Previously, George Will‘s column in WaPo was criticized here by Move to Amend’s Rochester affiliate coordinator, Sam Fedele, and the target of Will’s criticism, Congressman McGovern. In this piece, MTA’s Michael Coburn of Tacoma, WA weighs in to criticize how Will framed his criticism of the amendment proposed by McGovern.
The article from George Will is typical, false framing from the right. And it is a trap, well laid by the conservatives to bait us into defending concepts and “progressive” ideas that may need to be left unaddressed. Mr. Will sets up a false frame in his opening remarks charging that liberals want to limit the speech of people as they gather in groups. This is actually two lies in one. But our members seem so dedicated to preserving the rights of “electioneering speech” currently enjoyed by labor unions that we fail to take a consistent stand about what should truly be at issue. And the conservatives will abuse those internal inconsistencies over and over again as George Will has done.
The first and most important of the two lies is the charge that we seek to place any limits on what sane people call “political free speech.” We must learn to absolutely distinguish between “political speech” and “electioneering communications” because the issue of freedom to espouse one’s views in regard to ideology and religion, and the freedom to indulge in issue advocacy (political speech) are not being attacked in any way by insisting on rules concerning “electioneering communication.” This is the first “big lie” being used against our efforts to not just reinstate McCain Feingold, but to expand it in a way that insures government of, by and for the people as opposed to a government of, by and for special (money) interests.
The second lie from Mr. Will is that corporate funds of union funds are representations of the political and/or electioneering opinions of all the members of the group from which the funds are derived. In the case of the Sierra Club or the NRA, the claim of join ideological opinion and issue advocacy may be valid. But in the case of business entities (including labor unions) where profit and wages are the primary concerns, the claim of “shared” ideology rises to the level of support or condemnation of a particular candidate for office is irrelevant as well as being a lie. In the real world, such support or condemnation of a particular candidate for office can be fully exercised outside any group. The selection of one candidate over another is espoused and absolutely valid when that choice is made by the individual through contributing to his or her favored candidate/representative in whatever way the individual deems appropriate:
“A government is republican in proportion as every member composing it has his equal voice in the direction of its concerns: not indeed in person, which would be impractical beyond the limits of a city or small township, but by the representatives chosen by himself and responsible to him at short periods.”
~~Thomas Jefferson to Samual Kercheval, 1816
My own theory is that the forgoing observations concerning group speech tell us why the first amendment clearly distinguishes the groups that have constitutionally protected speech. The groups afforded that protection are the press, the church, and the people assembled specifically to pronounce shared political opinion. There should be few doubts as to the reasons for such protections and such limitations.
When the First Amendment declares that the Congress shall make no law abridging free speech, it is assumed that the statement applies to sane, breathing persons within the jurisdiction of the Constitution itself. The prohibition does not extend to foreign nationals funding a corporate entity in the United States, parrots, whales or even individual lunatics who scream “FIRE!” in a crowed theater. Literal (textual) interpretations as applied by the Supreme Court in the Citizens United case will forever be uncertain and prone to error.
The Roberts Court, in its Citizens United ruling, has clearly illustrated the need for a Constitutional clarification on this issue. Such an important decision should not be left to the whims of an un-elected and unaccountable judiciary. Constitutional protection for incorporated entities should be clarified by the people through acts of ratification in order to remove such decision from the province of the judiciary and the TwoParty. Stated in a different way: if incorporated entities are to enjoy any sort of protections from the legislative and executive acts, then these protections should be explicitly stated in one or more Constitutional amendments ratified by the people.
PLEASE FEEL FREE TO USE ANY OF THIS LANGUAGE YOU MAY WANT TO USE.
Mike Coburn adds that these are his own opinions and do not necessarily reflect those of the members of either Move to Amend or Abolish Corporate Personhood Now.
Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph.
~~Thomas Paine in Common Sense
A piece in the New York Times caught our attention. In ” ‘We the People’ loses appeal with people around the world,” author Liptak references Stanford Levinson’s book, Our Undemocratic Constitution. In it the author wrote that “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.”
