Free Speech For People

  • January 26, 2012
    Corporations Are Not People
    Why They Have More Rights Than You Do and What You Can Do About It
    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?

  • January 3, 2012

    by Jeremy Leaming

    The Montana Supreme Court recently upheld the state’s century-old prohibition against corporate financing of elections, providing a striking rebuke to the U.S. Supreme Court’s 2010 opinion in Citizens United v. FEC.

    In Citizens United the high court ruled 5-4 that corporations have First Amendment rights equivalent to persons, and therefore can funnel their expenditures into politics. Citizens United overruled long time federal regulations of corporate campaign financing.

    Montana’s high court, with two members dissenting in Western Tradition Partnership, Inc. v. State of Montana, said the Citizens United opinion does not nullify the state’s Corrupt Practices Act, enacted in 1912. The Montana campaign finance regulation was invalidated by a lower court state judge, citing Citizens United.

    Writing for the Montana Supreme Court majority, Chief Justice Mike McGrath said the state had never lost a “compelling interest to enact” the law. “At the time,” McGrath wrote, “the State of Montana and its government were operating under a mere shell of legal authority, and the real social and political power was wielded by powerful corporate managers to further their own business interests.”

    The chief justice continued that today concerns of “corporate influence, sparse population, dependence upon agriculture and extractive resource development, location as a transportation corridor, and low campaign costs make Montana especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government. Clearly, Montana has unique and compelling interests to protect through preservation of this statute.”

    Jeff Clements, general counsel of Free Speech for People, a public interest group devoted to overturning Citizens United, lauded the Montana high court’s opinion, writing, “Corporations are not people. The Framers understood that. We are proud to stand today with the State of Montana to vindicate the Framers’ intent and to defend our democracy.”

  • November 9, 2011

    by Jeremy Leaming

    Right-wing policymakers triumphed impressively last year taking control of many statehouses from coast to coast. Many of those lawmakers were ushered into office backed by Tea Party fervor, and lots of money from the likes of Charles and David Koch, the billionaire brothers, who head Koch Industries and espouse efforts to radically constrain government.

    A year after their sweeping victories, however, some of their most outrageous policies were shelved by large numbers of voters last night.

    The frontal assault on public sector workers in Ohio, as noted by the Plain Dealer, was squashed by voters, 61 percent to 39 percent. In a guest post for ACSblog, Ohio State University law school professor Dan Tokaji noted that SB 5, which gutted collective bargaining rights of public workers, was a “center of Governor Kasich’s first year in office.” Tokaji said the defeat of the anti-workers’ rights law was not only a major setback to the Republican governor, but also has ramifications outside the Buckeye state. If the law would have survived, Tokaji said it would have dealt a “crippling blow to organized labor, drastically curtailing its political influence.”

    Mississippi provided a mixed bag, defeating a radical anti-abortion measure, but supporting a stringent new voter registration law. As noted by The New York Times, perhaps one of the night’s “biggest surprises” was the state’s rejection of a proposed constitutional amendment that would grant legal rights to embryos, effectively outlawing abortion and other forms of birth control in the state. That policy was advocated by a Religious Right group called Personhood USA, which says it is pushing similar measures all over the country, and doing so, in part, “to glorify Jesus Christ in a way that creates a culture of life so that all innocent human lives are protected by love and by law.”

    Following defeat of the measure, Keith Ashley in a blog post for Personhood USA said the group understands the difficulty of “changing a culture,” and that it vows “to continue on this path towards affirming the basic dignity and human rights of all people ….”  

    Nancy Northup, president and CEO of the Center of Reproductive Rights, hailed the defeat of the Personhood Amendment, saying in a press statement, “Outlawing medical services commonly used and relied upon by Americans in their personal lives runs completely counter to the U.S. Constitution, not to mention some of our most deeply held American political traditions and values.”

