Don't Blame "Corporate Personhood"

American politics is in trouble. A tsunami of unaccountable, untraceable political money is overwhelming the Republican race for the presidential nomination and threatens to do the same to the fall election. For many people, especially progressives, the culprit is easy to name: the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, which swept away any limits on election-advocacy ads by corporations, unions, and “independent” political-action committees (PACs) and issue groups. Many progressives believe that Citizens United “made corporations people” and that a constitutional amendment restricting “corporate personhood” will cure this political ill.

Citizens United is a bad decision. This obvious fact may even be dawning on the Court’s conservative majority, which is taking a surprisingly leisurely look at American Tradition Partnership, Inc. v. Bullock, in which the Montana Supreme Court directly challenged Citizens United, in essence telling the justices that they didn’t understand the first thing about politics. Justices Ruth Bader Ginsburg and Stephen Breyer, dissenters in Citizens United, have publicly stated that American Tradition may offer an opening to limit or even overturn the malign precedent.

But the problem didn’t start with Citizens United and can’t be fixed by a corporate-personhood amendment. The threat to American self-government runs far deeper. It started nearly 40 years ago, when the Court first became involved in campaign-finance cases. Four decades of decisions have allowed the rich and powerful to transform free speech—our most important tool of bottom-up self-government—into a means of top-down social control.

To understand what’s wrong with free-speech doctrine in the 21st century, consider a question put from the bench by Chief Justice John Roberts during oral argument in a case called Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.

In 1998, the voters of Arizona created a voluntary public-financing system, in which a candidate who agreed not to solicit or spend private funds would receive state funding. Public financing is a great idea; it frees candidates from the need to truckle to wealthy donors. Under current constitutional doctrine, though, it can’t be made mandatory. Candidates who refuse to take part in the system can often raise much more (from their own funds or from contributions) than the amount allotted to their challengers by the state. To address this concern, the act provided that if a privately financed candidate spent more than a publicly financed candidate’s allotted funding, the publicly financed candidate would receive additional money to allow a competitive election. The law didn’t match the private campaign dollar for dollar, but it did give the publicly financed candidate a second infusion of cash.

Right-wing political groups challenged the additional-funding provision. They argued that it infringed the free-speech rights of privately financed candidates, because those candidates might hesitate to spend campaign funds if doing so would trigger additional funding for their opponents. 

When the case came before the Court, Roberts asked the state of Arizona’s lawyer, “I checked the Citizens’ Clean Elections Commission website this morning, and it says that this act was passed to, quote, ‘level the playing field’ when it comes to running for office. Why isn’t that clear evidence that it’s unconstitutional?”

Appellate judges are not supposed to go Googling around on argument day in search of new evidence to spring on counsel during oral argument. They are supposed to decide cases only on the record before the Court. Early in 2012, when a government lawyer defending environmental regulations seemed to be straying from the printed record of evidence, Roberts dressed him down. “If they weren’t in the record, I don’t want to hear about them. You appreciate that rule, that we don’t consider things that aren’t in the record,” he scolded. That rule apparently doesn’t apply to the chief justice. 

Roberts’s question showed that he had detected a major First Amendment heresy. Any hint of civic equality, any reference to a “level playing field,” was to him proof that Arizona’s election scheme was invalid. Indeed, the Court invalidated the Arizona law three months later. The Republican right, supported by the conservative majority on the Supreme Court, has decided that freedom of speech is incompatible with equal citizenship. That misunderstanding has done severe damage to our democracy and now threatens to destroy it.

That misunderstanding also explains Citizens United, in which the Court held that corporations must be allowed to fund independent advertising advocating the election or defeat of political candidates. The ban on independent expenditures (which applied only during a time period just before elections) was designed to avoid corruption or the appearance of corruption. Lawmakers reasoned that allowing corporations to jump into a campaign might give them unfair sway over successful office seekers; even if it did not, it would create the impression that wealthy people and organizations can buy influence with the candidates they support. 

The Court, however, laughed off this claim. “Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,” Justice Anthony Kennedy wrote for the majority. “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.” Exactly why this is true the Court did not bother to explain. 

 

What Citizens United means is that corporations and wealthy donors, with their enormous financial resources, can flood the airwaves with ads from deceptively titled issue groups with names like “Americans for Prosperity” and “American Future Fund.” They did this in the 2010 midterms and have now transformed the Republican primaries of 2012, in which secretive “super PACs,” allied with the different rivals for the nomination, have poured millions into small-state contests to fund scabrous attack ads. In February 2012, the Obama campaign bowed to the inevitable and began urging wealthy donors to support its own super PAC, Priorities USA Action. As this suggests, the independence of these groups is a joke; they have become arms of the campaigns, governed by no limits on contributions or contributors. The money race is bound to assume a new and monstrous level as the 2012 campaign cycle moves forward. 

Conservative activists are ready with cases designed to push the Citizens United principle further. In United States v. Danielczyk, District Judge James C. Cacheris dismissed criminal charges against executives accused of diverting corporate funds to the Hillary Clinton presidential campaign. Even the current federal ban of direct contributions from corporate treasuriesunchanged by Citizens United—violates the First Amendment, he said. “Taken seriously, Citizens United requires that corporations and individuals be afforded equal rights to political speech, unqualified,” he wrote. “Thus, following Citizens United, individuals and corporations must have equal rights to engage in both independent expenditures and direct contributions. They must have the same rights to both the ‘apple’ and the ‘orange.’” 

Judge Cacheris’s opinion contradicted what the Supreme Court had said in Citizens United, but it’s likely that the Court will seriously consider his argument when the issue comes before it. Meanwhile, right-wing lawyers are conducting a guerrilla campaign in the lower courts against requirements that donors disclose their identities. This too, the right argues, violates “freedom of speech.” Justices Clarence Thomas and Samuel Alito have hinted that they agree with this position.

