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The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.
—John Stuart Mill
In 2003, after my book Unequal Protection was first published, I gave a talk at one of the larger law schools in Vermont. Around 300 people showed up, mostly students, with a few dozen faculty and some local lawyers. I started by asking, “Please raise your hand if you know that in 1886, in the Santa Clara County v. Southern Pacific Railroad case, the Supreme Court ruled that corporations are persons and therefore entitled to rights under the Constitution and the Bill of Rights.”
Almost everyone in the room raised their hand, and the few who didn’t probably were new enough to the law that they hadn’t gotten to study that case yet. Nobody questioned the basic premise of the statement.
And all of them were wrong.
We the People are the first three words of the Preamble to the Constitution; and from its adoption until the Robber Baron Era in the late nineteenth century, people meant human beings. In the 1886 Santa Clara case, however, the court reporter of the Supreme Court proclaimed in a “headnote”—a summary or statement added at the top of the court decision, which is separate from the decision and has no legal force whatsoever—that the word person in law and, particularly, in the Constitution, meant both humans and corporations.
Thus began in a big way (it actually started a half century earlier in a much smaller way with a case involving Dartmouth University) the corruption of American democracy and the shift, over the 125 years since then, to our modern corporate oligarchy.
Most recently, in a January 2010 ruling in Citizens United v. Federal Election Commission, the Supreme Court, under Chief Justice John G. Roberts, took the radical step of overturning more than a hundred years of laws passed by elected legislatures and signed by elected presidents and declared that not only are corporations “persons” but that they have constitutional rights such as the First Amendment right to free speech.
This decision is clear evidence of how far we have drifted away as a nation from our foundational principles and values. Particularly since the presidency of Ronald Reagan, over the past three decades our country and its democratic ideals have been hijacked by what Joseph Pulitzer a hundred years ago famously called “predatory plutocracy.”
The Citizens United decision, which empowers and elevates corporations above citizens, is not just a symbolic but a real threat to our democracy, and only the will of We the People, exercised through a constitutional amendment to deny personhood to corporations, can slay the dragon the Court has unleashed.
The “Disadvantaged” Corporation
In 2008 a right-wing group named Citizens United put together a 90-minute “documentary,” a flat-out hit-job on Hillary Clinton (then a senator and presidential aspirant) and wanted to run commercials promoting it on TV stations in strategic states. The Federal Election Commission (FEC) ruled that the movie and the television advertisements promoting it were really “campaign ads” and stopped them from airing because they violated McCain-Feingold (aka the Bipartisan Campaign Reform Act of 2002), which bars “independent expenditures” by corporations, unions, or other organizations 30 days before a primary election or 60 days before a general election. (Direct corporate contributions to campaigns of candidates have been banned repeatedly and in various ways since 1907, when Teddy Roosevelt pushed through the Tillman Act, which made it a felony for a corporation to give money to a politician for federal office; in 1947 the Taft-Hartley Act extended this ban to unions.)
McCain-Feingold was a good bipartisan achievement by conservative senator John McCain and liberal senator Russ Feingold to limit the ability of corporations to interfere around the edges of campaigns. The law required the “I’m John McCain and I approve this message” disclaimer and limited the amount of money that could be spent on any federal politician’s behalf in campaign advertising. It also limited the ability of multimillionaires to finance their own elections.
But the law offended the members of the economic elite in this country who call themselves “conservatives” and believe that they should be able to spend vast amounts of money to influence electoral and legislative outcomes.
The Conservative Worldview
BELOW: The Court lacked its own building until 1935; from 1791 to 1801, it met in Philadelphia’s City Hall.
In part, this belief is derived from a more fundamental—and insidious—belief that political power in the hands of average working people is dangerous and destabilizing to America; this is the source of the antipathy of such conservatives to both democracy and labor unions. They believe in “original sin”—that we’re all essentially evil and corruptible (because we came out of the womb of a woman, who was heir to Eve’s apple-eating)—and therefore it’s necessary for a noble, well-educated, and wealthy (male) elite, working behind the scenes, to make the rules for and run our society.
