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The Uphill Battle Against Citizens United: Tricky Legal Terrain and No Easy Fixes

Is there anything in the years to come that can lead to a victory against the notorious Supreme Court decision?

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The second type of amendment proposals are reflected in the slogan, "Corporations Are Not People." Most notable are identical  measures from Rep. Ted Deutch, D-FL, and Sen. Bernie Sanders, I-VT, a like-minded  measure from Rep. Jim McGovern, D-MA, and  another from Rep. Keith Ellison, D-MI. They seek to address the distinct issue of corporate personhood by declaring, as in the McGovern proposal, “the rights protected by this Constitution to be the rights of natural persons.”  

These measures, in varying ways, would strip corporations and other business and possibly charitable entities of their constitutional rights—and not just those pertaining to election spending or even under the First Amendment. They all make exceptions for “freedom of the press.” The most detailed language is in the Deutch-Sanders proposal, which is supported by most progressive groups. 

The Deutch-Sanders proposal goes on to ban “corporate and other private entities” from contributing or spending money “in any election.” Like the first group of proposals, it also grants Congress and states “power to regulate and set limits” on campaign donations and spending. By explicitly targeting profit-seeking corporations and their promoters, it carves out an exception for nonprofits and unions.  

Details are important. The Deutch-Sanders amendment would not stop groups like  Citizens United , the nonprofit group whose anti-Hillary Clinton video was at issue in the Supreme Court case, or some super PACs that are also organized as  nonprofits because it carves out an exception for nonprofits. Robert Weissman, the president of Public Citizen, which supports this amendment, said its authors discussed what rights corporations should have and concluded that none should be granted to for-profit entities under the Constitution. Congressional legislation could address those rights as needed, he said. 

That is a consequential decision and not a widely explained one. The Deutch-Sanders proposal would strip businesses of any size—not just big corporations—of the due process right to sue if property were seized. Liberal scholars point to the way President Truman sought to  seize corporate assets—steel mills after World War II—before being stopped by the Supreme Court in a famous 1952  decision.  

Grassroots proposals coming to Washington via  Move To Amend  are even more strident and call for stripping constitutional rights from all corporations, for-profit and nonprofit. That provision, were it in effect during the Civil Rights movement, could have  stopped the NAACP from operating. That very issue—did the NAACP, as a nonprofit corporation, have First Amendment rights to assemble and speak for members—arose in the famous 1963 Supreme Court case and ruling,  NAACP v. Button , in which the Court affirmed the NAACP’s First Amendment freedom to assemble, speak for members and represent clients. 

These kinds of consequences and issues are not too complicated to discuss or understand. They should be the staple of progressive talk radio shows, but mostly they are not. Instead, progressives driving the anti- Citizens United  and corporate personhood bandwagon are not being specific enough to threaten the big money forces in America. Instead, they risk alienating supporters by overpromising.  

“To focus on the fact that corporations are not technically people seems to be missing the point,” said Tokaji,  Election Law Journal’s  co-editor. “It’s really less focused on who’s a person and who’s not, than on the fact that certain big money interests are able to drown out other voices in the political conversation.”

To Tokaji, the most promising avenue is exploring how public financing can be revived under the current Court—especially since it did not reject it in wholesale fashion in the Arizona case. “If we want to talk about what meaningful reform can be accomplished given the constitutional doctrine we’ve really got, I think we are talking about public financing.”