The right embraced Citizens United as the most important free-speech victory since the repeal of the Sedition Act. “Any proponent of free speech should applaud this decision,” said Senate Minority Leader Mitch McConnell. “Citizens United is and will be a First Amendment triumph of enduring significance.” Even Newt Gingrich, who often speaks of federal courts as an enemy to be defied or even dissolved, praised the Supreme Court for “its principled defense of our First Amendment rights to freedom of speech, for example in the recent case of Citizens United.

Progressives and moderates have reacted differently. In his 2010 State of the Union address, President Obama scolded the justices seated in front of him, saying, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.”

Much progressive outrage focuses on the inclusion of corporations in the First Amendment. The idea has grown up that the case created corporate personhood. This is because the First Amendment’s guarantee of free speech applies to the states by way of the Fourteenth Amendment, which forbids the states to “deprive any person of life, liberty, or property, without due process of law.” Jeffrey D. Clements, general counsel and co-founder of Free Speech for People, recently published an anti–Citizens United book with the title Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It. Demonstrators outside the Supreme Court on the second anniversary of Citizens United performed a skit in which actors wore large boxes with corporate logos. While a chorus belted out Sesame Street’s song about “a person in your neighborhood,” the boxes tried to blend in with a crowd of ordinary workers and consumers. “I’ll believe corporations are people when Texas executes one” is the legend on one popular anti–Citizens United social-media post.

But the attack on “corporate personhood” reflects both a misconception of Citizens United and the problem with current First Amendment law. The problem is not that corporations are “persons” under the law. Corporations have always been “persons”—that is and always has been, in fact, the definition of a corporation, a “fictive person” able to own property and enter into legal agreements. Also, the problem is not the idea that corporate “persons” have free-speech rights. Of course they do. The idea that corporations have some of the free-speech rights that people have is essential to important Court decisions like New York Times Co. v. Sullivan (1964) and New York Times Co. v. United States (1971), which removed the threat of government censorship from American media. Nor is the problem the idea that “money is speech”; the First Amendment would be toothless if government could prohibit anyone from paying to publish thoughts or being paid to publish them. 

The profound problem with our current law is the idea that free speech has neither nuanced variations nor underlying values. The Court in Citizens United claimed that corporations either must have no free-speech rights or must have precisely the same free-speech rights as natural persons do. There is a middle position. Retired Justice John Paul Stevens explained it to TV host Stephen Colbert in January. “For some purposes, corporations are persons,” he said. “As with natural persons as well as corporate persons, some have different rights than others do. The same rights don’t apply to everyone in every possible situation.”

 

***

 Stevens is correct—as every member of this Supreme Court recognizes. In a 2011 case, the AT&T Corporation tried to bar release of some corporate documents under the Freedom of Information Act (FOIA). The documents had been turned over to the Federal Communications Commission as part of an investigation; once that was concluded, the statute required disclosure to the public. But the corporations invoked an exception in the statute for materials that would be “an unwarranted invasion of personal privacy.” Chief Justice John Roberts, writing for a unanimous Court, ridiculed the claim: “We reject the argument that because ‘person’ is defined for purposes of FOIA to include a corporation, the phrase ‘personal privacy’ in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.”

As Roberts recognized, our laws treat many kinds of “persons” differently for various purposes—citizens are treated differently from noncitizens, minors differently from adults, members of professions differently from nonmembers. Each group’s rights—even important rights like free speech—are treated differently for some purposes. Union officials, for instance, are closely restricted in how they use union funds for political purposes. Lawyer advertising can be restricted in certain contexts to prevent coercion of potential clients. Tax-exempt organizations must agree not to endorse candidates in exchange for their special status. Even this Supreme Court in January 2012 affirmed a lower-court decision that noncitizens residing lawfully in the U.S.—who do have most other First Amendment rights—cannot engage in “electioneering” in U.S. elections.

There is no reason the First Amendment cannot make a similar distinction in assessing the free-speech rights of corporations. That a corporation is a “person” does not mean that its participation in politics has to be free of regulation. The right to form corporations puts a powerful tool in private hands. A corporation can amass huge sums of cash; its management, in most views of the law, must use that money for one purpose only—to increase profits for shareholders. Fictive person or not, a corporation need never “die.” Corporations are meant to be more resilient and more dynamic than any individual can be. The law of free speech, to be anything other than a mockery of democracy, needs to take that imbalance of power into consideration.

 

But the imbalance of power doesn’t stem from the idea of corporate personhood. Reversing corporate personhood won’t win the battle against toxic campaign funding. For one thing, corporations aren’t the only “persons” taking advantage of the lifting of restrictions on independent expenditures. Nevada casino magnate Sheldon Adelson stepped in to rescue Newt Gingrich’s campaign with $16.5 million of his personal funds. Any campaign-finance reform worth fighting for will need to restrict billionaires as well as billion-dollar corporations.

For another, the Court in Citizens United expressly said that it was not relying on the idea of personhood as the basis for its decision striking down the McCain--Feingold Act’s limits on money in electioneering. The Court relied on the nature of the speech itself, not the identity of the speaker. Political speech is the most protected kind of speech under the First Amendment. Thus if by a heroic effort we enacted a constitutional amendment stating that corporations are not people, a future conservative Court would have no trouble striking down limits on corporate political expenditures anyway. Current First Amendment doctrine—dating back nearly a half-century before Citizens United—would make the opinion easy to write.

The opinion would be easy to write precisely because current doctrine has broken loose from the underlying values of the First Amendment. Remember Chief Justice Roberts’s improper question: If a state tries to create a “level playing field,” where the voice of the rich doesn’t drown out that of ordinary citizens, this attempt is automatically unconstitutional. Over the past generation, conservative majorities on the Court have systematically undermined the idea that the First Amendment relates to democratic self-government and civic equality. 