Among the chief proponents of this Bible-based view of the errancy of average working people are the five right-wing members of the current U.S. Supreme Court—John Roberts, Samuel Alito, Clarence Thomas, Antonin Scalia, and Anthony Kennedy—who have consistently worked to make America more hierarchical, only with a small, wealthy “conservative/corporate” elite in charge instead of a divinely ordained Pope.
And even though the Citizens United case—which landed in the Supreme Court’s lap after the federal court in Washington, D.C., ruled in favor of the FEC ban—was only about a small slice of the McCain-Feingold law, the Republican Five used it as an opportunity to make a monumental change to constitutionally em- power corporations and undo a century of legal precedents.
After listening to oral arguments in early 2009, the Roberts Court chose to ignore those arguments and the originally narrow pleadings in the case, expanded the scope of the case, and scheduled hearings for September of that year, asking that the breadth of the arguments include reexamining the rationales for Congress to have any power to regulate corporate “free speech.”
In this they were going along with a request from Theodore B. “Ted” Olson, the solicitor general under George W. Bush, and would now go back to reexamine and perhaps overturn the Court’s own precedent in the Austin v. Michigan Chamber of Commerce case of 1990. In that case the Court held that it was constitutional for Congress to place limits on corporate political activities; and in a 2003 case, the Court (before the additions of Alito and Roberts) had already upheld McCain-Feingold as constitutional.1
Thus, on January 21, 2010, in a 5-to-4 decision, the Supreme Court ruled in the Citizens United case that it is unconstitutional for Congress to approve, or the president to sign into law, most restrictions on the “right” of a corporate “person” to heavily influence political campaigns so long as they don’t directly donate to the politicians’ campaign or party.
The majority decision, written by Justice Kennedy at the direction of Chief Justice Roberts, explicitly states that the government has virtually no right to limit corporate power when it comes to corporate “free speech.”2
Kennedy began this line of reasoning by positing, “Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints.”
It sounds reasonable. He even noted, sounding almost like Martin Luther King Jr. or John F. Kennedy, that:
By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.
But who is that “disadvantaged person or class” of whom Kennedy was speaking? His answer is quite blunt (the parts in single quotation marks are where he is quoting from previous Supreme Court decisions): “The Court has recognized that First Amendment protection extends to corporations…. Under that rationale of these precedents, political speech does not lose First Amendment protection ‘simply because its source is a corporation.’”
Two sentences later he nails it home: “The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’” (Historically, natural persons has been the term for humans under both British common law and American constitutional law; corporations, churches, and governments are referred to as artificial persons.)
Bemoaning how badly corporations and their trade associations (like the U.S. Chamber of Commerce, the nation’s leading front-group player in both national and local politics for decades and the number one lobbyist in terms of spending) had been treated by the Congress of the United States for more than a hundred years, Kennedy stuck up for the “disadvantaged” corporate “persons” the Roberts Court was seeking to protect:
The censorship we now confront is vast in its reach. The Government has “muffled the voices that best represent the most significant segments of the economy.” And “the electorate has been deprived of information, knowledge, and opinion vital to its function.” By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests.
By reinterpreting the Fourteenth Amendment, which says that no “person” (the amendment’s authors didn’t add the word natural because it was written to free the slaves after the Civil War, so they figured person was sufficient) shall be denied equal protection under the law, the Roberts Court turned American democracy inside out. “We the People” now explicitly means “We the Citizens, Corporations, and Churches” with a few of the richest humans who run them thrown in.
Such a view is antithetical to how the Framers of our Constitution viewed corporations.
A Historical Perspective
The Founders of this nation were so wary of corporate power that when the British Parliament voted to give a massive tax break— through the Tea Act of 1773—to the East India Company on thousands of tons of tea it had in stock so that the company could wipe out its small, entrepreneurial colonial competitors, the colonists staged the Boston Tea Party.