As we struggle in the coming years to undo the corporate state that the United Corporations of America has become, that is something to keep in mind. It took 45 years to overturn the SCOTUS decision Minor v. Happersett with the 19th Amendment that granted women in the United States the right to vote. (16 more Republican Senators voted for that amendment than Democratic Senators.)
This struggle against corporate Constitutional rights will not be over any time soon. Right now we have the momentum gained in the aftermath of the Citizens United decision, but the corporatists in Congress are in the majority in the House and it only takes one corporate Senator to put a hold on any bill in the Senate. If we are to save the democratic nature of our Republic, however, we must persevere.
Conservative Reasons to Abolish Corporate Constitutional Rights
The structure of a corporation separates humans from their actions. They destroy responsibility and hijack decision-making. They make humans do things collectively that they would never do as individuals: poison water, deny healthcare and destroy the planet.
A person is a private entity with rights and sovereignty. A corporation is a public entity with obligations and responsibilities. The American people are sovereign over the government, not the other way around. We should also be sovereign over everything the government creates. All legal fictions are creations of government. If the creation is given power over the creator, then sovereignty is lost.
Conservative Reasons to End the Doctrine that Money is Speech
Citizens United v FEC
The Republic in Crisis
The following article by Stephen D. Foster Jr. was published on Addicting Info: The Knowledge You Crave on May 16th, 2012. It is being republished here with permission of the editor, Wendy Gittleson. First, we must take issue with Foster’s claim that Citizens United declared corporations as people. The SCOTUS originally did that in 1886 and first granted corporations the rights of the 14th Amendment (due process and equal protection under the law) in 1889. They also do not have the “same rights as people do.” They do not have the right to vote in elections and they have not been granted 2nd Amendment rights…yet. Additional information contributed to Foster’s analysis is provided in blue to differentiate his text from that of this blogger.
Citizens United. This is the 2010 Supreme Court case that shocked America, influenced an election, and reversed over 100 years of campaign finance laws. In this case, corporations were declared as people and as such declared to have the same rights as people do. It also opened the doors for corporations to pour unprecedented amounts of campaign donations into elections, and what’s more, these donations can be totally secret. Corporations can now literally and legally buy elections and shape the government like never before in our nation’s history.
The economic world we live in today is dominated by corporations. Huge corporations that boast massive profits and span continents. But corporations also wield political power and are lobbying heavily to be free from any and all government regulations that would make them responsible and liable. Republicans have been defending corporations since the late 1800′s and have literally gone on a history revising crusade to show that even the founding fathers supported corporations. But is this the case? What did the founders really think about corporations?
The origin of modern corporations can be traced all the way back to 17th century England when Queen Elizabeth I created the East India Trading Company. At first, corporations were small, quasi government institutions that were chartered by the crown for a specific purpose. If corporations stepped out of line, the crown did not hesitate to revoke their charters. Corporations generated so much revenue that they even began taking on increased political power. Corporations were also organized to finance large projects such as exploration with a Vancouver mortgage broker, which leads us to the American colonies.
To say that the founding fathers supported corporations is very absurd. Its quite the opposite in fact. Corporations like the East India Trading Company were despised by the founders and they were just one reason why they chose to revolt against England. Corporations represented the moneyed interests much like they do today and they often wielded political power, sometimes to the point of governing a colony all by themselves like the Massachusetts Bay Company did.
But there is more evidence that the Revolutionary generation despised corporations. The East India Company was the largest corporation of its day and its dominance of trade angered the colonists so much, that they dumped the tea products it had on a ship into Boston Harbor which today is universally known as the Boston Tea Party. At the time, in Britain, large corporations funded elections generously and its stock was owned by nearly everyone in parliament. The founding fathers did not think much of these corporations that had great wealth and great influence in government. And that is precisely why they put restrictions upon them after the government was organized under the Constitution.