That problem goes back to the Court’s first major campaign-finance decision, Buckley v. Valeo, in 1976. Buckley considered the campaign-finance reforms that Congress passed after the Watergate scandal. In 1972, the Committee to Re-Elect the President mobilized corporate donations around Richard Nixon’s campaign. As never before, the White House and the government operated to serve powerful corporate interests and extort campaign contributions from them in return. After President Nixon’s resignation, the public demanded major reform to the campaign-finance laws, and Congress complied. The new laws limited the amount of money campaigns could raise and spend, restricted individual contributions to political candidates, set up a public-financing system for presidential elections, cut back on so-called independent political expenditures, and limited the amount of personal funds political candidates could spend for their campaigns. 

In Buckley, however, the Court held that the First Amendment did not allow Congress to restrict the total amount raised and spent by privately financed campaigns, to limit the expenditures of the so-called independent committees, or to restrict the amount a wealthy individual could spend on his or her own political campaign. Although the Court did permit Congress to limit the amount any individual could give directly to a candidate, the net effect of Buckley was to halt progress on making American politics fairer, more open, and less dominated by wealthy individuals and corporations.

Like John Roberts in our time, the Buckley majority found the idea of civic equality to be heresy. “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others,” the Court’s per curiam opinion thundered, “is wholly foreign to the First Amendment.”

Really? Wholly foreign?

Wholly … foreign? 

Is equality in speech—the right not only to speak but to be heard—really a sinister, un-American notion? 

The idea does not stand up to scrutiny.

Imagine a meeting of your county board, with an open comment period for citizens to discuss some pending measure. A local organization—let’s call it “Citizens United”—signs up to speak first. Then, when its allotted time is up, the organization’s representatives refuse to yield the microphone. Citizens United has more to say, they argue; government cannot “silence” them to allow others to talk. Other citizens are still free: They can shout their comments from the back of the chamber or fold notes into paper airplanes and toss them in the direction of the board members. 

Would anyone accept this logic?

Or imagine that Citizens United members come to the meeting with privately purchased bullhorns. After their representative has spoken, they use their bullhorns to drown out other speakers. If the chairman told them to stop, would this be “wholly foreign to the First Amendment”? Wouldn’t it be ordinary democratic procedure, designed to make sure that as many points of view as possible are heard?

The private-bullhorn approach is now the dominant view of free speech. The First Amendment exists, in the new logic, to allow those with money to drown out those without. The thrust of much of the Court’s First Amendment jurisprudence in recent years—not just in the campaign-finance area—has been to give increased power to the powerful at the expense of the powerless. A 2007 case, Federal Election Commission v. Wisconsin Right to Life, was an important step on the road to Citizens United. In that opinion, Chief Justice Roberts was self-righteous. “Where the First Amendment is implicated, the tie goes to the speaker, not the censor,” he wrote.

 

***

Sounds good. But it turns out that the tie goes to the speaker when the speaker is a well-funded organization or institution. Individuals don’t fare quite so well. Consider Morse v. Frederick, a case decided the same term, again in an opinion by Roberts. In Morse, an exuberant student stood near his high school as the Olympic Torch went by; when the TV cameras passed over him, he unveiled a banner reading BONG HiTS 4 JESUS. The school principal told him to put the banner away; when he refused, the principal suspended him. 

Roberts saw no problem with silencing the witless stoner. He tortured the phrase “BONG HiTS 4 JESUS” to conclude that it could mean “bong hits [are a good thing].” TV viewers could conclude that the school somehow agreed with this “advocacy” of pot usage. Tie paid the house on that one.

Consider the 2006 case of Garcetti v. Ceballos. A deputy Los Angeles County prosecutor found serious defects in a police affidavit that led to a search warrant and a prosecution. When he told his superiors of his view that the warrant was invalid, they ignored him. The defense counsel asked him, under oath, about his view of the warrant. When he answered truthfully, his superiors transferred him and denied him a promotion. He sued, alleging retaliation for exercising his First Amendment rights. The Court rejected his suit. “When public employees make statements pursuant to their official duties,” the majority wrote, “the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” 

House wins again. 

Students can be silenced when they say something that can remotely be interpreted as favoring illegal drugs. Contrast this with the right of tobacco corporations to advertise their addictive drug directly to students. In a case called Lorillard Tobacco Co. v. Reilly, the Court voided a Massachusetts law forbidding tobacco billboards within 1,000 feet of a school. In fact, the Court went further and held that, under the First Amendment, the state could not even require smokeless tobacco and cigar advertisements in stores to be posted a minimum of five feet above the floor, so that toddlers would be protected from colorful cartoons of Joe Camel.

So for all the chest-thumping about free speech, this Court is more and more solicitous of the First Amendment rights of corporations and powerful organizations and contemptuous of the individuals they seek to silence. Citizens United was not a radical departure but another way station in this grim transformation of the First Amendment. 

Free speech should be—and in the view of those who wrote the First Amendment, would be—an important means by which Americans govern themselves. Without freedom in what we say and hear, we can’t make informed decisions about politics and society. But the far right has distorted it into the primary means by which private forces govern us. The result is a slow subversion of our form of government, from republic to corporate oligarchy.

 

Citizens United has stirred outrage across the board. In American Tradition Partnership, Inc. v. Bullock, even judges got into the act. Late last year, the Montana Supreme Court considered a challenge to that state’s corporate expenditure laws from a well-funded pro-business group that advertised to donors that “if you decide to support this program, no politician, no bureaucrat, and no radical environmentalist will ever know you helped make this program possible.”

The Montana court held that the Supreme Court in Citizens United had not considered the unique facts of Montana’s long tradition of corporate abuse—outright buying not just of legislators and elections but of the offices themselves. In effect, the Montana court defied the Supreme Court’s edict that independent election expenditures could not give rise to corruption or the appearance of corruption: 

The State of Montana, or more accurately its voters, clearly had a compelling interest to enact the challenged statute in 1912. At that time the State of Montana and its government were operating under a mere shell of legal authority, and the real social and political power was wielded by powerful corporate managers to further their own business interests. The voters had more than enough of the corrupt practices and heavy-handed influence asserted by the special interests controlling Montana’s political institutions. … The question then, is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because the shadowy backers of [the plaintiffs] seek to promote their interests? 

