Uh oh… ending corporate personhood isn’t enough to fix our democracy

  • Published on April 17th, 2012

We’ve written quite a lot about the problems with the Supreme Court’s Citizens United decision, and how it unleashed a citizens united... ending corporate personhood isn't enough to save democracytsunami of corporate campaign cash that is swamping our democracy. (For background, see: The Story of Citizens United – Why democracy only works when people are in charge.)

But writing at The American Prospect, writer/law professor Garrett Epps says Citizens United is just the tip of a 40-year-old iceberg, so even passing a constitutional amendment ending corporate personhood won’t solve the problem.

For starters, he notes that the very same Supremes who voted for unfettered campaign money were perfectly willing to recognize that there can be reasonable, sane limits on corporate personhood in other contexts. For instance, just last year, when AT&T tried to take advantage of a “personal privacy” exemption in the Freedom of Information Act:

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.”

Harsh, but fair. But if poor li’l corporations shouldn’t “take these things personally”, then why do we have this bizarro-world notion that corporate speech (=cash) can’t have any sort of limit set on it?

The problem comes when we hit the First Amendment. Epps notes:

  • 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.
  • Current caselaw maintains that attempting to “level the playing field” is 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.

He points to the Buckley decision, the 1976 case that tossed out the first attempts, post-Watergate, to reign in corporate interference in elections, which said, “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

And that’s where Epps thinks we went off the rails. Because the court made no attempt to justify that statement. And anyone with 1/3 of a brain can immediately come up with a bunch of really cogent counter-examples, which Epps proceeds to do:

  • 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.
  • 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?

Funny thing, though…  the court is perfectly willing to block out exceptions when it comes to “persons” who don’t happen to have extensive market capitalization and powerful boards of directors – you know, the ones like you and me, with social security numbers and families and… brains.

Like Morse v. Frederick, where the court said free speech didn’t protect a kid holding a “BONG HiTS 4 JESUS” banner while NOT at school from being suspended, or Garcetti v. Ceballos where free speech didn’t protect a cop from harassment by his boss for testifying truthfully under oath in a way the boss didn’t like. As Epps puts it, “…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.”

There’s lots more… read the whole article at The American Prospect.

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About the Author

Jeremy Bloom is the Editor of RedGreenAndBlue. He lives in New York, where he combines his passion for the environment with his passion for film, and is working on making the world a better place.
  • Great points! I’ve known too many people lately who think overturning Citizens United would fix everything, like it wasn’t all buggered up before that, anyway. Still, though, it seems that corporate campaign financing DID go more out of control immediately following that decision; I like to cite Art Robinson’s campaign against Peter DiFazio here in Eugene as an example. So even if an anti-corporate personhood amendment wouldn’t fix everything, surely it would help enough to be worth the effort and political capital?

  • We at Renew Democracy agree! Our goal is to renew American democracy by creating a political climate and national will to promulgate a constitutional amendment ensuring the primacy of the individual voter in the American political process. 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. We have no current constituency and thus our proposal is bolder, far more powerful, and less partisan than any current formulation for an amendment.

    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.