After the nation’s founding, corporations were granted charters by the state as they are today. Unlike today, however, corporations were only permitted to exist 20 or 30 years and could only deal in one commodity, could not hold stock in other companies, and their property holdings were limited to what they needed to accomplish their business goals. And perhaps the most important facet of all this is that most states in the early days of the nation had laws on the books that made any political contribution by corporations a criminal offense. When you think about it, the regulations imposed on corporations in the early days of America were far harsher than they are now. That is hardly proof that the founders supported corporations. In fact its quite the opposite. The corporate entity was so restrictive that many of America’s corporate giants set up their entities to avoid the corporate restrictions. For example, Andrew Carnegie set up his steel company as a limited partnership and John D. Rockefeller set up his Standard Oil company as a trust which would later be rightfully busted up into smaller companies by Theodore Roosevelt.
For those who need more evidence, how about statements from the founders themselves. As we all know, big banks are also considered corporations and here is what Thomas Jefferson thought about them. In an 1802 letter to Secretary of State Albert Gallatin, Jefferson said,
“If the American people ever allow private banks to control the issue of their money, first by inflation and then by deflation, the banks and corporations that will grow up around them (around the banks), will deprive the people of their property until their children will wake up homeless on the continent their fathers conquered.”
Thomas Jefferson also said this in 1816:
“I hope that we shall crush in its birth the aristocracy of our monied corporations, which dare already to challenge our government to a trial of strength, and bid defiance to the laws of our country.”
Jefferson wasn’t the only founding father to make statements about corporations. John Adams also had an opinion.
“Banks have done more injury to the religion, morality, tranquility, prosperity, and even wealth of the nation than they can have done or ever will do good.”
James Madison, primary author of the Constitution wrote, “there is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations. The power of all corporations, ought to be limited in this respect.” –Detached Memoranda, circa 1817. “Evil” transnational and other giant corporations that continue functioning after the death of the people who started them were certainly not to be the holders of god ordained (according to the Declaration of Independence) rights.
These statements make it pretty clear that corporations were not trusted by the founders. The founders knew that huge corporations only preyed upon the people. But as the founding generation began to fade away, corporations began using their power to gain political favor and eventually that political favor would turn into political power. And corporations would take advantage of a war to do it. As the Civil War raged across the land, corporations made an effort to take advantage of the situation, selling products at high prices, especially to the government. Corporations even sold to both sides throughout the war. Basically, corporations proved even then that they had no allegiance to any country when great profits were at stake. Abraham Lincoln, the first Republican to be President also had plenty to say about corporations…
“The money powers prey upon the nation in times of peace and conspire against it in times of adversity. The banking powers are more despotic than a monarchy, more insolent than autocracy, more selfish than bureaucracy. They denounce as public enemies all who question their methods or throw light upon their crimes. I have two great enemies, the Southern Army in front of me and the bankers in the rear. Of the two, the one at my rear is my greatest foe.”
And in a November 21, 1864 letter to Col. William F. Elkins, Lincoln wrote,
“We may congratulate ourselves that this cruel war is nearing its end. It has cost a vast amount of treasure and blood … It has indeed been a trying hour for the Republic; but I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country. As a result of war, corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands, and the Republic is destroyed. I feel at this moment more anxiety for the safety of my country than ever before, even in the midst of war. God grant that my suspicions may prove groundless.”
Unfortunately, Lincoln’s suspicions were anything but groundless. They were in fact, prophetic. After the Civil War, corporations began aligning themselves with Republican politicians, who proved themselves to be up to the task of helping corporations gain more power. Corporations had free reign and total power over its workforce and could sell virtually anything they wanted even if the product was a bad one. Corporations treated workers like slaves. Wages were extremely low. Workers received no benefits, no vacation days, no health insurance, no workers compensation. President Grover Cleveland witnessed how corporations treated its labor force and had this to say in 1888,
“As we view the achievements of aggregated capital, we discover the existence of trusts, combinations, and monopolies, while the citizen is struggling far in the rear, or is trampled beneath an iron heel. Corporations, which should be the carefully restrained creatures of the law and the servants of the people, are fast becoming the people’s masters.”