That interest in self-government was strong enough to overcome any test the high court could require, the state judges said. “The Supreme Court [in Citizens United] held that laws that burden political speech are subject to strict scrutiny, which requires the government to prove that the law furthers a compelling state interest and is narrowly tailored to that interest,” the state court noted. “Here the government met that burden.”

Montana’s rebellion may be crushed—American Tradition Partnership has now hired James Bopp, one of the lawyers who pioneered Citizens United, to seek a reversal at the Supreme Court. But even if the Court overturns American Tradition, the prolonged public and legal outcry may make it hesitate before extending Citizens United to gut disclosure and corporate-contribution laws. The Supreme Court likes to feign indifference to public opinion, but sustained opposition by states, other branches of government, and the people can temper the justices’ certainty. 

With luck, we can blunt any move to broaden Citizens United in the near future; with tenacity, we can reverse this entire line of cases.

At least a dozen proposed amendments to the Constitution have been introduced in Congress. Cities and counties around the country have passed resolutions protesting the decision. Unfortunately, too many of the proposed amendments and protest resolutions focus on the red herring of corporate personhood. 

What we need is advocacy and discussion aimed at reviving the idea of speech as an essential component of equality and self-government. Most of the amendments proposed so far don’t even mention the idea of “leveling the playing field” or include the most important language—language that would permit the government to institute mandatory public-finance systems with no buyout provision and uniform limitations on independent expenditures by corporations and wealthy individuals. 

Amending the Constitution is a difficult and chancy project. We should undertake it—but only around an amendment that addresses civic equality. A drive to amend the Constitution, if fought intelligently, can be an important mobilizing tool. That’s a lesson we learn from the Progressive Era, when communities and citizens organized around the ideas of popular democracy and economic justice. 

Whether or not an amendment is successful, however, the fight over the ideas behind Citizens United can bear results. For one thing, in the opinion itself, the Court said that governments can require disclosure of contributors’ names—both for campaign contributions and for corporate and other entities that make independent expenditures. If Congress, and state and local governments, enacts strict disclosure requirements, that sends a counter-message to the Court and to the far right—that the people will not sit by quietly while moneyed interests conduct a covert buyout of our democratic system. 

Even if the Court does not overturn Citizens United, American history shows that justices do take into account the popular opposition their decisions stir. A sustained movement can at a minimum make the majority cautious about extending the precedent and set the stage for a future Court to rethink the First Amendment logic that has led our jurisprudence down this blind alley.

The struggle will likely be long and difficult. But it is worth waging, both because we can win concrete gains and because it offers progressives an opportunity to change the national dialogue about the First Amendment. Citizens must unite indeed—around the idea that one-sided, mercenary discourse is wholly foreign to the First Amendment.

Comments

No one anything will solve all the problems. The author is tilting at straw men when he suggests that corporate personhood is not the problem. We have begun circulating a letter to our state reps and senators calling on Congress to pass an amendment to the US Constitution that clarifies 3 things:
1. Corporations are not people and can not claim the inalienable rights of people. Corporations are a piece of paper called a charter, a commercial convenience with only the limited, very limited characteristic of "juristic personhood."
2. Money is not political speech. Unlimited money to pursue political ends is the ability to monopolize speech. Corporations are entitled to "commercial speech". Political speech is guaranteed to natural persons under the 1st Amendment.
3. Money is a tool that can enhance or extend political speech, and as such may be regulated to prevent a monopolization, an unrepresentative volume of political speech by those with vast wealth. Congress and the states may regulate the use of money in political campaigns for candidates, issues and initiatives and referenda to include public financing of campaigns as they see fit.

Even with the passage of such an amendment, America will still have many, many problems to solve. Much more will need to be done. But this is the "One Ring to rule them all...." This begins to level the political playing field.

The wealth and income chasms will have to be narrowed significantly, something we were on track to do until the early 70s. The environment will need serious remediation and new protections put in place. Ownership of natural resources will have to be better thought out and the benefits of their use shared more equally. Productivity gains will have to be better shared, as they were for the first 25 years following WWII. The concepts of GDP and growth will need to be reconsidered, redefined and new measures created.

Our political system has occupied itself for decades and centuries attending to peripheral issues, avoiding the really difficult issues of basic humanity. Instead of hoping that somehow, some way our schools will magically remake the ethos of selfishness and greed into the brotherhood of man, we will have to tackle these issues or surely face global catastrophe. The times of denial and avoidance are over. We've run out the clock.

"We have serious problems to solve, and we need serious people to solve them." Instead of sniping at those who are addressing them straight on, the author might do well to just stick to solutions.

Mr. Epps most recent column, assailing the Citizens United Supreme Court decision, failed to mention that the decision applies equally such that very large, well-financed labor unions, e.g., the U.A.W. and the AFL/CIO may likewise use union treasury funds identically in partisan political promotions, likewise entitled to do so by force of the First Amendment. So, too, zealous organized partisans of the left, like those of the riight, may seek to sway elections by persuading a credulous public to vote and to elect into office such persons these highly influential organizations most favor and from whom they may hope ro most benefit.
Even milllionaires are by no means merely on 'the right," as one quickly thinks at once of George Soros or of Ms. Huffington and her highly partisan (sometimes even, one may say, quite virulent) POST.
I'm personally quite fond of Mr. Epps, but it is nonetheless true that his columns as as predictably skewed in their own way as, say, Bill O'Reilly's nightly telecast is likewise skewed in his own (utterly partisan) way as well ("fair and balanced...baloney'). Fortunately for them (and, indeed, I think fortunately for all the rest of us, too), The First Amendment shelters their wordy efforts to influence us, albeit in opposite directions, nor, I really think, would we want it to be any other way.
Wm. Van Alstyne.
Lee Professor of Constitutional Law