This act of vandalism against the world’s largest transnational corporation, destroying more than a million dollars’ worth (in today’s money) of corporate property, led the British to pass the Boston Ports Act of 1774, which declared the Port of Boston closed to commerce until the city paid back the East India Company for its spoiled tea. It was an economic embargo like we declared against Cuba, Iraq, and Iran, and it led the colonists straight into open rebellion and the Revolutionary War.
Thus the Framers of our Constitution intentionally chose not to even use the word corporation in that document, as they wanted business entities and churches to be legally established at the state level, where local governments could keep an eye on them.
Throughout most of the first 100 years of our nation, corporations were severely restricted so that they could not gain too much power or wealth. It was illegal for a corporation to buy or own stock in another corporation, to engage in more than one type of business, to participate in politics, and to even exist for more than 40 years (so that the corporate form couldn’t be used by wealthy and powerful families to amass great wealth in an intergenerational way and avoid paying an estate tax).
All of that came to an end during the “chartermongering” era of the 1890s when, after Ohio prepared to charge John D. Rockefeller with antitrust and other violations of the corporate laws of that state, he challenged other states to broaden and loosen their laws regarding corporate charters. A competition broke out among, primarily, Connecticut, New Jersey, New York, and Delaware, which Delaware ultimately won by enacting laws that were the most corporate-friendly in the nation. This is the reason why today more than half of the NYSE-listed companies are Delaware corporations.
In addition, the largest corporations of the era—the railroads—began a relentless campaign in the 1870s that reached its zenith in 1886, claiming that as “corporate persons” they should have “rights” under the Bill of Rights in the Constitution. That zenith was the Santa Clara County v. Southern Pacific Railroad case, where the Supreme Court did not rule that corporations are persons, but the court reporter claimed it had, establishing language that was cited repeatedly in subsequent Court decisions ratifying this newly found “corporate personhood” doctrine and cementing it into law.*
A Patriotic Dissent
When the Republican Five on the Supreme Court ruled in the Citizens United case and handed to corporations nearly full human rights of free speech, it didn’t come out of the blue. Although no bill in Congress from the time of George Washington to Barack Obama had declared that corporations should have these “human rights” (to the contrary, multiple laws had said the opposite), and no president had ever spoken in favor of corporate human rights, the five men in the majority on the Supreme Court took it upon themselves to hand our country over to the tender mercies of the world’s largest transnational corporations.
The Court’s Minority Pushes Back
This didn’t sit well with the other four members of the Supreme Court.
Justice John Paul Stevens, with the concurrence of Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, wrote the dissenting opinion in the Citizens United case.
Calling the decision “misguided” in the first paragraph of the 90-page dissent, Stevens (and his colleagues) pointed out that the Court majority had just effectively handed our country over to any foreign interest willing to incorporate here and spend money on political TV ads.
If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by “Tokyo Rose” during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could “‘enhance the relative voice’” of some (i.e., humans) over others (i.e., corporations).
In the same paragraph, Stevens further points out the absurdity of granting corporations what are essentially citizenship rights under the Constitution, suggesting that perhaps the next Court decision will be to give corporations the right to vote: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”
Quoting earlier Supreme Court cases and the Founders, Stevens wrote: “The word ‘soulless’ constantly recurs in debates over corporations…Corporations, it was feared, could concentrate the worst urges of whole groups of men.” Thomas Jefferson famously fretted that corporations would subvert the republic.
And, Stevens reasoned, the Founders could not have possibly meant to confer First Amendment rights on corporations when they adopted the Constitution in 1787 and proposed the Bill of Rights in 1789 because, “All general business corporation statutes appear to date from well after 1800”:
The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutional- ized the right to free speech in the First Amendment, it was the free speech of individual Americans they had in mind.
