There have been posts here about the various petitions going around, but here is a very important one that hasn’t been mentioned. There is a ballot initiative to amend the Constitution of the Commonwealth based on “Corporations are not People, Money is not Speech.”
In recent years corporate spending to manipulate elections has grown out of control. We must pursue all avenues to fix our democracy so that we can work on real problems like climate change. Massachusetts has already done seemingly all we can by electing progressive representatives and senators and passing resolutions directing them to amend the U.S. Constitution. It turns out there is still something much stronger than a non-binding resolution we can do right here in Massachusetts.
Pass Mass Amendment is a grassroots group of local activists working with no funding. I have been helping them collect signatures for this initiative for the last few weeks, and I ask for your help.
The premise of the amendment is that the Constitution of Massachusetts enumerates rights of persons, not corporate entities. The amendment does not change this – it merely clarifies it in order to empower the people to reform political spending by making it easier for ballot initiatives to go forward without tripping on excluded matters. My hope is the clarification will also help and motivate the legislature to regulate campaign finance, but one of the main goals of the movement is to remove a stumbling block for future ballot initiatives.
Money in local elections
Money in politics is a problem at least as much locally as it is nationally. For example, the post on money in the mayor’s race from just the other day. In some cases local elections are even more vulnerable to outside spending than national ones because it takes so much less money to have a great effect.
Massachusetts leading the way
The U.S. Constitution is largely based on the Constitution of Massachusetts. Our state Constitution enumerates rights of persons, not corporate entities. Asserting this makes the current SCOTUS’s interpretation of the U.S. Constitution to guarantee rights to corporations ever more tenuous.
Similar movements are popping up throughout the country (1, 2, 3, 4, 5). What happens when states across the nation assert that corporate entities do not have constitutional rights?
Most importantly – this is a clarification. We (myself and the group) do not believe it legally changes anything. Particularly, as well noted by a BMG editor, the idea that a corporation has a “right” to “speech” is absurd.
For questions about the impact, if any, this has on business, I direct you to the FAQ for Rep. Jim McGovern’s federal People’s Rights Amendment.
What about SCOTUS?
Short answer: This is not legislation. More from the FAQ:
We can amend the Massachusetts Constitution and the Supreme Court would not get involved until a law was passed, someone sued, and it could then go to the Supreme Court. It would be the early 2020s before anything to do with our Amendment would make it to SCOTUS. By then, SCOTUS, would not consist of the same Justices.
In addition, the message here is almost as important as the local regulation it may help us, the people of Massachusetts, to create in the future.
The amendment has verbal or written endorsements from a dozen state legislators, including congressional candidate Katherine Clark.
The Constitution of Massachusetts allows the people to pass an amendment by ballot initiative, but it’s a long process. A successful signature drive would put the question on its way to the ballot in 2016. RIGHT NOW, we need 69,000 valid signatures by November 20, with no more than 25% coming from any one county.
Getting the signatures puts the question in front of the Supreme Judicial Court of Massachusetts [to challenge the Attorney General’s decertification]. If the SJC rules the question “legal”, then the question goes in front of the legislature. If 25% of the legislators, in 2 consecutive sessions vote to put the language on the ballot, the question goes to the people. It would be the first constitutional amendment driven by ballot initiative in decades. Whether the SJC agrees to allow us to move forward WE WIN in this DIRECT ACTION, aimed at getting mainstream media attention to the question, “Should Corporations be considered People”?
Again, I ask for your signature and support of this initiative.
The first step in gaining my support is to make it easier for me to read the actual text of what you are inviting me to support.
I believe that text is found here, and reads as follows:
I must say that I have significant concerns about unintended consequences of this language. The very existece of “section 3” suggests to me that this language has the effect of removing a great many protections that are currently enjoyed and much needed by “Corporations, limited liability companies and any other corporate entit[ies]” such as political campaigns, labor unions, advocacy groups, and publishers.
How long will it take for an aggressive right-wing lawyer to argue that a damages suit against a publisher is not an “abridgment of freedom of the press”?
As much as I abhor the CU decision, I fear that actions like this may make an already-bad situation worse.
so much. The courts would read it just to mean “this changes nothing about the law concerning freedom of the press. Proceed as before.”
My problem, though I support the article, is that as a practical matter it changes nothing. The federal constitution, which has been interpreted to mean Citizens United, is the supreme law of the land. It trumps the Massachusetts Constitution.
This would not fly under the radar until the early 2020s. A court, state or federal, hearing any case under this article, would say, “Massachusetts constitution notwithstanding, the ______ at issue violates the plaintiff’s rights under the First Amendment to the U.S. Constitution.” Case done. Even state courts here must apply the U.S. Constitution where it applies.
This is how it worked after the Warren Court revolution: Alabama couldn’t change things by citing a state constitutional ban on interracial marriage, or by amending the state constitution to preclude appointed counsel for defendants, because they were bound by the federal constitution as interpreted by the USSC, like it or not.
And I don’t like it, but we’re stuck. The major value of this amendment would be in showing the way for amending the U.S. Constitution, which will be a much tougher slog.
I included a link, but you are right, it would have been better to post the text. Thank you for posting it.
To me, a major mitigating factor for these sorts of concerns is that, since the initiative is not certified, the SJC will review the amendment before it moves on to the legislature.
A response from Nick Bokron, the first signer:
He also points out that “Corporations, limited liability companies and any other corporate entity” is fairly specific. At least one of the proposed national amendments, promoted by Move to Amend, uses “Artificial Entities”, which is considerably more vague.
from control of the English government and the English corporations.
the Constitution transfered the power to “We the People,” with corporations the servants of the people. Corporate charters were given for a limited time, and corporations were limited to activities necessary to fulfill their chartered purpose and were not allowed to engage in political activity.
