand nothing less.

Justice Alito, who had snuck into the hearing room and was seated in the back row, was seen vigorously shaking his head and muttering “curses, foiled again!”

Relatedly, a new national poll has found that large majorities of Democrats (66%), independents (72%), and Republicans (63%) don’t like the result in Citizens United.

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  1. WooooooHoooooooo!

    John Kerry is being BOLD? I never thought I would see the day.  Hurray!  I think it's an amazing idea, far better than many little one foot hurdles, I love the idea of a 20 foot hurdle.  Yes...let's get the job done!

    • Amen

      He was never much of a junior senator.  Maybe he'll be a decent senior senator.

      sabutai   @   Tue 4 Dec 7:00 PM
      • Insert cynical comment

        having to do with Kerry's self-interest in denying the opposition unlimited funding.

        Not that I'm sure that's his motive, but after his tepid showing in the health-care debate, I am surprised at this.

  2. I'm 100% in support of this effort, Senator! n/t

  3. this truly is something

    people of all parties should support. We need to get this done. I'd really like to see large swaths of grassroots efforts to be taken by organizations on all sides of the non-corporate isle... This is clearly the newest and most important thing we should "MoveOn" from.  

  4. Interesting

    What should the amendment say, I wonder? I'd recommend that it give the government the right to enact any and all restrictions it deems necessary on the activities of state-chartered entities engaged in for-profit, communal economic endeavors, including, but not limited to, environmental protection, workplace safety and product safety, consumer protection, and political donations and expenditures related to political advocacy and candidate endorsements,  so long as no laws are made in order to reward or punish specific companies. An amendment that just bars corporations from enjoying free speech protection (i.e., apparently "removing rights") would seem somehow out of place in our Constitution, just as a "DOMA"-style amendment would.  This is a little tricky.

  5. This really makes me very nervous

    There has got to be some way to do this without amending the Constitution.  I'm really very concerned about any effort to prohibit political speech via Constitutional Amendment because of potential future unintended consequences.  I don't generally like slippery-slope arguments, but the precedent of running to change the Constitution to prevent one kind of speech is really off-putting.

    There's got to be some statutory way to do this and still be in compliance with Citizens United until Scalia kicks the bucket.

    • The decision will outlive Scalia

      And we're not talking about freedom of speech for people, we are talking about freedom of speech for corporations, which are not people.

      • $quot;The decision will outlive Scalia$quot;

        Depends on who replaces him.

      • But aren't corporations really $quot;a group of people$quot;

        teaming up to do business and so forth?

        • Groups of people

          are each entitled to speak individually if they are so inclined, including with their personal funds.

          • So we should keep the money=speech equation?

            I've never been 100% comfortable with that one either, given the vast disparity possible in "purchased volume" between rich and poor money-talkers. If giving money is a protected form of free speech, how are those laws about maximum campaign contributions constitutional? Are those rules susceptible to being overturned as well?

        • Corporations are not $quot;groups of people$quot;

          People don't need government permission or state-created entities to form groups.  Corporations are not groups of people.  The law calls corporations "creatures of statute."  Corporations simply don't exist unless we the people enact laws that enable people to organize a corporation and provide the rules of the road for using a corporation.  We all can start and run businesses without government involvement or permission; we can form advocacy groups, partnerships, associations and unions and political parties and all kinds of groups without the government.  But we simply cannot form or operate a corporation unless the state has enacted a law providing authority to form a corporation, and providing the rules that accompany use of that entity.  These rules have  advantages such as limited liability and perpetual existence and, before Citizens United, obligations and disadvantages such as restrictions on partisan political activity.  

          Advantages of corporations are a privilege provided by government.  We the people do that through our legislatures because we think, accurately I believe, that such advantages are economically to the advantage of all of us and society over the long haul.  Oddly, Justice Kennedy's opinion in Citizens United never explains what a corporation is but Justice Stevens' dissent does.  A Free Speech for People amendment would not change in any way the free speech rights for any people or groups of people.  It would not change in any way freedom of the press, including for all the corporations that engage in media (ie, "press").  It would restore the ability of people to decide for ourselves what is the appropriate level of regulation of state-created corporations when it comes to our elections.

      • Corporations are not people?

        The very fact that 'corporate personhood' seems so absurd despite the fact that it's the law of the land suggests to me that in the future 'incorporated persons' could just as plausibly be a standard that gets applied.

    • One remedy, maybe

      Writing in the Boston Globe, BC Law Professor Kent Greenfield suggested that changing corporate laws could do the trick.