To make his point, Stevens even quoted Chief Justice John Marshall, who served from his appointment by President John Adams in 1800 until 1835, making him one of America’s longest serving chief justices. Sometimes referred to as the “father of the Supreme Court,” Marshall had written in an early-nineteenth- century decision some text Stevens quoted into his Citizen’s United dissent: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being a mere creature of law, it posses only those properties which the charter of its creation confers upon it.”
Stevens’s dissent called out Roberts, Alito, Scalia, Thomas, and Kennedy for their behavior in the Citizen’s United ruling, which he said was “the height of recklessness to dismiss Congress’ years of bipartisan deliberation and its reasoned judgment…”:
The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it….Unlike natural persons, corporations have “limited liability” for their owners and managers, “perpetual life,” separation of ownership and control, “and favorable treatment of the accumulation of assets…that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders’ investments.” Unlike voters in U.S. elections, corporations may be foreign controlled.
Noting that “they inescapably structure the life of every citizen,” Stevens continued:
It might be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.
In this very eloquent and pointed dissent, Stevens even waxed philosophical, asking a series of questions for which there couldn’t possible be any clear or obvious answers if the Court were to maintain the “logic” of its Citizens United ruling:
It is an interesting question “who” is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officers or directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their self-expression or cultivating their critical faculties is fanciful.
The dissenting justices argued that the majority’s ruling wasn’t merely wrong, both in a contemporary and a historical sense, but that it was dangerous. The dissent was explicit, clear, and shocking in how bluntly the three most senior members of the Court (along with the newbie, Sotomayor) called out their colleagues, two of whom (Roberts and Alito) had been just recently appointed by George W. Bush.
The dissenters noted that it was their five colleagues (and their friends in high places) who were clamoring for corporations to have personhood and free-speech rights, not the American people who were the “listeners” of such speech: “It is only certain Members of this Court, not the listeners themselves, who have agitated for more corporate electioneering.”
They continued, noting that corporate interests are inherently different from the public (and human) interests:*
[The] Austin [Supreme Court decision that upheld McCain/ Feingold in 2003] recognized that there are substantial reasons why a legislature might conclude that unregulated general treasury expenditures will give corporations “unfair influence” in the electoral process, and distort public debate in ways that undermine rather than advance the interests of listeners. The legal structure of corporations allows them to amass and deploy financial resources on a scale few natural persons can match. The structure of a business corporation, furthermore, draws a line between the corporation’s economic interests and the political preferences of the individuals associated with the corporation; the corporation must engage the electoral process with the aim “to enhance the profitability of the company, no matter how persuasive the arguments for a broader or conflicting set of priorities.”
By having free-speech rights equal with people, Stevens argued, corporations will actually harm the “competition among ideas” that the Framers envisioned when they wrote the FirstAmendment:
“[A] corporation…should have as its objective the conduct of business activities with a view to enhancing corporate profit and shareholder gain.” In a state election…the interests of nonresident corporations may be fundamentally adverse to the interests of local voters. Consequently, when corporations grab up the prime broadcasting slots on the eve of an election, they can flood the market with advocacy that bears little or no correlation to the ideas of natural persons or to any broader notion of the public good. The opinions of real people may be marginalized.
Moreover, just the fact that corporations can participate on an unlimited basis as actors in the political process will, inevitably, cause average working Americans—the 99 percent who make less than $300,000 a year—to conclude that their “democracy” is now rigged.
The result will be that more and more people will simply stop participating in politics (it’s interesting to note how many politicians announced within weeks of this decision that they would not run for reelection), stop being informed about politics, and stop voting. Our democracy will wither and could even die.
When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing.
The predictable result is cynicism and disenchantment: an increased perception that large spenders “call the tune” and a reduced “willingness of voters to take part in democratic governance.”
And even if humans were willing to try to take on corporations (maybe a billionaire or two with good ethics would run for office?), virtually every single person who tries to run for office will have to dance to the corporate tune or risk being totally destroyed by the huge and now-unlimited amounts of cash that corporations can rain down on our heads.
The majority’s unwillingness to distinguish between corporations and humans similarly blinds it to the possibility that corporations’ “war chests” and their special “advantages” in the legal realm may translate into special advantages in the market for legislation.
