President Obama’s weekly address today blasted the Supreme Court’s 5-4 decision in the Citizens United case that struck down the McCain-Feingold restrictions on corporate spending in elections. In overruling the Austin v. Michigan Chamber of Commerce case, Citizens United effectively invalidates laws in 24 states (including Massachusetts) that restrict use of corporate funds in elections. He calls for a “forceful” response.
If President Obama is correct about the impact of the decision, and I think he is, it seems to me that “a forceful, bipartisan response” is a 28th Constitutional amendment to restore the First Amendment, and control over corporations, to the people. This is what the Free Speech for People campaign that was launched in response to the decision is trying to do. (Disclosure again: I’m working as counsel to the campaign). This is picking up steam and Congresswoman Donna Edwards is expected to introduce amendment language soon. President Obama’s leadership on this effort would be powerful, and his use of language such as “strikes at our democracy” suggests that he ought to be inclined to do so.
Absolutely right on, in my humble opinion! Thom Hartmann can be heard to discuss and protest the line of decisions by The Supremes that wrongly treats the notion of personhood for corporations as sacred stare decisis.
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p> I’m having a hard time wrapping my mind around the reluctance of so many Democrats (seems like our president is now among them) to name names and state facts. The math of insurance company profits on health coverage, the reality that the bill as now written and awaiting response doesn’t limit the premiums insurance companies can charge to those that it would prefer to exclude, what real “luxury” insurance policies pay for that’s ‘way above the complete coverage some labor unions provide. Shouldn’t there be a televised “White House roundtable” including health insurance expert from Consumers Union, Michael Moore, Ralph Nader, Robert Reich, AMA committee of doctors favoring single-payer plans, etc. etc.?
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p> The underlying issue is the burgeoning aristocracy of wealth in our beloved country. We need to focus on the work of folks like Jamie Johnson who’s shined the light of his cameras on the attitudes and actions of the ultra wealthy that are the driving forces behind corporate funding of elections. Those folks really believe that they’re born to rule. Western civilization has been there before.
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p>While we’re at it, the 11th Amendment was wrongly decided to boil down to, “the king can do no wrong” by requiring states to consent to being sued by their own citizens, this derived from the clear language of the 11th to forbid citizens from one state suing another state’s government. Bork defended that one by saying it had been in place as case law for so long that it should just stay where it is . . . but not Roe v. Wade. [just an aside in honor of the 37th anniversary yesterday 🙂 ]
The Wikipedia explanation of when a Corporation is – and is not a person has some good bibliography. Essentially, though, a “legal fiction” is when due to case law or settled custom, courts and government pretend something untrue is true.
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p>Note that the Wikipedia entry had not been updated, and predicted/considered that corporations and similar entities are neither entitled to, nor should they be entitled to free speech protections.
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p>In fact, the USSCT created this doctrine in 1883, in the Santa Clara County decision, see discussion of Santa Clara County decision Apparently, Court Reporter J.C. Bancroft, in pre internet days, added language into an official report which is the entire genesis of the corporate personhood legal fiction, and the new, repugnant Citizens United decision.
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p>Therefore, if a “Defense of Marriage Act”, or “DOMA”, can define marriage as being a legally recognized union between a man and a woman – without amending the constitution, why can’t a “person” be defined by legislation as “live flesh and blood human being, who is currently alive” for purposes of entitlement to constitutional rights, such as “free speech” from the Bill of Rights?
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p>My preliminary analysis says this WOULD work; i.e., the cumbersome process of amending the U.S. Constitution is NOT needed, but rather an amendment to the United States Code, by passage of legislation such as was done in DOMA.
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p>Shall we call it the Defense of Humanity Act or DOHA?
The notion that corporations are persons should not be based on the Constitution but unfortunately, the Court, erroneously in my view, has put the notion into the Constitution. That makes the statutory solution untenable. For example, the Court in Citizens United just held that Congress/the US code can’t ban corporate campaign expenditures, and overruled not only McConnell but also Austin (which had upheld state law bans on corporate campaign expenditures). In other words, the majority is assuming (again, wrongly) that corporations are Constitutional “persons.” There’s a lot of background on the Supreme Court cases that got us to this point here
If the definition of “person” is changed in the USC that should take care of this.
I don’t trust our federal lawmakers not to put poison pill additions to a law. They let us know they don’t work for us. What can be done within a state suits me. (Unless the 10th Amendment is killed.)