Mr. Epps most recent column, assailing the Citizens United Supreme Court decision, failed to mention that the decision applies equally such that very large, well-financed labor unions, e.g., the U.A.W. and the AFL/CIO may likewise use union treasury funds identically in partisan political promotions, likewise entitled to do so by force of the First Amendment. So, too, zealous organized partisans of the left, like those of the riight, may seek to sway elections by persuading a credulous public to vote and to elect into office such persons these highly influential organizations most favor and from whom they may hope ro most benefit.
Even milllionaires are by no means merely on 'the right," as one quickly thinks at once of George Soros or of Ms. Huffington and her highly partisan (sometimes even, one may say, quite virulent) POST.
I'm personally quite fond of Mr. Epps, but it is nonetheless true that his columns as as predictably skewed in their own way as, say, Bill O'Reilly's nightly telecast is likewise skewed in his own (utterly partisan) way as well ("fair and balanced...baloney'). Fortunately for them (and, indeed, I think fortunately for all the rest of us, too), The First Amendment shelters their wordy efforts to influence us, albeit in opposite directions, nor, I really think, would we want it to be any other way.
Wm. Van Alstyne.
Lee Professor of Constitutional Law

It is our contention at Renew Democracy, an advocacy group for a constitutional amendment for campaign finance reform, that the constitutional basis currently for any restrictions to any type of political or campaign spending by any entity group or individual is tenuous at best. The First Amendment is plain. This places our political system in crisis as there is no constitutional basis for regulating what the vast majority of Americans realize needs to be regulated. We feel that just as many of the constitutional restrictions on social behavior ensure the primacy of individual rights to protect from the tyranny of the majority by making the rights of the group subservient to the rights of the individual, it is crucial to ensure the rights of the individual voter have primacy in the political process. For this reason we advocate for a constitutional amendment. The outline of the proposal of the Renew Democracy amendment goes far beyond the bumper sticker solutions of "corporations are not people" and "money is not speech"that many advocacy groups have latched onto as easy fundraisers. Our proposal would be a significant restructuring of the current motivation that present campaign "pay for play" creates in our representatives. We feel that unless our representatives are motivated to represent only the voters, our current broken system cannot be transformed.

The Renew Democracy Amendment
1. The right of the individual qualified citizen voter to participate in and directly elect all candidates by popular vote in all pertinent local, state, and federal elections shall not be questioned and the right to vote is limited to individuals.
2. The right to contribute to political campaigns and political parties is held solely by individual citizens.
3. Political campaign and political party contributions shall not exceed an amount reasonably affordable by the average American.
4. The rights of all groups, associations and organizations to other political speech may be regulated by Congress but only as to volume and not content and only to protect the right of the individual voter’s voice to be heard.

The RDA would

o Render concerns about corporate personage moot as regards to campaign finance as no organization could donate.

o Eliminate political party funding of candidates and campaigns which would dramatically shrink the influence of the political parties on our legislators.

o Eliminate the huge advantage wealthy candidates have in our current political process by allowing only the amount of the individual donation from the candidate.

o End the electoral college which is less democratic than one person one vote and is manipulated currently by state legislatures and could be used to disenfranchise presidential voters. Ending the electoral college is favored by the majority of voters even the majority of Republican voters.

o Create a federal guarantee of the right to vote in all elections for which the voters qualified.

o Create a constitutional framework for legislation regulating soft money and PACs.

o Set a limit for individual donations based on average disposable income. This limit would be the basis for contention however if the limit is set below a threshold that would create a quid pro quo for legislative action then any potential voter could, in the eyes of the legislator, be a maximum contributor if they were sufficiently motivated.
http://www.renewdemocracy.org/

I question point 3. as not being specific enough. Why? The 14th Amendment is the basis for the concept of corporate personhood. The 14th Amendment, in section 1, clearly states that it applies to US citizens. Therefore, it appears that the SCOTUS has already "ruled" that corporations are "citizens". I would suggest that instead of "individual", you use "human".

Thank you for your comment Rad. We have purposely not specified an individual limit for several reasons. The first being that we do not pretend to be clever enough to know what that limit should be. For an amendment to have a chance at ratification it must be acceptable to a super majority which means both Democrats and Republicans would need to accept the limit in sufficient numbers. Both parties currently receive the majority of their fundings from individual donations however Democrats receive greater numbers but lesser average donations and Republicans a higher average per donation. To be politically feasible any proposed amendment must allow for the continuation of funding of candidates and parties. There is no doubt that Democrats would prefer to establish a lower limit and Republicans will prefer a higher limit. It is our contention at Renew Democracy that if this is where the battle lies then the war has already been won. As long as a limit is established that is less than the amount that would buy quid pro quo influence then we will have established a small donor democracy, Gov. Rick Perry famously said $5000 wouldn't buy him and he is probably correct. It is our intent that whatever number is established would be indexed to average disposable income.
As for your proposal, it is obvious you have given this a lot of thought. I am curious as to why you would think that; "The right to contribute to political campaigns and political parties is held solely by individual citizens." is not specific enough to allay your concerns about corporations or other groups influencing our representatives? Our proposal is just that, and will require modification and your concern about needing to include "human" may be valid, but that powerful formulation removes all non-individuals from contributing. Until our representatives are funded solely by the voters we will have representation by special-interest. And Rad, why are you only interested in federal elections?

This amendment language directly violates the First Amendment and fails to overturn Buckley v. Valeo or abolish corporate personhood. It's also incredibly vague. “Shall not be questioned” is a contradictory phrase to tack onto the end of a declaration that includes the definition “individual qualified citizen voter” ("qualified" usually precludes questioning). “Individuals” is practically meaningless (legally) and “individual citizens” does nothing to repudiate the use of the 14th Amendment for purposes of corporate rights. “Reasonably affordable” is almost impossible to define and would require a layer of bureaucracy that most people would find unnecessary.

