May 22, 2012
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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
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.
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
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.