Free Speech For People

  • September 10, 2012

    by Jeremy Leaming

    The effort to amend the Constitution to counter the ever-growing corporate influence on lawmakers and elections is a noble one, but there is a more useful and far-reaching way to correct the matter – make corporations more democratic. That’s law Professor Kent Greenfield’s take in a new article for Democracy.

    It’s an extensive piece that helps explain why the Supreme Court’s 2010 opinion in Citizens United v. FEC is quickly producing a corrosive effect on elections from coast to coast, but also why seeking a constitutional amendment is a wobbly strategy.

    Not long after the high court in Citizens United invalidated some major campaign finance regulation and found that corporations have nearly unfettered rights to funnel their expenditures into elections, an effort was launched to amend the Constitution.

    John Bonifaz and Jeffrey Clements co-founded Free Speech For People a group devoted to a constitution amendment overturning Citizens United.

    A recent debate with Bonifaz helped spur Greenfield to write the Democracy piece. Greenfield, who teaches business and constitutional law at Boston College, says that too many progressives have decided that constitutional law solution is needed to trump the Citizens United. Instead, Greenfield argues that it is corporations and how we understand them that need to change.

    “While the constitutional effort is defensive and palliative, a campaign to redesign the corporation itself would be affirmative and transformative,” Greenfield writes. “To cure Citizens United, we don’t have to amend the Constitution – we need to rethink corporations.”

    The nation’s laws governing corporations are weak and shareholders, despite widespread belief, do not have much to do with running corporations. (He notes for instance that shareholders are “not ‘owners’ in any meaningful way. If you own a share of General Motors, you will still be tossed out of its headquarters as a trespasser if you try to enter without an appointment.”) In Citizens United the Supreme Court majority, Greenfield notes, saw corporations as “associations of citizens,” but in reality America’s corporations are largely representative of the wealthy few, the 1 percent.

  • July 31, 2012

    by Clark Taylor

    In Citizens United v. FEC, the Supreme Court paved the way for unprecedented amounts of outside campaign spending by powerful interests. As a result, billionaires like Sheldon Adelson and the Koch brothers have pledged to spend up to $400 million in an all-out effort to ensure that the voices of the richest few are heard the loudest.

    The numbers support the trend. Richard L. Hasen, an election law expert at University of California, Irvine, says outside campaign spending through March 8 amounts to more than $88 million for federal elections. This represents a significant contrast to the $37.5 million in 2004 and $14.2 million in 2000. The growth is even starker in mid-term years as the same spending jumped from $1.8 million in 2006 to $15.8 million in 2010.

    Perhaps most disconcerting, this regime has led to a situation in which the superrich can spend more and more on elections without any disclosure. Sen. Bernie Sanders (I-Vt.), in testimony before a Senate committee, claimed that there were at least 23 families worth over $1 billion who have given more than $250,000 in campaign contributions this cycle. Just 196 Americans have given more than 80 percent of the total money donated to super PACs.

    Groups and individuals have proposed efforts to help blunt the or counter powerful interests seeking to sway elections. Professor Lawrence Lessig has advocated for a series of citizen conventions to craft a constitutional amendment. Sen. Dick Durbin (D-Ill.) has called for a constitutional amendment. The group Free Speech for People also proposes a constitutional amendment. Jeff Clements, co-founder and president of the group, stated in written testimony to the Senate, that a constitutional amendment was needed to restore congressional power over campaign finance regulation. Perhaps the closest Congress has come to reform was the DISCLOSE ACT, which would have required that independent groups disclose those donors who give more than $10,000. Though the bill received support from a majority of the Senate, Republicans blocked the measure using a procedural move.

  • May 18, 2012

    by Jeremy Leaming

    The Montana Supreme Court late last year pushed back against the U.S. Supreme Court’s highly unpopular and wobbly reasoned opinion in Citizens United v. FEC, when it upheld the state’s longtime regulation of corporate financing of elections.

    Not surprisingly a cabal of corporations quickly asked the high court to overturn the Montana Supreme Court’s ruling in Western Tradition Partnership, Inc. v. State of Montana, which concluded the Roberts Court’s Citizens United opinion was not going to stand in the state’s way of ensuring that corporations do not overtake its elections.

    Writing for the majority upholding the Montana Corrupt Practices Act, Chief Justice Mike McGrath stated “when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because shadowy backers of WTP [Western Tradition Partnership] seek to promote their interests? Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines? We think not.”

    Even the dissenting justice in the Montana case blasted the Supreme Court’s “corporate personhood” reasoning of Citizens United, writing, “Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people – human beings – to share fundamental, natural rights with soulless creations of government.” 