To put it bluntly, corporations didn’t care about its workers or the people who bought their products. The only rule of the game was to make as much profit as possible, no matter what. As the 19th century ended and the 20th century began, corporations were getting bigger and bigger. Many began buying up smaller companies, becoming monopolies that controlled whole industries. This practice eliminated competition and as a result, prices had skyrocketed and no one could challenge them. That was, until Theodore Roosevelt became the President. Theodore Roosevelt did not hate corporations. He simply wanted them to treat workers how they deserved to be treated and to serve the public faithfully and honestly. He believed in honest competition and fair prices. Roosevelt believed that government had not only a duty, but a right to regulate corporations just as the founding generation had done, stating that,
“The great corporations which we have grown to speak of rather loosely as trusts are the creatures of the State, and the State not only has the right to control them, but it is duty bound to control them wherever the need of such control is shown.”
And in his State of The Union Address in 1902, Roosevelt stated his intentions toward corporations.
“Our aim is not to do away with corporations; on the contrary, these big aggregations are an inevitable development of modern industrialism, and the effort to destroy them would be futile unless accomplished in ways that would work the utmost mischief to the entire body politic. We can do nothing of good in the way of regulating and supervising these corporations until we fix clearly in our minds that we are not attacking the corporations, but endeavoring to do away with any evil in them. We are not hostile to them; we are merely determined that they shall be so handled as to serve the public good. We draw the line against misconduct, not against wealth.”
To that end he fought for corporate regulation, he fought for fair wages for workers, he fought for safe and healthy work environments, and he fought to protect consumers. And the people loved him for it. Roosevelt’s policies toward corporations were immensely popular. He busted up so many giant corporations that he became known as a “trust buster”. The busting up of these corporations created a lot more competition for customers and for employees, resulting in higher wages and lower prices and more jobs. And you know what? Corporate profits did just fine.
Teddy never stopped fighting for workers and consumers even after his presidency when he said this as the Progressive Party candidate for President in 1912,
“We wish to control big business so as to secure among other things good wages for the wage-workers and reasonable prices for the consumers. Wherever in any business the prosperity of the businessman is obtained by lowering the wages of his workmen and charging an excessive price to the consumers we wish to interfere and stop such practices. We will not submit to that kind of prosperity any more than we will submit to prosperity obtained by swindling investors or getting unfair advantages over business rivals.”
Roosevelt didn’t win the presidency in 1912, although he most certainly would have if the Republican ticket hadn’t been split. But Woodrow Wilson would continue the fight for workers and consumers. As America entered the 1920′s, corporations began to gain political favors once again as business minded Republicans controlled the White House and Congress. Regulations were being stripped away and banks as large entities were on the rise. These banks and corporations abused the stock market which would lead to the crash of 1929 and the Great Depression. Corporate profits had surged throughout the decade and unfair speculation had caused economic bubbles that had to burst.
Corporate bosses also flexed their muscles over America’s legal system, spending great deals of money to get away with nearly anything. In a statement of sarcasm that speaks to this despicable practice, Senator George Norris, after an industrialist was acquitted of charges of corruption, said that “We ought to pass a law that no man worth $100,000,000 should be tried for a crime.”