Scalia Is Offended
Horrified by the blunt language of the dissent and of being called “misguided,” “dangerous,” and “reckless” by his colleagues, Justice Scalia wrote a short concurring opinion in an attempt to once more speak up for the “disadvantaged” corporations:
Despite the corporation-hating quotations the dissent has dredged up, it is far from clear that by the end of the 18th century corporations were despised. If so, how came there to be so many of them?…Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this [corporate] speech to the public debate.
Justice Roberts offered his own short concurring opinion, in self-defense, saying that for “our democracy” to work, the voices in the public arena shouldn’t just be a human on a soapbox but must include massive transnational corporations:
First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.
The Court properly rejects that theory, and I join its opinion in full. The first Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.
In other words, if a single corporation spends $700 million in television advertising to tell you that, for example, Senator Bernie Sanders is a “bad person” because he sponsored legislation that limits its profitability, and Sanders can raise only $3 million to defend himself with a few local TV spots, that’s just the reality of “the vibrant public discourse that is at the foundation of our democracy.”
The Decision and the Damage Done
There is no better evidence of the harm that the Citizens United decision poses to our democracy than to see the immediate reaction from the corporations—or, more accurately, the persons who run the corporations.
Two weeks after the decision, a headline in the New York Times said: “In a Message to Democrats, Wall St. Sends Cash to G.O.P.” The article quoted banking industry sources (who now knew that they could use their considerable financial power politically) as saying that they were experiencing “buyer’s remorse” over having given Obama and the Democrats $89 million in 2008: “Republicans are rushing to capitalize on what they call Wall Street’s ‘buyer’s remorse’ with the Democrats. And industry executives and lobbyists are warning Democrats that if Mr. Obama keeps attacking Wall Street ‘fat cats,’ they may fight back by withholding their cash.”3
The article quoted several banking sources as saying they were outraged that the president had criticized their industry for the financial meltdown of 2008 or their big bonuses. It wrapped up with a quote from John Cornyn, the senator from Texas tasked with raising money for the National Republican Senatorial Committee, noting that he was now making regular visits to Wall Street in New York City. Speaking of the Democrats who dared challenge the banksters, he crowed: “I just don’t know how long you can expect people to contribute money to a political party whose main plank of their platform is to punish you.”
It was a loud shot across Obama’s bow, and within two weeks the president had changed his tune on a wide variety of initiatives, ranging from taxes on the wealthy to backing away from truly strong regulations on the banking, insurance, and pharmaceutical industries and instead embracing more-cosmetic “reforms.”
The fact is that about $5 billion was spent in all the political campaigns from coast to coast in the elections of 2008, a bit less than $2 billion of that on the presidential race. Compare that with January 2010, when a small cadre of senior executives and employees of the nation’s top banks on Wall Street split up among themselves more than $145 billion in personal bonus money.
If those few thousand people had decided to take just 3 percent of their bonus and redirect it into a political campaign, no politician in America could stand against them. And now none do. And that’s just the banksters! Profits in the tens and hundreds of billions of dollars were reported in 2009 by the oil, pharmaceutical, insurance, agriculture, and retailing industries—all now considering how to use a small part of their profits to influence political races.
While WellPoint’s Anthem Blue Cross division was raising insurance rates in California by up to 36 percent, the company declared a quarterly profit of well over $2 billion. And the six largest oil companies were making more than a billion dollars in profits per week. Even the smallest coalition, funneling their money through the U.S. Chamber of Commerce, now has the ability to promote or destroy any politician.
There are now no limits to what corporations (or rich individuals using a corporation as a front) can spend to influence elections or ballot measures. Every member of Congress will now know before he or she votes in favor of any legislation that is opposed by a particular industry, or votes against a bill that is favored by that industry, that it will have consequences come reelection time.