And the last sentence really is a direct violation of the First Amendment. There may be some well-thought exceptions but it doesn’t work and it’s not the way to approach the constitution. There may be many ways to accomplish the same goal but this is decidedly not the way to accomplish this one. If adopted as written, it would create an ambiguity in the Constitution that SCOTUS could drive a truck through. I'm sorry to come on so strong but yours is just one of more than a dozen Amendment versions I've been critiquing over the past several months. And everyone seems to be falling into the same trap.

It is SO much easier to unwind case law than to pack new law on top of old. I don't want this to become a battle of egos but I've been working with another group, Abolish Corporate Personhood Now, and met with David Cobb from Move To Amend, who agreed that our language was "more elegant" than MTA's (hey, it's a start!). Rather than trying to create new law, we simply undo the case law that was created in successive rulings going back to SCC v. SPR (and Buckley), and in so doing, we eliminate outcome-oriented language (like defining a "reasonable amount") and wind up with purely process-oriented language, that is short, sweet and devastatingly effective, like most of the Constitution itself.

Human Rights Amendment

Section one: In all instances wherein the words "person," persons," and "people" appear in this constitution, such words shall be construed to define living human beings only.

Section two: "Money" is defined only as legal tender for the purpose of settling all debts, public and private. Congress shall make no law recognizing the free flow of money as an expression of speech of any kind, or as an expression of any of the rights enumerated in this constitution.

Section three: Congress shall have power to enforce this article and to regulate federal elections by appropriate legislation.

This isn't campaign finance reform, nor should it be. Anything that can be done via legislation should be done via legislation. This doesn't make new law or try to level the playing field. All it does is undermine 120-plus years of case law going back to Santa Clara and nearly forty years going back to Buckley. It wipes out all the protections granted to legal fictions by extending the definition of "person" in the 14th Amendment and all the automatic triggers that grant 1st Amendment protections. And section two completely wipes out the notion of spending money as an expression of protected speech in all venues, everywhere.

I don't expect any language we've seen to date will survive this process intact so this isn't a competition between versions. But I do strongly encourage you and your colleagues to rethink your approach. See this from the perspective of undoing what has been done to what started out as a pretty good system, rather than trying to impose more layers on a structure that has become totally corrupt. What we need now is less, not more. I hope that makes sense. ;-)

Thank you for your comments. We understand that our proposal would indeed violate the First Amendment. As does any restrictions on campaign donations by any entity currently. That is the whole necessity for the difficult proposition of a constitutional amendment It would change the Constitution to allow what is currently unconstitutional. It is also true that our proposal would not abolish corporate personhood. Perhaps you might reread Dr. Epps article which concisely and at detail outlines why this is an unnecessary step in campaign finance reform. At issue is not the legal status of corporations, but what they and other groups and organizations can do to distort our democratic process. If corporations and all other groups can no longer contribute to campaigns, and we enact a constitutional basis for legislation on the amount of spending of indirect or soft money for all groups, then corporate personhood becomes a moot point in who motivates our political representatives. As Dr. Epps correctly states and as we have said before, the pursuit of corporate personhood is a red herring. I would go further and state that it is counterproductive to pursue a constitutional amendment that so obviously rewards one side of the political spectrum at the detriment of the other. For a constitutional amendment to be feasible it must garner a super majority of public support. An amendment that only restricts corporations cannot garner the adequate support necessary to make it politically feasible. This is an obvious fact that does not require in-depth analysis. The Move to Amend organization does great work in mobilizing and activating people and is to be highly commended. If they want to have any hope of success however and for the benefit of the entire movement, it is past time to take off the political blinders and realize that this is not just about corporations but about all groups and their influence over our representatives. Until we evolve a small donor democracy where our representative's campaigns are paid solely by the voters, we will have dysfunctional government gridlock by special interest and the power of the political parties who benefit from the polarization.
We consider our proposal to be like open source code that America can utilize to program a better, more responsive democracy. We appreciate your comments and we have instituted a change that we considered before and have indeed changed "shall not be questioned" to "shall not be denied or abridged" which does appear currently in the Constitution. It is true that "reasonably affordable"is purposely vague and would be a source of contention. Our reasoning for this was explained previously to rad racer above. There would be no need for any bureaucracy as disposable income is currently calculated and would serve as a peg. http://www.bea.gov/newsreleases/national/pi/pinewsrelease.htm
There is no vagueness or ambiguity however in section 2 where the RDA states "The right to contribute to political campaigns and political parties is held solely by individual citizens.". It is this powerful statement that allows the RDA to be broadly acceptable as all Americans can see its fairness. No money from corporations, no money from unions, and no money from the political parties. It is not by accident that our politics are so polarized and that the individual contribution limit for campaign is $2500 and for a political party it is $30,800. I would ask you, are the good people at Move to Amend or Abolish Corporate Personhood Now willing to offend partisan Democrats? We are, and will offend partisan Republicans, staunch union supporters, Corporatists and Strict Constitutionalists as well. http://www.renewdemocracy.org/support/

This is a bizarrely tendentious analysis that seems designed to defend a far broader conception of corporate personhood than is compatible with democracy or warranted by legal precedent. For one thing, corporations were not "always" persons; this designation is only about a century old. For another, the original rationale for them did not presuppose a competitive market economy or representative republican government; on the contrary, it was to reduce the risk involved in socially beneficial economic activity conducted under monopoly rule. There is no reason whatsoever to grant them *civil* rights and privileges functionally or substantively equivalent to those of "natural" persons subject to the law. Once this is stipulated as the founding principle, we may begin to selectively grant narrowly crafted exceptions to it. By contrast, seeking a compromise with corporate citizenship is democratic suicide.

All those groups can do is carpet bomb the airwaves with negative ads. It works in some cases, but after the public gets a the full blast this fall we might see more people on both sides of the fence start screaming enough is enough.

Also, those political PACs can't get local grass roots organizations on the move. The only way to counter this is to actually work the sidewalks and get the message out.