The Franklin Roosevelt era would bring new calls for corporate regulation and corporate tax hikes. These new regulations once again kept corporations honest and protected consumers. Workers also benefited from these new regulations, getting fair wages, pensions, and safe working conditions while employed as a plumber in Red Deer AB. Corporations were taxed at a rate of 91% and even with all of that, corporations still made huge profits. Life changed dramatically for the middle class. People had jobs with livable wages and promise for the future. Corporations once again served a purpose as consumers were treated fairly and the economy soared. Unemployment was also very low. But these trends did not last long as corporate greed would once again fuel another grab for political power. Corporations began aligning themselves more and more with the Republican Party, and as this relationship grew, corporations found a way to make record profits. Throughout the 1980′s up to today, corporations have outsourced millions of American jobs to cheap labor overseas from building cars, manufacturing shoes, IT support or even SEO Vancouver. As a result of this, corporate profits have broke record after record, while the unemployment rate has jumped higher and higher. Corporate tax rates began getting lower and lower, while more tax loopholes were created to help corporations evade most of them altogether. When the Republican Party took control of government in 2001, they went on a crusade on behalf of corporations (how could they refuse, they were on the payroll), to blame workers for economic downturns and outsourcing. Corporations also decided to take advantage of a national tragedy. After 9/11, there was an understandable push to go to war against terrorists hiding in Afghanistan. But corporations, as in other times of war and tragedy, began pushing for a war against Iraq. And they got their wish. Corporations have since made billions in war profits off of the War in Iraq and have proven once again that profit is far more important than the lives of soldiers. Lincoln was right. This is yet another reason why corporations need to be put in their place. As Henry Ford once said, “Do you want to know the cause of war? It is capitalism, greed, the dirty hunger for dollars. Take away the capitalist and you will sweep war from the earth.”
Republicans are now on the verge of stripping away all corporate regulations and worker’s rights. But it was the 2010 Citizens United decision that really made corporations into political powers. Not only were corporations declared to be people but corporations also now have the power to buy elections at will. The problem with this Supreme Court decision is that it goes against everything the founding fathers believed in. In the Constitution, it says “We the people…”, not “We the corporations…”. The founding fathers never addressed corporations in the Constitution because it never occurred to them that corporations would be perceived as people. And why would they have? Corporations don’t eat, they don’t breathe, they don’t vote, they don’t fight battles in wars. Remember all the limitations the founders placed on corporations mentioned earlier? In the Constitution, the founders speak only of the people. The founders did not limit lifetimes of people, nor did they outlaw a persons right to donate to political campaigns. They also did not limit people to specific life goals like they did with corporations. This should make it absolutely clear that the founders never intended for corporations to be people. The decision by the clearly activist, conservative majority of the court is an abomination that can never be Constitutionally justified. Now it is our duty to call on Congress to bring forward a Constitutional Amendment that bans corporate personhood and bans corporations from interfering with government and legal elections that only real people have the right to donate to and vote in. Because whatever these greedy, arrogant CEO’s and Republicans think, its the opinion of the founding generation that matters most. Corporations are not people. People are people.
The following was written by Sam Fedele, coordinator of the Rochester, NY affiliate of Move to Amend. Sam is responding to a column in WaPo by George Will entitled “Taking a scythe to the Bill of Rights.”
At some level, most Americans have the uneasy sense that our republic is no longer “of, by, and for the people.” Billionaires, industry groups, and their paid agents, riding on a series of Supreme Court decisions, have methodically insinuated themselves into government as organically and quietly as the roots of a thirsty willow into moist soil. We the People have been reduced to workers and consumers without much of a say.
In 1961, Eisenhower signaled an early warning of a “newly vast and powerful defense industry” rooting deeply into a complicit Congress. Ike correctly saw the serious implications of this uncomfortably cozy relationship between the military, the defense industry, and the Congress, and courageously dedicated the entirety of his farewell address to warn the nation. But Ike’s call for a “vigilant and knowledgeable citizenry” did not materialize. We were distracted by the new prosperity, caught up in moving up.
Since Eisenhower’s time this dependency relationship between Congress and the corporate world has become stronger, broader, and inextricably entrenched. Incrementally, and under the radar of most good Americans trying to make a living and raise their families, corporations have invaded and successfully occupied the Capitol, their presence now firmly and famously established on K Street. Enabled by a series of Court decisions, corporations have been at once fueling and riding the wave of escalating campaign costs into firm control of the People’s representatives dependent upon corporate money to stay in office. This dependence on big money is among the few truly bipartisan realities in DC.