Anyone concerned with the integrity of the political system should note that this decision affects the legitimacy of elections not only of the legislative and executive branches but also of judges. As Bill Moyers and Michael Winship wrote in the Huffington Post in February 2010,4
Ninety-eight percent of all the lawsuits in this country take place in the state courts. In 39 states, judges have to run for election— that’s more than 80 percent of the state judges in America.
The Citizens United decision made those judges who are elected even more susceptible to the corrupting influence of cash, for many of their decisions in civil cases directly affect corporate America, and a significant amount of the money judges raise for their campaigns comes from lobbyists and lawyers.
Those inclined to underestimate the influence of cash on judicial elections should be reminded of some basic facts that Moyers and Winship provided:
During the 1990s, candidates for high court judgeships in states around the country and the parties that supported them raised $85 million…for their campaigns. Since the year 2000, the numbers have more than doubled to over $200 million.
The nine justices currently serving on the Texas Supreme Court have raised nearly $12 million in campaign contributions. The race for a seat on the Pennsylvania Supreme Court last year was the most expensive judicial race in the country, with more than four and a half million dollars spent by the Democrats and Republicans. With the Supreme Court’s Citizens United decision, corporate money’s muscle got a big hypodermic needle full of steroids.
This decision was a naked handoff of raw political power to corporate forces by five unelected judges; and as we saw earlier, the other four members of the Court said so in the plainest and most blunt terms.
Indeed, the First Amendment now protects the “free speech” rights of the presidents of Russia and China and Iran to form corporations in the United States and pour millions of dollars toward supporting or defeating members of Congress or presidential aspirants who favor trade policies or a foreign policy that suits their interests.
This decision also protects the “right” of the largest polluting corporations on earth to politically destroy any politician who wants to give any more authority to the Environmental Protection Agency or to elevate to elected status any politician who is willing to dismantle the EPA.
This Supreme Court decision has vested power in already powerful corporations that they never had before: to directly affect the outcome of elections for public office and of ballot measures.
So what’s to be done?
Such a radical decision requires an equally radical response that must be both far-reaching and permanent.
Move to Amend
There are only three ways to undo a bad Supreme Court decision. All three have been used at various times.
The first is to wait until the composition of the Court changes —one or more of the bad judges retires or dies and is replaced by others more competent. (It’s worth noting that even former Justice Sandra Day O’Connor, a Ronald Reagan appointee and longtime Republican activist, condemned the Citizens United ruling.) Then the Court takes on a case that involves the same issues and, like with Brown v. Board of Education and Roe v. Wade, pushes the Court forward in time.
The second is for the American people, the president, and Congress to understand the horror of the consequences of such a decision and break with the Court.
Arguably, this happened with the Dred Scott v. Sanford decision in 1857, which ruled that black persons were actually property and thus led us directly into the Civil War. That Supreme Court decision led to Abraham Lincoln’s Emancipation Proclamation and the passage of legislation clarifying the rights of African Americans, although it ultimately took a war and the passage of the 13th, 14th, and 15th Amendments to purge slavery from our laws and our Constitution.
Ironically, the Citizens United case is the mirror of Dred Scott in that it ruled that a property—a corporation—is now a person. The third way to undo—or supersede—a Supreme Court decision is to amend the Constitution itself so that the Court can no longer play with the semantics of ambiguous or broadly worded language. We did this, for example, to both institute and then repeal the prohibition, manufacture, and sale of alcohol.
The constitutional amendment route seems the most practical and long lasting, even though it may be the most challenging.
More than 29,000 amendments to our Constitution have been put forth in Congress since the founding of our republic, and only 27 have passed the hurdle of approval by two-thirds of the members of Congress and three-fourths of the states. Nonetheless, successful amendments are driven by a widespread sense that the change is absolutely essential for the good of the nation.
An example of this is the Twenty-sixth Amendment to drop the voting age from 21 to 18. It was largely brought about by the rage and the impotence that young people felt in America during the Vietnam War era (as expressed in the song “Eve of Destruction”: “You’re old enough to kill, but not for votin’…”). The need for young people to participate in a political process that could lead them to war was so clear that the Twenty-sixth Amendment passed the Senate in March 1971 and was completely ratified by the states on July 1, 1971.