  • April 29, 2011

    In what is being billed as the first direct challenge to the Supreme Court’s 2010 Citizens United v. FEC opinion, a coalition of groups has come together to help restore Montana’s century-old law against corporate politicking.

    Last fall, a Montana judge invalidated the state’s 1912 Corrupt Practices Act, which bans corporations from spending on elections, citing the high court’s Citizens United ruling. Citizens United struck down decades of precedent upholding campaign finance regulations, finding that corporations have free speech rights to funnel corporate dollars into campaign coffers. As noted in this blog post, the Koch brothers, head of Koch industries and prime funders of Tea Party activities, are taking advantage of Citizens United to push their employees to vote for far-right candidates.

    The Montana Attorney General has appealed the decision to the state’s highest court, and today Free Speech for People, a national campaign to overturn Citizens United, along with national and Montana business networks, lodged an amicus brief urging the restoration of the Montana campaign finance law.

    The friend-of-the-court brief in Western Tradition Partnership, Inc. v. State of Montana blasts the Citizens Union opinion as “an extreme extension of an erroneous corporate rights doctrine that has eroded the First Amendment and the Constitution for the past 30 years.” The brief adds that Citizens United “is contrary not only to our republic principles of government, but also to American principles of free and fair commerce among free people and the States.”

    Jeff Clements, co-founder and general counsel of Free Speech for People and author of the amicus brief, said in a press statement, “Corporations are not people. The Framers understood that. The First Amendment and the Constitution is for the people. We are proud to stand today with the State of Montana to vindicate the Framers’ intent and to defend our democracy.”

    See the coalition’s amicus brief here.

    Clements is also author of the ACS Issue Brief, “Beyond Citizens United v. FEC: Re-Examining Corporate Rights.” Clements also talked with ACSblog about Free Speech for People’s effort to advance a constitutional amendment to overturn Citizens United. Watch his interview here.

  • January 21, 2011
    Guest Post

    By Jeffrey D. Clements, Principal, Clements Law Office, LLC. Mr. Clements filed an amicus brief in the Citizens United case on behalf of several democracy advocacy organizations, and serves as general counsel of Free Speech for People. He is also author of the ACS Issue Brief, "Beyond Citizens United v. FEC: Re-Examining Corporate Rights." This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC.
    A year ago, on the day that the Supreme Court decided Citizens United v. FEC, I wrote here at ACSblog that the Court's failure to recognize the difference between corporations and people, the difference between a free speech case and a corporate regulations case, squarely frames the question of whether our American Republic will remain a government of the people. I said that it is "time to support and work for a 28th Amendment to correct the Court" and to "remove unwarranted judicial controls on our lawmakers' oversight of corporate power." From the perspective of twelve months passing, was this view of Citizens United, shared by many, unduly alarmist? Was the call for a Constitutional Amendment melodramatic and unnecessary? And, as some of my friends ask from time to time, "how's that campaign to save the nation going anyway?"

    I have bad news and good news. The bad news is that those who view the Court's decision as a "strike at the heart of democracy," in the words of President Obama, are correct. The pay-to-play crony capitalism vision of America that underlies Citizens United, where citizens in a republic become consumers or spectators in corporate "marketplace" elections, and the people's representatives dance only to corporate tunes, shows every sign of coming to ultimate fruition. The alternative vision, one of a vibrant, innovative, responsible and confident republic of free people and free markets, where the people decide the appropriate place of corporations in our society, seems to fade into history.

    Last November, we had the first post-Citizens United election, the most expensive federal mid-term election in history. Four billion dollars was spent, and at least hundreds of millions of dollars in corporate money passed through front groups with innocuous sounding names to define who was good, who was bad, and what issues mattered. Sixty percent of eligible voters did not bother to vote. And you can be sure that the threat of the billions of dollars of corporate money that is now available for electioneering and independent expenditure campaigns in 2012 is being felt in the halls of Congress, our state houses, town halls, and, perhaps most sadly, in our halls of justice where judiciaries are subject to retention votes or other elections.