May 22, 2012 |
The highest-profile tactic of the corporate personhood movement—calling on Congress to send a constitutional
amendment to the states that does not just reverse the Supreme Court’s
Citizens United
decision but declares that corporations do not have the same rights as
natural persons under the Constitution—may be doomed in Washington.
Across the country, hundreds of local and state governments have sent
resolutions
to Congress that combine the movement’s twin demands—that Congress take
back power from the Supreme Court to regulate campaign finances and
that it strip corporations of legal privileges in elections and society
at large. Washington lawmakers are taking the issue seriously.
On Sunday, House Minority Leader Nancy Pelosi
again said that
Citizens United has to be reversed. The Senate Judiciary Committee
announced it would hold hearings on the amendment
proposals. And the Supreme Court is slated to decide in coming weeks if it will use a Montana case that flatly
rejected key
Citizens United holdings to
revisit those issues.
But as official Washington gears up to confront the issue of
campaign finance abuses, which include corporate constitutional rights
under the First Amendment, the corporate personhood movement is heading
into round one of this long fight with somewhat weak hands. It has an
imprecise message and imperfect messenger in the Senate. It has liberal
critics who say the focus on stripping corporate rights is a dangerous
distraction. And it faces
facts from the 2012 campaign that are not buttressing its case—because it has so far been wealthy individuals,
not corporations, that have invested the
biggest bucks in this cycle.
“This is more than just an intellectual spat between lawyers,”
wrote
Kent Greenfield, a liberal Boston College Law School professor who is
not impressed with the corporate personhood campaign. “If progressives
are split, the benefactors of corporate money will have an easy job
obstructing any meaningful reform. If progressives can agree on a
remedial strategy, we might have a shot at getting something done.”
Imprecise Message, Imperfect Messenger
Right now, progressives are split. And the differences and
difficulties go deeper than who is taking the most purist—or
intellectually consistent—approach on corporate constitutional rights.
The most visible split, which is the first fork in the road where
the corporate personhood movement may be left in the dust, concerns its
focus. Most of the lawmakers who have
proposed constitutional amendments—and many of the
largest cities
sending resolutions calling for action, like New York and Los
Angeles—don’t want to address personhood issues at all. They want
Congress to assert its authority to regulate campaign finances, rolling
back nearly four decades of Supreme Court decisions that have created
many democracy-defeating loopholes around campaign donations, spending
and disclosure. That perspective and legislative empowerment approach is
embodied in the Senate
resolution with the most co-sponsors, from Sen. Tom Udall, D-New Mexico.
The Senate proposal that raises the corporate personhood issue is a
resolution
introduced by Vermont’s Bernie Sanders (there is a companion bill in
the House sponsored by Rep. Ted. Deutch, D-FL). Sanders’ resolution has
the legislative empowerment piece, but also would strip corporations of
their constitutional rights while exempting non-profits and unions. (All
the bills, Sanders' included, have exceptions for media and freedom of
the press, as that is specifically conferred in the First Amendment.) In
contrast, there is a House
bill from Rep. Jim McGovern, D-MA, which strips corporate constitutional rights without any exceptions for unions or non-profits.
What’s the problem with the Sanders bill—which has been championed by the public-interest group
Public Citizen?
Anybody who knows Bernie knows that he has attacked corporations and
defended unions for his entire career. That is fine, but championing a
bill that protects his allies and campaign contributors does not
generate much political credibility.
“For this amendment movement to be successful, it has to be
trans-partisan and reach across the political spectrum and not appear
that it is a political strategy for one side,” said John Bonifaz,
co-founder of
FreeSpeechForPeople.com,
which support McGovern’s proposal. “When we start creating these
carve-outs, we open ourselves to the claim that what we are really about
is not trying to get the message enacted, but using this as a campaign
issue and one that plays well with a certain base against another.”
Then, going deeper, there are intellectual and legal problems with
Sanders' proposal that are not going to help the corporate personhood
movement present its strongest argument. To Sanders’ credit, his bill
acknowledges that there are different kinds of corporations that deserve
different treatment under the Constitution. But the proposal, which is
likely to be the only one addressing corporate personhood at the
Judiciary Committee hearings, has a very big loophole that can easily be
attacked as hypocritical.
It would do nothing to rein in the conservative advocacy group
Citizens United,
which employed the strategy of organizing itself as a non-profit and
then viciously attacked Hillary Clinton in 2008, because, under Sanders'
bill, all non-profits are exempted. In other words, in addition to
carving out exceptions for his longtime allies and donors, his proposal
would not touch the loophole that launched the Supreme Court case that
everyone is trying fix. Thus, an imperfect message and imperfect
messenger appears poised to present the movement’s opening appearance
before a Senate committee that can draft constitutional remedies.
“I don’t think they are trying to get an amendment enacted,” said a
longtime democracy advocate who did not want his name used because the
world of liberal reformers is very small. “I think they are using this
as a vehicle to build a progressive style movement to get Democrats
riled up against Republicans.”
That may be true. It would explain why the authors of various
amendment proposals have ducked reporters’ questions about reconciling
the legislative empowerment bills and the corporate rights-stripping
bills at two Washington forums on the movement and
Citizens United—one by
People for the American Way
and another by Public Citizen. The reply at both events was that they
are building a movement now and will work out differences later.
But pushing cynical interpretations aside, there is a deeper
challenge the corporate personhood movement must overcome if it is to
have any traction beyond raising hopes at the grassroots—and then
leaving those hopes dashed, like Obama’s overpromises from the 2008
campaign.