    Then earlier this week came Jeffrey Toobin’s extensive piece for The New Yorker revealing the machinations of the Roberts Court to tear down the tradition of campaign finance regulation, and in the process provide yet another victory for corporate America. As Toobin writes Chief Justice John Roberts craftily took a case with a narrow question before the justices and expanded it allowing the Court’s right-wing bloc to overturn a long tradition of regulating corporate financing of campaigns. The outcome in Citizens United concluded that corporate entities have First Amendment rights to spend whatever they want on electioneering, and in the process ushered in the era of the “super PAC.”

  • May 7, 2012

    by Jeremy Leaming

    In light of the hundreds of millions that “super PACs” are funneling into the forthcoming general election, as well as the waves of dollars that swamped the 2010 elections, it’s time for the U.S. Supreme Court to rethink its Citizens United v. FEC opinion.

    At least that is part of the argument that a coalition, including two national business networks and a Montana corporation, makes in a friend-of-the-court brief recently lodged with the U.S. Supreme Court.

    The vehicle for revisiting the controversial 2010 opinion, in which the Court’s right-wing banded together to push aside decades of precedent favoring the regulation of corporate financing of elections is the Montana Supreme Court’s ruling late last year upholding the state’s 1912 Corrupt Practices Act, and in the process providing a striking rebuke to the high court’s holding in Citizens United.

    Chief Justice Mike McGarth writing for the majority in Western Tradition Partnership, Inc. v. State of Montana said the high court’s Citizens United opinion did not preclude Montana from enforcing the Corrupt Practices Act. Today, the chief justice said, the state still had serious concerns about “corporate influence, sparse population, dependence upon agriculture and extractive resource development, location as a transportation corridor, and low campaign costs to make Montana especially vulnerable to continued efforts to corporate control to the detriment of democracy and the republican form of government.”

    One of the dissenters in the Montana case, Justice James C. Nelson called the concept of corporate personhood, integral to the Citizens United, “offensive.” Nelson continued, “Corporations are artificial creatures of law. As such, they should enjoy only those powers – not constitutional rights, but legislatively-conferred powers – that are concomitant with their legitimate function, that being limited-liability investment vehicles for business.”

    The 28-page brief shows in striking detail just how off the Supreme Court’s majority was when it declared in Citizens United “that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

    The brief’s author, Ben Clements, a board member of Free Speech for People, also a part of the coalition, in a press statement, said, “By granting corporations right to spend unlimited corporate funds on elections, at the expense of the people’s right to prevent the resulting corruption and distortion of our electoral process, the Citizens United ruling undermines First Amendment values and integrity of our republican democracy itself.”

  • January 26, 2012
    BookTalk
    Corporations Are Not People
    Why They Have More Rights Than You Do and What You Can Do About It
    By: 
    Jeffrey D. Clements

    By Jeffrey D. Clements, the co-founder and general counsel of Free Speech for People and founder of Clements Law Office, LLC. Clements is author of the new book Corporations Are Not People, which explores the disastrous impact of the Citizens United opinion on democracy and proposes a constitutional amendment to restore government to the people.


    As the nation increasingly embraces the constitutional amendment solution to Citizens United v. FEC, a new proposition regarding so-called “corporate personhood” is emerging. It’s a proposition, which the notorious Citizens United decision actually had nothing to do with.

    Last week, for example, my friend Kent Greenfield cast a skeptical eye, in an op-ed for The Washington Post, on the “anti-corporate activists” who support a constitutional amendment to reverse Citizens United. (My own view competed the next day in a Boston Globe op-edwith Congressman Jim McGovern, the lead sponsor of the People’s Rights Amendment.)

    As an initial matter, no one should assume that the 79 percent of Americans who favor a constitutional amendment to reverse Citizens United are “anti-corporate,” whatever that means. After all, 1,000 business leaders have called for a constitutional Amendment, as have legal scholars, lawyers, former state attorneys general, serving attorneys generals, dozens of cities and town representative bodies and millions of Americans.

    The argument that corporations in fact are “people” under the Constitution, or at least that we ought to continue the tacit amendment of the Constitution that pretends that they are, at least has the virtue of frankness. Less credible, is the argument that Citizens United and the larger “corporate speech” theory under the First Amendment is not really about corporate rights at all, but merely about protecting associational rights of people.

    Professor Greenfield argues that the Supreme Court in Citizens United got “the result” wrong but at least it asked “the right question.”  No, the Court got the result wrong because the Court asked the wrong question. The actual question before the Court in Citizens United should have been the question posed by a challenge to the corporate regulation component of the federal Bipartisan Campaign Reform Act (BCRA) – Can Congress create different election spending rules for human beings than for corporations?