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p>Since the state breathes life into the corporation, cannot the state regulate what that life is to encompass? Some interstate law, much like the Uniform Commercial Code, that applies to commercial transactions could serve. The rights of the corporation could be defined in this code and the code agreed to by each state.
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p>”The twentieth century has been characterized by three developments of great political importance: the growth of democracy, the growth of corporate power, and the growth of corporate propaganda as a means of protecting corporate power against democracy” –Alex Carey
Gross! 183 pages!!!
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p>http://www.supremecourtus.gov/…
… found here
At this point, I’ve heard Obama launch a stirring call to action followed by absolutely nothing on so many issues. Wasn’t Guantanamo supposed to be closed by now? Sure, Obama found a prison in Northern Illinois ready to take the inmates. Now he claims that Congress won’t give him money to make it happen…even though he’s spending billions more on bribing states to open the gates to charter schools.
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p>Remember Employee Free Choice?
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p>Fact is, until Obama starts spending some of his dwindling political capital on something, I’m going to weigh the words of Nancy Pelosi with more seriousness than those of the president.
We can’t pass a simple bill, without descending into partisan gridlock. How can we possibly pass a Constitutional amendment, in Congress alone, let alone throughout the 50 states to get enough to ratify it for passage? It would be interesting to look at the amendments that have been ratified, and compare them to the political climate that existed during their creation. I think we’re so polarized as a country, that it would be impossible to come to a consensus, then get it ratified.
The First Amendment DOESN’T give you the right to free speech, it says the Government cannot censor you.
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p>The Bill of Rights are what scholars (including Obama) call “negative liberties”.
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p>That is, they are a list of things the government cannot do to you.
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p>The government cannot tell me, or you, to take down a sign on my lawn that says “Impeach Bush” or any such. My condo association CAN. Because they are not an agent o Government.
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p>You’re all getting hung up on whether a corporation is a person or not. It doesn’t matter. it’s the speech that matters, not the source.
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p>During oral arguments, the Respondents where asked if the BCRA of 2002 (McCain-Feingold) could ban books, because, after all, many publishers are corporations. The answer was yes.
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p>Under the BCRA of 2002, THIS BLOG would be illegal, because it is the creation of a corporation (BMG Media Empire LLC).
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p>This is a great victory for free speech. The government should never have the ability to limit speech, not matter it’s source.
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p>We don’t need to “amend” the First Amendment. It’s fine as it it.
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p>And passing a law saying a corporation isn’t legally a person won’t stop the right of any entity, person, non-profit, a Blog hosted by a LLC, or Exxon Mobile, for having the right to express themselves under the First Amendment.
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p>It matters very much. The issues at stake are at least second-order issues: that is to say they derive from the implications of other decisions, themselves derived from implications of other decisions.
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p>When the founders wrote the constitution the notion of corporation was entirely different, and distinct, from what it is now. in addition, they were limited in number.
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p>Well after the constituion was written and put to use, the Supreme courts made two separate and distinct decisions: corporations are persons (entitled to protections provided by the 14th amendment, not by the first…) and money is a form of free speech. The decision to award ‘personhood’ (again, in relation to 14th amendment due process rules) to corporations was a relatively innocuous (read: not debated) decision at the time.
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p>Some enterprising corporate whore then realized that those two separate and distinct decisions provided for direct corporate involvement (intervention?) in elections. This was in the ’70s in Massachusetts and the decision was on first amendment grounds. The First National Bank of Boston wanted to run ads opposing the implementation of a progressive income tax.
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p>So:
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p>When the founders wrote the constitution, they never conceived of corporations as persons
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p>When the Justices decided a corporation was a ‘person’, they never conceived that such a ‘person’ would someday feel the need to express themselves under the first amendment.
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p>When the Justices decided that money was free speech, they likewise never conceived that a ‘person’ with due process rights under the 14th amendment would need, nor want, to express itself under the 1st amendment.
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p>But there you have it…
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p>This is not a victory for free speech and you’ve touched upon the reason why..
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p>Free speech protects are in place not because speech is precious (though it is), but because the state has both a louder voice and the ability (if not the right…) to compel silence. The first amendment is an explicit recognition of the raw power of the state and the absolute inability of the individual, on their own, to match the power of the state. The first amendment, as you point out, is not a permit to speak but a limit on the power of the government.
