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.