The Supreme Court, not the People’s elected representatives, delivered this silent corporate coup by establishing two judicial doctrines: that spending money on elections is constitutionally protected free speech, and that corporations are “people” and therefore entitled to the inalienable constitutional protections meant for natural persons. These doctrines were most recently summoned in the 2010 decision in Citizens United v. the Federal Election Commission, which infamously permits corporations and unions to spend limitless amounts of money to ensure favorable legislation, unwarranted subsidies, no-bid, cost-plus contracts, SEO Phoenix and a labyrinth of tax loopholes.
But finally people are saying enough, and have begun working to amend the US Constitution to remove these problematic doctrines from the framework of government. Ballot initiatives aimed at abolition are regularly passing 3 to 1; towns, cities, and state legislatures across the nation are issuing resolutions petitioning the Congress to act. And a dozen amendment proposals are currently circulating in the halls of Congress. The notion has wide support among the People across the political spectrum and is gaining traction with legislators.
This, of course, is not good news for the moneyed elites currently in control. So they have summoned their henchmen to run interference, using tactics that have worked for hundreds of years: fear and division. George Will’s recent syndicated piece is a perfect example. He picks on the amendment proposal sponsored by Representative Jim McGovern of Massachusetts. Will has deep experience in the influence trade and makes this choice with intent to evoke our ingrained association between “Massachusetts” and “liberal” since his divide and conquer strategy is to falsely paint the amendment movement as “liberal” (while in reality, support is very strong among the People independent of political affiliation). He further incites conservatives when he disingenuously pronounces that McGovern’s “purpose is to vastly expand government’s power”, exactly the opposite of McGovern’s real intent, which is to return control of government to ordinary citizens.
Will deftly follows his divide and conquer move with an appeal to his old standby, fear. With a straight face he claims that McGovern’s amendment “is explicitly designed to deny constitutional rights to natural persons who, exercising their First Amendment right to freedom of association, come together in corporate entities to speak in concert.” But eliminating constitutional protections for corporate entities would have no impact on the rights of individuals, whether corporate employees, board members, or shareholders.
Will concludes his fear blitz with a rabid riff of falling-sky scenarios: newspapers censored, book publishers squelched, religions regulated, and corporate assets seized. But these Chicken Little apprehensions are unsupported by history. Corporations operated for centuries before the US Constitution was written and did just fine. The framers were wary of corporate power and made no mention of corporations in the Constitution. Corporations are legal creations of the state and are free to operate within the statutory boundaries of their charters. And while they often posses expertise valuable to the legislative decision process, they are in no way empowered by their charters to use their vast wealth to blackmail the decision makers.
Amending the Constitution, as it should be, is a very heavy lift. Success is contingent on massive awareness and unprecedented cooperation across the political spectrum. We will need to overcome the divisive tenor of political discourse set by talk radio and TV mounting Phoenix AZ talking heads. Conservatives, liberals, and most of us in between must come to re-appreciate each another as fellow citizens and begin to realize that we have much, much more in common than we do with billion-dollar-a-year hedge fund managers. Sure, some people like Fords, some like Chevys, some are Yankee fans, some like the Red Sox, some think individuals should be responsible for their own health care, some think we should pool resources, some think we should hire a property manager. That’s fine and healthy. But if what you think about a critical issue doesn’t matter to your representative in Washington (or Albany) because he or she must worry about what the funders think first, then we share the same problem as the early revolutionaries – we have no true representation in government. It doesn’t matter where you stand on issues like the economy, war, the environment, or social security if your voice is superseded by the court-enforced rule of big money.
To revive true representative democracy in America we’ll need all hands on deck working together, right, left, and the disengaged masses in between. So please consider making a personal commitment to fully comprehend and spread this message until it becomes part of the fabric of popular political thought. The corruption of our electoral process by economic interests is the root cause of our cross partisan dissatisfaction with Washington. Without a plainly-worded Constitutional amendment, our nation will continue its progression towards plutocracy; Wall Street will tighten control of our legislative bodies, our policies, laws, and regulations.
So please, refuse the bait set out by agents of the moneyed elite. Investigate, think critically, and get personally involved. It’s time for all Americans to come together with a solidarity unseen for decades to demand that our elected officials restore sanity to our electoral process and integrity to our legislative bodies. Divided by fear we will surely fall.