The PassMass Amendment does not prohibit political activity, but allows the government to regulate their activity.
PS Political campaigns and PACs are not corporations and are heavily regulated.
Two issues here: practicality and serious policy problems.
Practicality: Why expend progressive capital on something that is symbolic and temporary at best? Look, I hate CU as much as everyone else, but we have some honest-to-god battles to fight: our 36/40 democratic legislature just passed a humiliating welfare reform bill that we need to overturn. We have a broken health care system. Unemployment is still way too high. The minimum wage is below the poverty line. All of these things are more important and more likely to happen then changing the US Constitution.
But aside from tactics, there’s some pretty glaring holes here:
1) People and corporations may already be regulated. This was fully established in Commonwealth v. Alger, and goes back to the common law maxims Sic utere tuo: Use what is yours so as not to injur another. Dating back to common law, this is the heart of the police power: the right of the government to protect the people through regulation. I think that a radical conservative could interpret this amendment to mean that people cannot be regulated, something that would be extremely problematic.
2) “Any other corporate entity” is way too vague. I get that it’s clearer than other proposals, but it’s still extremely dangerous and problematic.
3) This could be interpreted as preventing a corporation from lobbying, which is completely different from contributing money: business interests should be able to petition the government, just like any other interest. To ban this is a slippery slope to restricting freedom of speech. And we all know why that’s important to protect.
4) Section 2 is not specific to corporations, and I think that it would certainly apply to PACs, 501(c)(4) groups, campaign committees, and political parties. The part that says that “regulation of any advertising for or against any candidate in a primary or election for public office and any ballot measure” is particularly troubling to me.
Views expressed are mine alone.
In the sense that the ‘personhood’ amendments proposed to ban abortion in MS were so vague as to cover nearly any form of contraception, so even the voters in that regressive state realized it went too far. Similarly, any kind of amendments here would open the door to allowing the government to regulate speech, and doing so will be quite problematic if the conservatives take charge again. I don’t see how labor, public sector unions in particular, could operate freely in Massachusetts, since a conservative or John Connolly could easily argue its a business or organization that hurts the common good of the Commonwealth.
While Section 1 and 3 are problematic, I would argue section 2 has some merits. Stating that the financing of electoral campaigns is subject to regulation by an election commission would go a long way to eliminating some of the corrosive influences of money in campaign. That said, the Supreme Court already overturned the Montanan statute from the early 1900s significantly limiting corporate influence, so I doubt the current court would rule differently regarding similar laws from our state.
There are certainly more pragmatic reasons to focus on a different law as well. The proposal I discussed here last May backed by Harvard Law professors Charles Fried and Lawrence Lessig would really level the playing field. Rather than regulate speech or go through the added political trouble of changing existing laws to eliminate corporate interest, we can instead create new incentives and sources of public funding to reduce corporate influence and make it irrelevant. Cambridge is a good example of a locality where matching funds have really leveled the playing field in local elections, I’d imagine MA could pass a similar law statewide and ensured the funding came from a set pool that could not be touched by the legislature. This continues to allow a free marketplace of ideas within the realm of political speech while ensuring minority voices, and voices not backed by moneyed interests, have an equal say. I think laws like that are the best we can achieve until we have a progressive majority on the court willing to overturn Citizens United.
The Arizona matching funds law was also overturned by the Supreme Court. That ruling when read, truly boggles the mind with it’s preposterous logic.
by legislation and clearly defined by legislation.
There was a time when an elected official said that if they get 10 phone calls from people, they know to take action. The influence that people used to wield to protect their values is now overwhelmed by corporate money and power.
Before money = free speech and corporations were people, we had fair taxation and the US was tops in education, healthcare, manufacturing, transportation and innovation. Corporations do not have the same interests as people.
True their are many issues that compete for our attention, but it may be easier to effect solutions without the interference of corporate money.
But I’m biting – what is the danger and threat of allowing us to regulate the influence of corporate campaign spending and lobbying?
Which section are you referring to?
I don’t really see this as a downside. Individuals, be they employees or executives or shareholders, whether their interests are aligned with those of a particular business or not, have a constitutionally protected right to petition the government. When you start talking about corporations lobbying you get back to the question of “what does it mean for a corporation to ‘speak’?” A corporation, an abstract legal concept, cannot speak. This metaphor generally boils down to spending money, which is not “speech” – the metaphor does not work. A corporation can (philosophically speaking, not necessarily legally) spend money from its treasury to contribute to a candidate’s campaign or buy him lunch, or various other combinations of money in exchange for access. This is, as most people would call it, bribery, so let’s set aside that form of corporate lobbying as clearly not protected. (Of course, Scalia and the Roberts Court disagree at least in part, for anything that falls short of money in exchange for votes).
A corporation can also pay an employee or contractor (a “lobbyist”) to petition the government – to speak – on its behalf. To avoid the bribery argument let’s say the lobbyist uses personal connections, not monetary contributions, to get access. I suppose your concern is whether that form of employment is constitutionally protected and, if not, where one would draw the line between a business owner or employee petitioning the government for his own interests that happen to align with those of a corporation and one who is expressly paid by the corporation to petition for its interests.
At least for referendum petitions, the Massachusetts Constitution is explicit about this (The Referendum, General Provisions, I) (granted, the SCOTUS disagrees):
Putting down the slippery slope argument for a moment – I hope we can all agree that this sort of corporate influence in government is something we want to reduce drastically.
That said, this changes no law. The amendment in itself certainly does not prevent a corporation from lobbying.
People may be regulated as you describe as long as the regulation does not infringe on the rights listed in the Declaration of Rights. Without that qualification, that’s a scary statement, especially when you combine “people and corporations”, where the latter do not have inalienable rights.