      Specifically, he suggested limiting corporate spending (I won't call it speech) as a condition of being listed on national securities exchanges.

      So most big companies would have to choose: capitalist enterprise, or advocacy group?

    • kicks the bucket...

      There are 5 justices over 70:

      Stevens (89) Ginsburg (76) Scalia (73) Kennedy (73) Breyer (71)

      1 conservative, 1 50:50, 2 liberal.  What are the odds of any non-Stevens vacancy between now and Spring 2012?  It's true, a Democrat in office 2012-2016 will dramatically increase the changes of SCOTUS swinging more liberally than it did in 2008.  I'm just not so sure there'll be that opportunity between now and 2012.

      Personally, I'm hoping that Stevens retires very soon, which makes it more likely that Obama will get three chances to appoint a SCOTUS judge in his first term since, barring medical necessity, I don't think a judge will retire while there is a current vacancy.

      • I assume you meant

        3 liberal (Stevens, Ginsburg, Breyer).  The odds of a conservative or 50/50 vacancy between now and 2012 are IMHO vanishingly low, barring some unexpected health crisis.  However, I do have a theory that, if Obama is reelected, Scalia won't stick around to the end of his second term.

        Stevens is IMHO likely to retire at the end of this term (i.e., June).  Ginsburg may well retire the following year, depending among other things on her health.

        • I had thought

          that Kennedy was considered the swing justice -- on 5-4 decisions, he's often the "5th".  That's why I had called him a 50:50.

          Is that understanding not correct?

    • sometimes you hafta swing for the fences...

      There has got to be some way to do this without amending the Constitution.  I'm really very concerned about any effort to prohibit political speech via Constitutional Amendment because of potential future unintended consequences.  I don't generally like slippery-slope arguments, but the precedent of running to change the Constitution to prevent one kind of speech is really off-putting.

      Insofar as slippery sloping is concerned, we're already most of the way down that slide now: The initial decision in Southern Pacific Railroad was made in the light of 14th amendment due process laws as applied to corporations.  From there, we've dissolved into the 'corporations as people deserving free speech' in ever more slippery and slick argumentation.  The 'strict constructionists' get extra irony points atop hypocrisy points as this slippery slope has dashed us about as far away from a strict interpretation of the constitution as can be offered.

      I have no problem changing the constitution if it's done right. If you're argument is the difficulty in getting it right, rather than any inherent danger in change, I'm with you there...  

      • But $quot;Getting it Right$quot; is a moving target

        I would argue that the 14th Amendment pretty much gets it right, but from that amendment flowed corporate personhood. So, who's to say that whatever well-meaning Constitutional Amendment we propose won't turn out worse?

  6. They can't pass basic legislation,

    how are they going to pass a Constitutional Amendment, then get it ratified in enough states to become part of the Constitution? Even on a fast track, these things take years. In the political climate we're in now, who knows what the outcome will be?

    • $quot;Who knows what the outcome will be?$quot;

      Especially with all that corporate money flowing to defeat the constitutional amendment.

  7. Bad idea.

    We shouldn't be looking to change the Constituion but we do need to fix this probem. I agree with some here saying it gets tricky when we start trying to "silence" corporations since they should be able to "speak up". But I don't want company "X" spending $10M to advertise against a candidate.

    Slightly off the subject but germaine to the diary from David...

    Justice Alito, who had snuck into the hearing room and was seated in the back row, was seen vigorously shaking his head and muttering "curses, foiled again!"

    Relatedly, a new national poll has found that large majorities of Democrats (66%), independents (72%), and Republicans (63%) don't like the result in Citizens United.

    Why are so many people attacking Alito simply because he shook his head and mouthed words? It seems many people who were against this ruling have focused their anger at Alito. I also have read a number of pieces saying this was the right decision based on the law, even though it may be a bad thing for our political process.

    Let's just fix it with some "commerce" laws and hold off on changing the Constitution.

    • STFU

      We shouldn't be looking to change the Constituion but we do need to fix this probem. I agree with some here saying it gets tricky when we start trying to "silence" corporations since they should be able to "speak up". But I don't want company "X" spending $10M to advertise against a candidate.

      I have no problem telling corporations to STFU anytime and anywhere. I don't think it's tricky at all: they are endowed by their creator (the state) with whatever rights we decide to give them and so they can just STFU.

      Let's just fix it with some "commerce" laws and hold off on changing the Constitution.

      I don't understand this fear of changing the constitution.  If the original constitution allows this much ambiguity with respect to corporations then it needs to be clarified IN THE CONSTITUTION.