Thank you, Professor Epps. We need more cogent analyses along these lines if the amendment movement is ever to advance from bumper stickers and political theater to a serious push for constitutional change. Needed is a broad working grasp – starting within the movement itself – of where and how judge-made law went off the rails. You do not need a J.D. to learn the ropes. I speak with nonattorneys who know them better than lawyers caught up in the amendment movement in its current form, some of whom seem to think the Constitution can be fixed by stickering it.

Sadly, things got off on the wrong foot in the face of objections raised at the outset. These were ignored for the sake of movement-building and in the belief that the public was too complacent to be moved by anything beyond simplistic slogans. As a result, uninformed minds were made up and misplaced ire was wired into the movement. Predictably, many in leadership positions have chosen to double down, further raising the political price of a course correction that should have been unnecessary to begin with.

The antidemocratic forces we are up against must be thrilled. ALEC and other scriveners at their beck and call know what legal words are required to bend the law to their interests. The amendment movement has yet to recruit such a taskforce. The rank and file should wonder at the ability of leaders of the movement make stirring noises without interruption from the powers that be. This suggests they may be in a fool's paradise. The right does not allow so open a field if they feel the least threatened by what's happening on it. By contrast they have no reason to fear Strawberry Fields Forever.

Tensions within the amendment movement have been an undercurrent throughout its course, but they are now surfacing as legislatures in large cities and states have begun adopting amendment resolutions that don't fit what's on the bumper stickers. The staffers know too much to make fools of their employers. As perceptive and even courageous as this article is, as ably as it lays things out, it breaks no new ground.

The test for the movement is whether this tension can be resolved without destroying momentum. I should like to think so, but people will have to start thinking for themselves, dipping into the law, and speaking with others around them.

I would add only that Anthony Kennedy DID give a reason why massive independent expenditures "[would] not cause the electorate to lose faith in our democracy." It just happens to be so bad a reason as to be incredible. It was this:

By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate…. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials.

But in his opinion Kennedy turned a blind eye to coordination, dismissing rampant evidence of it in the 100,000 page record on "soft money" donations that was put before him in McConnell v. FEC and raised again in Citizens United (which thanks to its weird history had no record of its own). He either didn't know coordination when he saw it or chose not to see it. Either way, he figured the public would see independent expenditures as spending for its benefit and not the candidates'. It took the SuperPAC fiasco to bring out the error of his ways, turning Kennedy into Stephen Colbert's straight man, probably without Colbert's exactly realizing it.

Coordination is the mother's milk of political propaganda. It made Frank Luntz rich. Gleichschaltung, the German word for it, was Goebbels's stock in trade, covering a multitude of tactics. The term had currency in British political circles, as Orwell notes. Our political culture is onto it, but only vaguely. (In contrast to Goebbels, Luntz knows not to boast too loudly about it.) But sweep it under the rug, or define it so woodenly as to make it impossible for a judge to see it in action, and the difference between independent spending and contributions evaporates. That is why judges have begun to rule that corporations can give money directly to candidates and why the Supreme Court may yet bless the move.

This is not too hard for a progressive political movement to grasp if we start from the premise that what can be parodied can be seen for what it truly is. But before that can occur, we must decide it is time we learn in earnest how it came to this. Once again, thank you for the contribution.

As you correctly state, a course correction in the amendment movement should not have been necessary, however at this point, it is required. Our small and unaligned organization has been publicly stating for nearly a year that it is time to leave behind the sound bite slogans and the red herring attack on corporation personhood. The task force that we need to generate is all around us. What is your opinion of our proposal which does certainly deviate from Strawberry Fields Forever? We at Renew Democracy fully expect staunch and vehement opposition from partisans on both sides if the public knowledge of our proposal becomes widespread.
http://www.renewdemocracy.org/

Your post contains useful information on this point as I am working on a college project. Thank you posting relative information and its now becoming easier to complete this topic.
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Prof Van Alstyne's comment conveniently ignores several points. In some (most or all?) states, unions are NOT allowed to do political advocacy work with treasury funds. Even before the obvious stupidity of Justice Kennedy's CU decision, business interests were outspending labor by a minimum of 7:1 in midterms or off-year elections and by over 20:1 in presidential election years. Giving labor another 50 cents to spend does nothing to level the playing field while, with the same illogical and sloppy pen, giving businesses another $5.00 or more.

I would also add that you completely failed to deal with any of the real issues in campaign finance reform.

Sorry, Prof., your ideological bias is screaming to high heaven, and the obviousness and lameness of that bias does not reflect well on your educational credentials.

The issue of a constitutional amendment must deal with many questions. What must be in the amendment vs. what can be left to legislatures to correct the situation? How specific should an amendment be considering that specificity breads disingenuous attack from opponents? What should it attempt to correct? What is the scope of the problem? etc.

Here are several issues I see that can and should be addressed. I've also added some possible phrases to achieve the remedy. Alternatives are welcome.
1. How do we keep foreign and domestic concentrated wealth from buying elections?

No non-citizen human being, no domestic or foreign corporation or business, limited liability organization, professional, educational or service entity nor any combination thereof shall be permitted to contribute money or its equivalent, directly or indirectly, to 1. any candidate for federal office, 2. any individual undertaking an exploratory effort to run for federal office, 3. any Constitutional Convention delegates or staff or to any campaign for or against ratification of Constitutional Amendments, 4. any initiative, referendum or recall campaign, or 5. any political party or group which nominates candidates for federal office.

2. How do we level the playing field without disfranchising anyone?

Corporate shareholders and association members who are US citizens, via specifically and separately authorized contributions, may contribute a maximum of $X per election cycle to an authorized, segregated political action fund created by the corporation or association. Those set-aside funds may be disbursed on behalf of shareholders and members only by designated officers and must be disclosed within 24 house of disbursal to shareholders and/or members in a form approved by the shareholders and/or members and reported to regulatory authorities and the media (broadcast, cable, printed, internet, etc.) within the body of any advertisement.

