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Watch Out Plutocrats, the Progressive Pro-Democracy Movement Is Savvy and Gearing Up to Take on Citizens United

There's a sophisticated pushback against corporate power in the works.

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The first slogan, "Money is not speech," seeks to get big money out of elections by newly empowering Congress to decide how money can be raised and spent in campaigns. This addresses the numerous ways the Supreme Court (and lower federal courts) have taken that power away from Congress, starting with a 1976 ruling, Buckley v. Valeo, that said spending money is speech and cannot be limited. Equating spening money as the highest form of political speech protected by the U.S. Constitution arguably has led to every big loophole and abuse in campaigns in recent decades. It also created a legal doctrine that has continued to unfold that’s deregulated spending limits, including in Citizens United which freed corporations and unions to spend unlimited sums in campaigns not tied to a candidate. (In 2012, Americans saw those "independent" efforts very much take sides.) 

One intriguing presentation by California Common Cause’s Derek Cressman discussed how the legal wording in reform efforts could be more precise to deal with the spending abuses that Buckley unleashed. It’s not good enough to say that Congress can “regulate spending,” as congressional proposals now state, Cressman said, because that could invite abuse by lawmakers. Instead, he suggested empowering Congress to “limit” the category of messaging that’s most harmful to democractic debate, which is paid “advertising.”     

That distinction might reel in wealthy partisans who brazenly funded 2012’s super PACs (Lessig said 132 people gave 60 percent of the $631 million raised) or who hide behind opaque front groups led by political consultants. But it wouldn’t stop an individual from personally speaking out under reasonable spending caps for indivduals, Cressman said.

A second constitutional amendment concerns corporate personhood issues, as expressed by the slogan, “Corporations are not people.” This is shorthand for an array of corporate power abuses that go beyond electioneering by big businesses directly or their agents—whether longtime trade associations like the U.S. Chamber of Commerce or new groups abusing their non-profit tax status. It also concerns commercial speech rights awarded by federal courts that have blocked government-backed health labels on cigarettes boxes, milk containers and cellphones.

This slogan has been the most popular cry at the grassroots, reflecting the grievances average Americans feel about their shrinking power when dealing with large institutions, particularly big businesses. The Move To Amend coalition, with roots in California’s Green Party, has pushed hundreds of local governments to adopt resolutions calling for an amendment that states business entities “shall have no rights under this Constitution.” That’s been very controversial for several reasons. It is radical, sweeping and some say punitive. Those factors have prompted some legal scholars and ex-corporate lawyers to conclude that it’s more symbolic than serious—or just not workable after more than 200 years of state and federal legal precedent. But that view also shifted at the conference.

“I want to talk about why we need an amendment that overturns corporate rights in our Constitution, and as I said, they’re not there,” said Clements, noting the Constitution did not refer to corporations but to people. “There are a whole lot of complicated cases that will come to the Supreme Court if we no longer allow corporations to take our rights and turn them against us. There will still be cases involving media corporations, non-profits—cases involving corporate entities. But the Court will be required to look for a human being who has a human rights claim—and sometimes they will find it.”      

Where this argument jumped to a new level came after parsing the categories of corporate rights that have been granted by the courts. Several scholars wrote papers and discussed what kinds of constitutional rights corporations now have, and why courts have awarded and expanded those rights over time.