      • That's why we have to keep business-killers like yourself out of making these decisions.

        Who do yo think you are in wanting to limit what a business can say? I'm not surprised since the left has a shining history of allowing people to speak freely but suddenly wants everyone who disagrees with them to STFU. Bring back the Fairness Doctrine to silence talk radio! Close JohnD's account on BMG! Don't cover the Tea Party protestors in DC!  

        • Negatory

          suddenly wants everyone who disagrees with them to STFU.

          No, but many do want everything to STFU.  Persons should feel free to speak truth to power or whatever.  Things, on the other hand... not so much.

    • I think

      the reason why people are focusing on Alito is twofold, one is that he was the one who put himself out there by his behavior at the SOTU  Address, and second because he was the most recent conservative addition to the Court, and thus the vote that tipped the decision rightward. Now, people are getting an up close and personal view of why Democrats should have moved heaven and earth to block his nomination.

  8. Lets ban all of it!

    I agree with Senator Kerry. The government should decide who may and who may not enter the political discorse.

    I assume that he would allow the NY Times Company, and GE through its NBC affiliate to continue to speak freely on polical issues. I only wonder about how he intends to draw the line.

    Would internet sites and/or companies be news organizations? I suppose that as long they don't piss off some commision in Washington, as Howard Stern did the FCC, they'll be OK. I suppose it really depends on which Party has control of the board, commission, or authority ulimately charged with deciding who is and is not a "news" organization.

    How about film producers (The issue that bought this to a head), would they be allowed political speech? I guess it's OK if we leave that decision to the Republicans or Democrats...whomever is in power. I'm sure all sides would be fair.

    How about entertainment shows, such as the Grammys or Oscars, where actors are prone to spout off about politcal issues. Would that be illegal or legal? I'm sure that the government will be able to figure it out for me. I'm certainly not smart enough to recognize hype for myself.

    Would "news" organizations apply for permits? How will they be distributed? Will the number be limited? Will they cost a fee, or be auctioned? I'm sure that Mr Kerry has this all figured for us. I'm glad he's taking care of me.  

    • You don't get it.

      • Educate me Kathy

        I've already admitted that I depend on my Senator to protect me from certain speech.....what don't I get?

        • Corporate personhood. People make up a corporation and already have the right to speech and a vote.

          • So, are you saying that you are in favor of banning certain movies?

            Wasn't that the whole issue here? Don't you see how difficult it will be to draw a clear line? So, the movie got banned based on the law that was eventually overturned. What if had been the screenplay of the movie, printed in a book? Would you still ban it?

            • the problem paulrevere

              is that corporations are a  "thing"  Many of these corporations (certainly not all), feel no sense of responsibility to tell the truth, or be fair, nor is there any innate sense of empathy (geez, sounds like I'm describing republicans).

              Most human beings have the required capacities to not want to kill, or steal, or drive over a person with a Mack truck because they see a dollar lying in the road ahead.  Many corporations do not.  They are simply a conglomerate of computers, loaded with statistics, and budgets, growth models and competitors stats.  Overseen by yes indeed humans, who see nothing but the paper in front of them and $$$$ they are destined to receive. These corporations think only about how they will grow (into a big country killing, consumer pillaging, economy crashing monsters).  I would think, that after what we've been through over the last 10 years, watching these monsters grow unfettered, you would be scared.

              Did you ever watch the trailers to "Hillary the Movie". It was a sociopathic hit job. I can't believe our United States Supreme Court felt that was worth a ruling for freedom of speech.  You would think they would have been more concerned about whether it was a valid piece of media, or simply a compilation of lies and attacks (slander)on the character of a "person" in an attempt to steer an election.

              • So I guess you would have agrreed to ban the movie?

                You would think they would have been more concerned about whether it was a valid piece of  media, or simply a compilation of lies and attacks (slander)on the character of a "person" in an attempt to steer an election.

                Isn't this my point exactly? Are you saying that it would be OK for the governmet....whether Republican or Democrat....to determine which political speech is allowed?

                Would you be OK with a Republican administration forbiding the showing of M. Moore's productions, if they deemed them slanderous?

                No response so far on whether the written version of the same movies should be banned also.

                These are the fundemental questions which have to be answered before we make the situation worse with an amendment.

                • Not if the Republicans alone deemed it slanderous

                  but I think that if it was found to be slanderous than yes, I would not want Michael Moore's movies to be aired or advertised on television right before an election.  

          • I'm still trying to figure out...

