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.
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!
He was never much of a junior senator. Maybe he’ll be a decent senior senator.
having to do with Kerry’s self-interest in denying the opposition unlimited funding.
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p>Not that I’m sure that’s his motive, but after his tepid showing in the health-care debate, I am surprised at this.
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.
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.
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.
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p>There’s got to be some statutory way to do this and still be in compliance with Citizens United until Scalia kicks the bucket.
And we’re not talking about freedom of speech for people, we are talking about freedom of speech for corporations, which are not people.
Depends on who replaces him.
teaming up to do business and so forth?
are each entitled to speak individually if they are so inclined, including with their personal funds.
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?
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.
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p>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.
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.
Writing in the Boston Globe, BC Law Professor Kent Greenfield suggested that changing corporate laws could do the trick.
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p>Specifically, he suggested limiting corporate spending (I won’t call it speech) as a condition of being listed on national securities exchanges.
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p>So most big companies would have to choose: capitalist enterprise, or advocacy group?
There are 5 justices over 70:
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p>Stevens (89)
Ginsburg (76)
Scalia (73)
Kennedy (73)
Breyer (71)
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p>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.
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p>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.
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.
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p>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.
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.
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p>Is that understanding not correct?
But you said there are two liberals over 70. There are three – Stevens, Ginsburg, Breyer.
you insensitive clod 😉
Before O’Connor retired, she was a typical swing vote and Kennedy was seen more as a conservative. Strange that perceptions have changed.
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p>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.
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p>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…
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?
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?
Especially with all that corporate money flowing to defeat the constitutional amendment.
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.
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p>Slightly off the subject but germaine to the diary from David…
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p>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.
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p>Let’s just fix it with some “commerce” laws and hold off on changing the Constitution.
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p>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.
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p>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.
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!
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p>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.
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.
I agree with Senator Kerry. The government should decide who may and who may not enter the political discorse.
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p>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.
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p>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.
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p>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.
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p>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.
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p>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.
I’ve already admitted that I depend on my Senator to protect me from certain speech…..what don’t I get?
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?
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).
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p>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.
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p>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.
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p>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?
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p>Would you be OK with a Republican administration forbiding the showing of M. Moore’s productions, if they deemed them slanderous?
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p>No response so far on whether the written version of the same movies should be banned also.
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p>These are the fundemental questions which have to be answered before we make the situation worse with an amendment.
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.
…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.”
Quick quote from Stevens’ dissent in Citizens United:
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p>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‘…
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p>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…