Words Matter
The Achilles heel of Bernie Sanders’ bill—that it would leave intact the loophole that unleashed the Supreme Court’s Citizens United
ruling—presents a legal difficulty that corporate personhood
campaigners have to address if their efforts stands any chance of
impacting the law.
The law does not operate as a one-way street. Federal judges cite
the same amendments and legal rights to uphold the good guys as they do
to defend the bad guys. That the exception in the Bernie Sanders bill
intended to defend non-profits groups and unions that work for
individuals also exempts right-wingers who abuse the non-profit status
is a perfect example of why it is so hard to translate slogans—such as
“corporations are not people”—into effective law.
There has been a small but provocative debate online between
liberal lawyers who say, on one hand, that the corporate personhood
focus is a
blurry fantasy and demagogue’s
distraction, and those who forcefully
disagree.
On the distraction side, the argument essentially comes down to several
bottom-line points: that not all corporations are bad; that not all
corporate constitutional rights (such as those associated with
protection from government intrusion and seizing property) are bad; and
that if corporate personhood campaigners identified where the biggest
corporate abuses originate, they would find that they are not in
corporations having constitutional rights—particularly outside First
Amendment political and commercial speech.
Needless to say, corporate personhood campaigners reject this
analysis, starting with the bottom-line critique that the corporate form
has been used to help people beyond what they can accomplish as
individuals.
“We can’t get sidetracked by some false claim that corporate rights
are necessary to protect individual rights,” Bonifaz said. “If there
are individuals that are harmed, they have individual rights. The
government has ultimate control over corporations. That is the point
here. We govern corporations, not the other way around.”
Constitutional law is complex because it is filled with questions
that can be argued both ways. Right-wing think tanks on behalf of
multinational corporations now cite the same corporate rights that
helped defend the NAACP against racists. Reformers need to get past this
hurdle if they are not going to be left behind in what’s becoming a
growing Washington bandwagon to address the campaign finance loopholes
epitomized by the Citizens United decision.
The Bernie bill hinted at how the movement has to do that by
identifying whose rights are and are not to be protected. But it has to
get far more specific in pinpointing the corporate abuses and
constitutional remedies if it wants a seat at the table as the
discussion in Washington progresses. In fact, this level of specificity
is exactly what is occurring now at the Supreme Court where a handful of
liberal lawyers are urging it to use a Montana case to revisit the most
controversial issues in Citizens United.
A Way Forward
In recent weeks, various individuals and activist groups have been filing
briefs
to encourage the Court not to summarily reverse Montana’s state Supreme
Court ruling that upheld its 100-year-old ban on corporate political
activities—saying the state had compelling reasons, the highest standard
in law, to not follow the
Citizens United precedent.
Last week pressure on the Court went up quite a bit when senators
John McCain, the Arizona Republican, and Sheldon Whitehouse, a Rhode
Island Democrat, filed a brief saying the Supreme Court majority ignored
the facts compiled by Congress when it issued the Citizens United decision, and its assumptions and holdings were wrong. “The campaign finance system assumed by Citizens United is no longer a reality, if it ever was,” the senators’ brief concluded.
But more helpful to the personhood movement are two briefs
submitted by liberals that discuss corporate personhood issues with a
specificity that has been lacking in the debate so far. A brief by Free
Speech for People and several progressive business groups lays out the
history of prior Supreme Court rulings that have limited corporate
constitutional rights under various amendments, including the First
Amendment. It suggests there is a long legal history of limiting
corporate rights, including in elections, and the Court should use the
Montana case to review that lineage.
The most surprising and instructive brief, however, is by Burt
Neuborne on behalf of former litigation staffers at the American Civil
Liberties Union. It was not written on behalf of either party but
instead argued why the Court should reopen the case.
These former ACLU lawyers, who spent the earlier part of their
careers arguing that all political speech should be deregulated and have
since changed their minds, shrewdly point out past decisions where
Justice Anthony Kennedy, the Court’s swing vote and Citizens United
author, had said that different kinds of corporations were entitled to
different First Amendment rights. Neuborne, of course, is trying to back
Kennedy down from the fundamentalist stance about corporate speech he
took in Citizens United.
But there is a lesson in his brief that corporate personhood
campaigners would be smart to heed—even if it means they have to back
down from their fundamentalist stances. Neuborne identifies where
different kinds of corporate constitutional rights have been upheld by
the court—and have not—and identifies the common thread and principle
that he says the court abandoned in Citizens United: that
corporations only gain constitutional rights if they magnify the
interests of individuals, “the corporation’s human constituents.” He
argues that “multi-shareholder business corporations” do not meet that
standard in elections.
To suggest that there are different kinds of corporations, entitled
to different kinds of constitutional rights, might be a heresy to
grassroots campaigners who are calling for Citizens United to
be overturned and for corporations to lose their rights. But unless
these reformers start speaking with this level of specificity, their
proposals are not likely to be taken seriously—or even get a hearing in
Washington. They need to say when and where specific corporate forms are
abusing constitutional rights, and harming individuals and the
political process—or argue where specific corporate rights should stand.
To be fair, some people are doing that. But most of the frontline
activists, television and radio hosts—and supporters in Congress—are
not.
The good news is that momentum is building to address the electoral abuses unleashed by Citizens United. Now we need to get into the nitty-gritty of doing just that.
Steven Rosenfeld covers democracy
issues for AlterNet and is the author of "Count My Vote: A Citizen's
Guide to Voting" (AlterNet Books, 2008).
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