'We the People' versus 'We the Corporation': Sentiment Builds for Banning Corporate Personhood, But Tough Road Ahead.
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So there are two schools of thought on how broad or narrow a constitutional amendment proposal should be. Some of the earliest ones simply seek to overturn Buckley by saying Congress and the states have the power to regulate the way money is raised and spent in political campaigns. “If people had the upper-hand in our electoral system, would we still think it necessary to abolish all other corporate constitutional rights. Maybe, maybe not,” said Colvin, who suggested language saying that only citizens can donate to campaigns, that states and Congress could regulate the donations and expenditures, and also institute public financing.
But Bonifaz and advocates such as Rep. Jim McGovern, D-MA, who last week introduced amendment legislation to overturn corporate personhood, believe that solely addressing the problem posed by Buckley – of unlimited campaign spending, including, now, unlimited campaign spending by corporations – is not sufficient.
“I am on the same page as those who say we must overturn Buckley and have limits on campaign spending. I have led the fight in the courts for that for years,” Bonifaz said. “We must also have a response to the Citizens United ruling. It cannot solely be within the campaign finance frame. The Citizens United ruling is the most extreme extension of a corporate rights doctrine that has been eroding our democracy and our Constitution for 30 years.”
Intended and Unintended Consequences
The word “corporation” does not appear in the U.S. Constitution. Where corporations enter the law—as has been the case for all of American history—begins at the state level, where businesses are registered, chartered, regulated, taxed, and all manner of activities that constitute doing business in America. The Constitution’s framers were very clear that economic interests did not have the same rights as citizens. After all, the Revolutionary War was fought against unfair and excessive economic exploitation by Great Britain.
As the decades of American history and law unfolded, the use of the terms "corporation" and "persons" and other business entities became blurred and interchangeable, especially when states or Congress adopted new laws. But the Constitution was not amended in a manner granting corporations new rights and freedoms that belonged to people—such as the right to vote, to bear arms and so forth. Instead, corporate litigators going back to the Industrial Revolution began making arguments before the Supreme Court to try to prompt the court to extend to big businesses—such as railroads—the same protections that people were afforded under the Bill of Rights and other amendments.
There has been an ebb and flow of those rights and powers for more than a century. But in the past 30 years, culminating in Citizens United , the balance of power between individuals and corporations has swung away from average citizens to the richest and most powerful institutions. That is because they have found new ways to spend money in campaigns and have been awarded new speech rights in federal court.
What lawyers like Colvin fear about an amendment that seeks to overturn corporate personhood are the unintended consequences. On one hand, he said it would do too little—not stopping wealthy individuals from spending their own money. And it would do too much, he said, saying it could take away the ability for non-profits and unions to participate in politics under the current rules. For example, should the Sierra Club and ACLU have the right to privacy of membership lists? Should Planned Parenthood have the right to a lawyer in court; or protection against self-incrimination or double jeopardy?
"You want to minimize unintended consequences," Colvin said. "Sometimes it is better to figure out how things would be different if you make one change and see what that brings. If you get the big money out of elections, the corporate and wealthy donors would have less impact."