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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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Loyola Law School’s Elizabeth Pollman said they fall into three large areas—contracts and property; trials and searches; and political and commercial speech. Democracy reformers were mostly concerned about speech rights, she said. Cornel Law School’s Lynn Stout countered that it would not just be hard to unwind rights that the courts and state constitutions have granted, but unwise because treating corporations as legal persons allows all levels of government to regulate them. And UCLA Law School’s Adam Winkler said corporations don’t have the same First Amendment rights as people, though corporate lobbyists and the Supreme Court have confused that and taken incoherent stands over the years. 

But rather than getting lost in the weeds, these and other analyses led to an intriguing path that narrowed the focus but approached Clements' standard—that the only constitutional rights awarded to corporations should be for entities that are not involved in making money or protecting profits. San Francisco non-profit attorney Greg Colvin said that stripping corporations of First Amendment speech rights might provoke big business’ defenders to claim First Amendment rights of assembly. But Colvin had a way around that.

“You could prevent that from happening in the careful drafting of a constitutional amendment that said not only are we not going to permit corporations to have those rights under the U.S. Constitution—they may have those rights under state statutes and state Constitutions—but we're going to limit associational rights to individuals who come together for political and social purposes, not for the purposes of capital gain,” he said, saying the tax code makes these distinctions and political reformers could use them.

Beyond this discussion’s fine print is a larger point: the effort by progressive attorneys to curb excessive corporate constitutional power is not being dismissed, it is being taken seriously, parsed by a growing array of legal experts and gaining credibility. This wasn’t happening six months ago—and certainly not in public. Proponents of ending corporate personhood like Clements said there was no reason there could not be more than one amendment, citing the Progressive Movement’s precedent a century ago.

“The Progressive Era, which was again, Republicans and Democrats coming together—Teddy Roosevelt, Woodrow Wilson, people in both parties—they did four amendments in 10 years, four constitutional amendments. We don’t have to do just one,” he said. “And remember they also did all that other statutory reforms; antitrust laws, the earliest environmental laws, worker safety laws. They knew they were renewing American democracy for a new century to fulfill that visons of government for, of and by the people. That’s where we are.”

A ‘Do Everything’ Strategy—Starting Now

No one at the 28th Amendment conference was under any illusion that a new Constitution will arrive overnight. Indeed, Harvard’s Lessig doesn’t believe any amendment will go anywhere unless a “cross-partisan” majority supports it—which is why he emphasizes anti-corruption writings by America’s founders, such as James Madison’s Federalist 52, which is popular in Tea Party circles. Lessig believes the best way to move past today’s fractious political landscape is to push states to demand Congress convene an Article Five convention, as it depends on cultivating grassroots support, a development that in itself could change political discourse from today’s “business model” where partisans villify opponents.

“We have to learn to speak so the other side can hear,” he said.

(There are two paths to amending the U.S. Constitution. The first requires Congress to draft and support a proposal by a two-thirds vote, or draft an amendment at a convention called by two-thirds of the states. That proposal must be ratified by three-quarters of state Legislatures or by three-fourths of state ratifying conventions.)