            ...how "corporate personhood" is an issue.  The 1st amendment says "Congress shall make no law...abridging freedom of speech".  It does not say "Congress shall make no law abridging A PERSON'S freedom of speech."

            • But, obviously, it's not that simple.

              Quick quote from Stevens' dissent in Citizens United:

              "Our jurisprudence over the past 216 years has rejected an absolutist interpretation" of the First Amendment . WRTL , 551 U. S., at 482 (opinion of Roberts , C. J.). The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech, or of the press." Apart perhaps from measures designed to protect the press, that text might seem to permit no distinctions of any kind. Yet in a variety of contexts, we have held that speech can be regulated differentially on account of the speaker's identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, 41 prisoners, 42 members of the Armed Forces, 43 foreigners, 44 and its own employees. 45 When such restrictions are justified by a legitimate governmental interest, they do not necessarily raise constitutional problems. 46 In contrast to the blanket rule that the majority espouses, our cases recognize that the Government's interests may be more or less compelling with respect to different classes of speakers, 47 cf. Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue , 460 U. S. 575, 585 (1983) ("[D]ifferential treatment" is constitutionally suspect " unless justified by some special characteristic" of the regulated class of speakers (emphasis added)), and that the constitutional rights of certain categories of speakers, in certain contexts, " 'are not automatically coextensive with the rights' " that are normally accorded to members of our society, Morse v. Frederick , 551 U. S. 393, 396-397, 404 (2007) (quoting Bethel School Dist. No. 403 v. Fraser , 478 U. S. 675, 682 (1986) ).

              [footnotes] 41  See, e.g., Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 682 (1986) ("[T]he constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings").

              42  See, e.g., Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U. S. 119, 129 (1977) ("In a prison context, an inmate does not retain those First Amendment rights that are inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system" (internal quotation marks omitted)).

              43  See, e.g., Parker v. Levy, 417 U. S. 733, 758 (1974) ("While the members of the military are not excluded from the protection granted by the First Amendment , the different character of the military community and of the military mission requires a different application of those protections").

              44  See, e.g., 2 U. S. C. ยง441e(a)(1) (foreign nationals may not directly or indirectly make contributions or independent expenditures in connection with a U. S. election).

              45  See, e.g., Civil Service Comm'n v. Letter Carriers, 413 U. S. 548 (1973) (upholding statute prohibiting Executive Branch employees from taking "any active part in political management or in political campaigns" (internal quotation marks omitted)); Public Workers v. Mitchell, 330 U. S. 75 (1947) (same); United States v. Wurzbach, 280 U. S. 396 (1930) (upholding statute prohibiting federal employees from making contributions to Members of Congress for "any political purpose whatever" (internal quotation marks omitted)); Ex parte Curtis, 106 U. S. 371 (1882) (upholding statute prohibiting certain federal employees from giving money to other employees for political purposes).

              46  The majority states that the cases just cited are "inapposite" because they "stand only for the proposition that there are certain governmental functions that cannot operate without some restrictions on particular kinds of speech." Ante, at 25. The majority's creative suggestion that these cases stand only for that one proposition is quite implausible. In any event, the proposition lies at the heart of this case, as Congress and half the state legislatures have concluded, over many decades, that their core functions of administering elections and passing legislation cannot operate effectively without some narrow restrictions on corporate electioneering paid for by general treasury funds.

              47  Outside of the law, of course, it is a commonplace that the identity and incentives of the speaker might be relevant to an assessment of his speech. See Aristotle, Poetics 43-44 (M. Heath transl. 1996) ("In evaluating any utterance or action, one must take into account not just the moral qualities of what is actually done or said, but also the identity of the agent or speaker, the addressee, the occasion, the means, and the motive"). The insight that the identity of speakers is a proper subject of regulatory concern, it bears noting, motivates the disclaimer and disclosure provisions that the Court today upholds.

            • an amendment is as an amendment does

              ...how "corporate personhood" is an issue.  The 1st amendment says "Congress shall make no law...abridging freedom of speech".  It does not say "Congress shall make no law abridging A PERSON'S freedom of speech."

              Amendments, by definition, cannot occur in a vacuum.  The context, in this instance, is an amendment to the US constitution, which begins with the words, WE THE PEOPLE.  That phrase is foundational to the entire document. That's why 'corporate personhood' is a dangerous thing: it starts to include something other than 'We The People'...  

              It does NOT say, "We The People... and assorted other corporeal forms which might someday, for reasons of juridical efficacy, be understood to be sorta-kinda-almost-just-like-a person...

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