Update, 5/25/2012: Congressman Jim McGovern has written a terrific reply to George Will’s piece. Although the Post has declined so far to publish it, despite repeated requests, it’s just been published at the Huffington Post and we want you to see it. Here it is:
RESCUING ‘WE THE PEOPLE’
Defenders of the Supreme Court decision in Citizens United and the ascendant Corporate Rights doctrine that underlies it must be getting nervous. Why else would George Will resort to arguing, as he so outrageously does (“A Scythe Against Free Speech, May 6) that the bipartisan People’s Rights Amendment I have introduced in the House is “comparable” to condoning infanticide?
A large majority of Americans believe that corporations exert too much influence on our daily lives and our political process. A Hart Research poll released last year found that nearly four in five (79%) of registered voters support passage of a constitutional amendment to overturn Citizens United. Resolutions calling for such an amendment have passed in several states and cities across the country. Eleven great Las Vegas personal injury attorneys have written to Congress demanding action.
We are already witnessing the corrosive effects of Citizens United: an election system awash in a sea of millions of dollars in unregulated money, drowning out the voices of individual citizens. Politicians are increasingly beholden to wealthy special interests. A multi-national oil company that doesn’t like a particular member of Congress can now simply write a big, undisclosed check to “Americans for Apple Pie and Puppies” and watch the negative advertisements work their magic.
But the effects of the Corporate Rights doctrine go far beyond campaign finance. A Vermont law to require that milk products derived from cows treated with bovine growth hormone be labeled to disclose that information was struck down as a violation of the First Amendment. A federal judge has found that tobacco companies have a free speech right that prevents the government from requiring graphic warning labels on cigarettes. A pharmaceutical corporation has claimed that their corporate speech rights protect them from FDA rules prohibiting the marketing of a drug for “off-label” uses.
As Justice Stevens rightly noted in his dissent in Citizens United (and contrary to what Mr. Will would have us believe), the majority ruling was “a radical departure from what has been settled First Amendment Law.” These corporate “rights” are relatively new, appearing in the last few decades. They overturn centuries of established jurisprudence and national consensus. The Supreme Court used to repeatedly affirm that the elected governments of the states and the nation could regulate corporations. Chief Justice John Marshall described the corporate entity as “an artificial being … existing only in contemplation of law.” No less an authority than James Madison viewed corporations as “a necessary evil” subject to “proper limitations and guards.” Thomas Jefferson wished to “crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.” There is nothing “originalist” about the Corporate Rights doctrine, and it is no mere accident that the first three words of the preamble to our Constitution are “We the People.”
Mr. Will conjures up a nightmare scenario under the People’s Rights Amendment under which “[n]ewspapers, magazines, broadcasting entities, online journalism operations – and most religious institutions” would be stripped of all constitutional rights. Wrong. Those rights were properly secure before the modern fabrication of the Corporate Rights doctrine and would continue to flourish. The people who make up those institutions, whether acting as individuals or in groups, would continue to enjoy the liberties we all hold dear and the Constitution enumerates. Corporations would continue to have legal standing to advocate on behalf of the people associated with them. But the fiction that an artificial corporate entity is itself entitled to the same rights of citizenship as people would come to an end.
Corporations are created by the people, acting through their governments. We grant them corporate charters that confer certain legal rights and privileges, like the ability to enter into contracts, limited liability and perpetual life. These rights serve an important and useful role in our economy. But our most sacred rights – those enshrined in the Constitution – should be reserved for “We the People.”
Mr. Will says that “controversies can be wonderfully clarified when people follow the logic of illogical premises to perverse conclusions.” Indeed. By conflating a good-faith attempt to overturn Citizens United with the killing of newborn babies, banning political speech and regulating religious practices, his column demonstrates the lengths to which the supporters of the Corporate Rights doctrine will go to protect their newfound gains.
Jim McGovern is a U.S. Representative from Massachusetts.
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