As Americans see our politicians repeatedly being corrupted by corporate influence—from health care to banking to labor standards to the environment—and the middle class continues to collapse as a result, this may well be one of those moments in time when an amendment can make it through the Congress and the states in a relatively short time.
Several proposals are on the table, but I particularly recommend the models put forth by Jeff Milchen and David Cobb. Milchen, who founded ReclaimDemocracy.org, is one of the leading resources on the issue of corporate personhood; and Cobb’s Web site, www.MoveToAmend.org, incorporates Jeff’s proposed constitutional amendment as well as other options. Milchen’s proposed amendment, more explicit than simply inserting the word natural before the word person in the Fourteenth Amendment, could seriously begin the process of returning the United States to a democratic republic that is once again responsive and responsible to its citizens instead of its most powerful corporations. The proposed amendment reads as follows:
- Section 1. The U.S. Constitution protects only the rights of living human beings.
- Section 2. Corporations and other institutions granted the privilege to exist shall be subordinate to any and all laws enacted by citizens and their elected governments.
- Section 3. Corporations and other for-profit institutions are prohibited from attempting to influence the outcome of elections, legislation or government policy through the use of aggregate resources or by rewarding or repaying employees or directors to exert such influence.
- Section 4. Congress shall have power to implement this article by appropriate legislation.
Other variations on this amendment, some simpler and some more complex, can be found at www.MoveToAmend.org.
The elegance of explicitly denying constitutional rights to anything except “living human beings” is that it will not only roll back Citizens United but also allow future legislatures to challenge corporate claims to “rights” of privacy (Fourth Amendment), protection from self-incrimination (Fifth Amendment), and the power to force themselves on communities that don’t want them because to do otherwise is “discrimination” (Fourteenth Amendment).
We must be very careful that any amendment put forth isn’t just limited to giving Congress the power to regulate campaign spending; to do so would leave a wide swath of other Bill of Rights powers in the hands of corporations. Instead, an amendment must explicitly overturn the headnote to the 1886 Santa Clara decision that asserted that corporations are the same as natural persons in terms of constitutional protections.
By doing this we can begin the transition back from a corporate oligarchic state to the constitutionally limited representative democratic republic our Founders envisioned.
Even before the Citizens United case blew open the doors to a corporate takeover of American politics, the corrosive influence of corporations having “rights” was already evident. Now corporate influence in our politics can completely dominate and determine the outcome of elections—unless and until We the People once again assert our right to do what’s best for the common good and, through the mechanism of a constitutional amendment, relegate corporations to their rightful place—as legal fictions and not natural persons.
*Again, the words in quotation marks are where, in the dissent, the justices themselves are quoting from previous Supreme Court rulings. I’ve removed all the reference citations, as they make it hard to read; anybody wanting to dive deeper into this 90-page dissent can read it online at www.supreme court.gov/opinions/09pdf/08-205.pdf.
Robert Barnes, “Justices to Review Campaign Finance Law Constraints,” Washington Post, June 30, 2009, http://www.washington post.com/wp-dyn/content/article/2009/06/29/AR2009062903997 .html.
Citizens United v. Federal Election Commission, 558 U.S. __ (2010), http://www.supremecourt.gov/opinions/09pdf/08-205.pdf.
216 Rebooting the American Dream
David D. Kirkpatrick, “In a Message to Democrats, Wall St. Sends Cash to G.O.P.,” New York Times, February 7, 2010,http://www .nytimes.com/2010/02/08/us/politics/08lobby.html”> http://www .nytimes.com/2010/02/08/us/politics/08lobby.html.
Bill Moyers and Michael Winship, “What Are We Bid for American Justice?” Huffington Post, February 19, 2010, http://www.huffington post.com/bill-moyers/what-are-webid-for-ameri_b_469335.html.
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