Two years ago today, the U.S. Supreme Court handed down what has quickly become one of its most controversial decisions: Citizens United v. FEC, which went a long way toward wiping out Congress’s ability to regulate corporate spending in federal elections. The Court’s decision was a shocking display of judicial activism, since most of the big questions it addressed were not actually necessary to decide the case. Among other things, the decision fueled the rise of the Super PAC, which is already playing a major role in this year’s presidential race – and we’re just getting started.
The flavor of the month to deal with Citizens United seems to be a constitutional amendment to revoke the judge-made doctrine that, at least for some purposes, corporations are people and therefore get to exercise some constitutional rights. Several proposed amendments have been introduced in Congress. Rep. Jim McGovern has introduced one, called “The People’s Rights Amendment,” and today he has an op-ed in the Globe making the case for it.
Here’s the text that McGovern introduced:
‘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. The words people, person, or citizen as used in this Constitution do 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, freedom of association and all such other rights of the people, which rights are inalienable.’.
That would certainly do away with Citizens United. But it seems to me that it would have a lot of pernicious effects as well. Simply put, this proposal goes too far, and, in my view, it needs to be dramatically rethought.
The big problem with the People’s Rights Amendment is that it doesn’t just eliminate free speech rights for corporations – as I’ve written before, I think that “corporate speech” has always been a confused notion that we should think seriously about eliminating. But the People’s Rights Amendment goes much further: it eliminates all constitutional rights for corporations. And that could be a big mistake.
Consider one obvious problem: under the laws of (I believe) every state, corporations can own property, and there are good reasons to allow them to do so. Under current law, the government cannot take property for public use, even if owned by a corporation, without paying just compensation. That’s one of the Fifth Amendment’s central guarantees. But as I read the People’s Rights Amendment, the Takings Clause would no longer apply to corporations. Once ownership of property is transferred to a corporation, the government would be free to seize it for any reason, without paying for it. Is that really such a good idea?
Similarly, do we want the police to be able to bust into any corporation’s offices, search the files, and take what they want, without a warrant or a good reason for doing so? If the Fourth Amendment doesn’t apply to corporations, that would seem to be legal. Do we want corporate property seized without due process of law? If the Fifth Amendment doesn’t apply to corporations, that, too, would seem to be legal.
The thing to bear in mind is that, for the most part, the Constitution’s protections are negative: they prevent government from doing things that it otherwise might want to do. By stripping away constitutional protections, the power of an overreaching government is increased. Now remember that if Newt Gingrich wins the SC primary today he’ll be a lot closer to becoming president, and you see the problem.
I’m all for creative solutions to deal with the problems created by Citizens United. The DISCLOSE Act, which would have dramatically improved disclosure rules for corporate political spending, was a good idea – in 2010, it passed the House but failed by a single vote in the Senate (thanks for nothing, Scott) and should be revisited when the votes are there. And there are other ways of tinkering with the rules governing corporations that could help address the problem. As for amending the Constitution, Senator Tom Udall introduced an amendment that is limited to restoring the ability of Congress and the states to regulate corporate influence on elections. It’s not as sexy as The People’s Rights Amendment, but it seems to address the main problem with Citizens United without creating a host of other difficulties.
I fully agree with this part of Rep. McGovern’s concluding paragraph:
We need a serious, thoughtful debate in this country on the role of corporations in our lives.
We do indeed. And it’s essential that that debate include careful consideration of the consequences of the various proposals under consideration to deal with the Citizens United problem.
I just got an email signed by Sen. Sheldon Whitehouse urging me to visit this website and sign their petition to “Reverse Citizens United.” Problem: one searches the website in vain for the text of their proposed amendment! You have to Google around to find what they’re talking about, which appears to be Senator Udall’s “campaign finance only” amendment I mentioned in the post.
That’s very bad website design, and it’s also a good example of failing to spur the “serious, thoughtful debate” that McGovern calls for.
doesn’t bother me as much as government treading on individual human beings. Corporations are creatures of the state, right? Seems the government would still owe the shareholders compensation for corporate property seized through eminent domain, regardless of whether corporations are treated as American citizens. (question: could a corporation be sent to Guantanamo, under current law or under the proposed amendment? And would they be entitled to habeas corpus? The whole thing is a little baffling, to be sure).
But perhaps best to wait for a better Supreme Court, rather than resort to amending the constitution.
As co-author of Rep. McGovern’s op-ed today, first let me say thanks for the thoughtful piece, David. Not surprisingly perhaps, I don’t agree with you. We can’t “eliminate” Constitutional rights of corporations unless they exist in the first place. The 5th Amendment (and 14th) protects life, liberty and property of persons. That’s the bottom line. Now, that doesn’t mean the parade of horribles you suggest is OK. Rather it means we need to start with the premise that it is the rights of people that are at stake. If some government taking of property held bya corporation raises a Constitutional due process taking question, it is because the corporation itself is property. The people who own shares might, or might not, have a viable claim but it is not because the corporation is a Constitutional person. Free Speech for People has a lot of background on this on the resources page, and here’s a FAQ we did with the American Sustainable Business Council.
I have a lot to say about this, but no time right now to say it. I’ll try to write more on this in the next couple of days.
It would be better if McGovern’s Amendment was passed.
Right now, rich people and organizations buy the government with campaign contributions.
A lot of this money comes from corporations, but some also comes from individuals.
Corporations are legally required to maximize short term profit for shareholders.
The Amendment does not deal with rich individuals. But, it would open up the possibility of cutting corporate contributions to campaigns, which will make candidates less sympathetic to big corporations’ cheap labor agenda. And, remember, cheap labor maximizes profits.
If corporate assets are confiscated without compensation by the government, the shareholders could bring the government to court for compensation of the value of their shares in the company as individuals, or with a class action lawsuit.
US Constitution, Article I, Section 5:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.
Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
Based on the above section of the Constitution, the Senate and House could be browbeaten into forcing its members to not take too much money from rich individuals, too, on threat of expulsion.
To win, you have to do everything to get power and use power. Big Business has already done this in the last 30 years. It’s our turn now.
I have to agree with David, the unintended consequences are drastic and could easily be abused, and I for one would rather the Constitution enable rights rather than restrict them, even if they are for forces or groups I normally dislike. Enabling the people through Congress and the States to regulate corporate donations seems to be the sensible route to go. Such a limited amendment, like the one proposed by Sen. Udall, would not cast the dangerous precedence of taking away rights granted currently by the Constitution such as personhood or freedom of speech, but rather hit at the heart of the matter. Money is not speech and by asserting this in plain language in the Constitution we can empower local,state, and federal governments to regulate the flow of money to politicians and enable sensible regulations on campaign finance.
Remember folks, labor unions are corporations and this amendment would enable Gov. Walker to eliminate them completely and would likely be the death knell of labor in the ‘right to work’ states, also we could see various politicos use these new powers to take out their opponents businesses, etc. and it would severely limit property rights and freedom of enterprise. The corporation is necessary to American life but these days all too present in its political life, restoring the balance back to the citizens of the country is vital, but finding the best means to do that is even more so.
Cigarette companies are suing – and post Citizens United winning lawsuits to block the warning labels current required on cigarettes – as a violation of their personhood and as deserving 5th Amendment rights.