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p>So far, so very good, no?
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p>But what happens when a third party enters, not, perhaps, wholly possessed of the raw power of the state, but, to be sure, with power many orders of magnitude greater than that of the individual? Certainly corporations, some of which have their own security (police) force and which hold a special form of suasion over public debate, would, I daresay, fit this definition. If the amendments are checks on power, why is that power limited to governmental power?
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p>I submit that it would a failure, and a false reading, of the first amendment to limit one form of power (governmental) all the while enhancing and extenuating another form of power (corporate).
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“Congress shall make NO law…abridging the freedom of speech or of the press…”
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p>It seems to me that any law prohibiting any entity, be it an individual, civic group, corporation, union, non-profit, etc from spending their own money to get a message out arguably runs afoul of the above provision. The only way I see around it is by tying a sacrifice of free speech to other legal privileges. An example of this would be that churches lose their tax-exempt status if they endorse candidates.
…between speech, religion, press assembly (of the people) and petition argues, IMHO forcefully, for, well, distinctions. I would argue that corporations, much like religions, are more a form of assembly and less about speech.
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p>Separately, and distinctly, Supremes decided two separate and distinct things derived soley from implication: that corporations were ‘persons’ and that money was speech. The follow on implication, of those two implications, is that if corporations have money and are persons, then they have free speech rights. Most of the past (and present) Supremes themselves, as I understand and read them, find it implicit that to have free speech you must be a person. It’s kinda mind-boggling to think that the chain of ‘logic’ here hasn’t long since broken into the tiniest of pieces. The ‘personhood’ of corporations, too, was decided upon 14th amendment due process grounds (corporations can sue and be sued and can’t be exempted from due process) and, at the time, had no bearing upon speech issues.
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p>As I said, these are second order issues: they are not directly addressed in the constitution, but only derive from implications of later decisions. By way of example consider Jewish dietary laws, specifically the prohibition against meat and dairy in the same plate. Deuteronomy 4:21 says “you shall not boil a kid (young goat) in it’s mothers milk” (some translations have ‘calf’ instead of ‘goat’…) The prohibition derives from the injunction not to follow or perform pagan rituals and the practice of boiling goats in mothers milk as done by the Baal cultists. Well, no Jew in the past few thousand years (or so) has come anywhere near a worshiper of Baal… but they still can’t eat a cheeseburger (if they wish to keep kosher). This is an example of a second order effect derived from implication.
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p>As the thinking around speech and corporations is comprised of ‘follow-on’ implications, I don’t think it has the force of settled law… and, indeed, as proof of its facile nature, I offer the ease and swiftness with which the 5 Supremes swept it away in Citizens United, and the straight faces with which they did it: they may not know exactly the amount of ‘fudge-factor’ they are working with, but they know it is substantial.
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p>The implications that are elided are more a concern for me: If a ‘corporation’ is a ‘person’ and it is also made up of ‘persons’… then aren’t you amplifying the voice of some and nullifying the voice of others?
Suppose, for example, that we went all the way and gave corporations the right to vote… Well, if the corporation can vote, and individual members can vote, doesn’t that amplify (double-dip) the vote of those individuals who vote in like manner with the corporation? And doesn’t that nullify the vote of those individual corporate members who are in disagreement with the corporation? Why is this any different with free speech? (hint: it’s not…)
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The President should really get behind this. This goes to the core of what it means to be a Democrat. I’ve had my issues with the party over the years, I was ashamed when it rolled over on Iraq back in 03, ashamed of its continued lock step support of abortion on demand, but at the end of the day the Republican party, as good as it might be on some issues, will always be the party of corporate America. In the late 1800s and early 1900s the Republicans were the progressive party on social issues and civil rights, unlike today, but they were always the party of big business.
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p>Fighting this ruling, even with symbolic efforts like this amendment, is the best way to re-unite the Obama coalition. The independents and small government Republicans upset over the health care bill and spending can be brought back in when they are reminded of how openly corrupt the Republicans are, and hard core lefties, reform minded liberals, and working class and labor Democrats can all unite behind an effort to stop the encroachment of corporate power into our democracy. Forcing the Republicans to vote in favor of their corporate puppetmasters is the best way to kill this populist revolt and remind the American people that one party has always been the party of the people and one the party of the elite. That is what needs to happen and it will really make the distinction clear going into the midterms.