3. How do we deny corporations, etc. inalienable human rights?

Not withstanding any other provision of law or court interpretation, foreign and domestic corporations, limited liability organizations and/or any business, professional, educational or service entities or associations are neither persons nor citizens within the meaning of the US Constitution and its Amendments. Furthermore, money is neither the equivalent of nor surrogate for political speech. Any reference to persons in the US Constitution and its Amendments means living, breathing human beings.

4. How do we make it clear that corporations can still operate?

Nothing in the above in any way abolishes the “juristic” personhood of corporate entities which enables them to enter into and demand enforcement of contracts; to buy, own and sell property; and to sue, and to be sued by, living, breathing human beings, regulatory agencies and other “juristic” persons. Juristic persons have no constitutionally acknowledged rights.

5. How do we make it clear that corporations, etc. engage in commercial speech?

Any and all organizations or entities listed in 3, above, are entitled to engage only in commercial speech which may be regulated by federal, state and/or local statutes or agency rules, provided they apply nondiscriminatorily.

6. How do we control the expenditure and cost of campaigns?

Only United States citizens may contribute, and no more than $X or its equivalent (adjusted for inflation every 5 years), to a federal candidate and political party during any election cycle or to any other federal campaign. Congress, state and local governments may enact legislation to create public financing of any elections and to require the “press” to equally provide reasonable amounts of free and/or reduced cost advertising to candidates for federal, state or local office and campaigns for federal, state or local initiatives, referendums or issues to include ratification and drafting of amendments. Nothing above shall limit the ability of individuals to volunteer their personal services to any campaign.

7. If we cannot ban independent expenditures, how can we minimize their damage?

Independent expenditures in support of or in opposition to any federal candidate, state or local referendum, initiative or other public issue may be initiated, funded and conducted only by US citizens (registered to vote)(resident) within the jurisdiction, district or state directly affected by the election. Independent expenditures are prohibited from appearing in the “press” more than 90 (60) days in advance of and during the last 30 (15) days prior to any primary, general or special election date and are subject to contribution limits set forth in Sec. 5, above.

8. How to ensure that individuals’ privacy rights are not attached to the corporations so that they can claim corporate privacy on behalf of shareholders, members, etc.?

Privacy rights belong only to living, breathing human beings. No foreign or domestic corporations, limited liability organizations and/or any business, professional, educational or service entities or associations have privacy rights on their own behalf. Only the living, breathing human beings connected to those corporations, entities or associations possess individual privacy rights.

9. What responsibilities do corporations have to society?

Corporate charters shall be granted to organizations which promise to meet standards of community benefit and social responsibility in addition to fully and consistently obeying the laws and regulations of the federal, state and local governments where they operate. Any corporation that fails to fulfill its duty to provide community benefits, fails to uphold its responsibilities and disobeys the law shall forfeit its charter.

10. Should corporations be entitled to immortality? Should worker-owned and –managed co-ops and associations or unions be given special treatment?

All charters shall expire X years after being granted or after the date of ratification of this amendment, whichever is later, unless the corporation is reauthorized as a worker-owned and worker-managed co-operative. Worker-owned and –managed co-operatives’, membership associations’, and unions’ corporate charters shall have no expiration date so long as they abide by the duties and responsibilities in 9, above and do not hire a second class of "employees" beyond a reasonable probation period.

11. How do we flesh out the regs. and make it easier for working people to vote?

Congress and state and local authorities shall have the power to pass appropriate legislation to implement the above. Congress shall establish a federal holiday for the purposes of voting for candidates for federal office and any other federal campaigns.

Further thoughts and rationales

Many of the proposed amendments are unbelievably vague and give Congress the right to pass legislation to do the above. Considering that concentrated wealth has the time and money to buy the services of cunning and devious legal minds to circumvent the intent of a vague amendment, I believe being fairly precise and comprehensive will be necessary.

Giving Congress or state legislatures the power to do something is not the same as getting something useful done. 50+ versions of election reform is a recipe for catastrophe as has been the hands off approach to corporate charter granting. The only reason that a few states are home to most corporations is the lax nature of their laws. There is no reason to believe that Congress, in passing from control by one party to another, would not likewise play games with the core legislation.

My concerns about the above are two: How to distinguish political parties and their legitimate activities supporting their candidates from other corporate forms and how to make it clear that the “press” is not constrained in the same ways as are other corporations?

Let the gnashing of teeth, pulling out of hair and screaming and name calling begin.

Human Rights Amendment

Section one: In all instances wherein the words "person," persons," and "people" appear in this constitution, such words shall be construed to define living human beings only.

Section two: "Money" is defined only as legal tender for the purpose of settling all debts, public and private. Congress shall make no law recognizing the free flow of money as an expression of speech of any kind, or as an expression of any of the rights enumerated in this constitution.

Section three: Congress shall have power to enforce this article and to regulate federal elections by appropriate legislation.

http://www.change.org/petitions/pass-the-human-rights-amendment

http://wanderinginthezero.blogspot.com/2012/04/questions-for-drafters-of-amendments.html

http://wanderinginthezero.blogspot.com/2012/03/28th-amendment-comparison.html

http://wanderinginthezero.blogspot.com/2012/04/human-rights-amendment-discussion-audio.html

This trenchant article is critical to the cause of our declining democracy. It deserves wide spread distribution.

I read the "Money Changes Everything" article in the magazine (to which I subscribe.) Can you provide any link to or text of recommended model (s) of appropriate models to limit corporate speech rights w/o abolishing their personhood. Thank you. robert.cogan@gmail.com

The Court reasoned that money is speech. The problem with that, is that speech is evenly distributed among the voters, but money is not. If Citizens United was what the framers wanted, they would have given the vote to only the aristocracy and skipped the sham of citizens voting all together. Instead, they envisioned broad voting rights specifically to diminish the power of the aristocracy. They gave us free speech specifically to prevent the powerful from stifling dissent.

Your article is very exciting and informational. I am trying to decide on a career move and this has helped me with one aspect. Thank you so much!
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