By David Gans, Director of Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountabiilty Center
Today, following a spirited Senate Judiciary Committee hearing, in which Senators on both sides of the aisle debated the Roberts' Court recent decision in Citizens United v. FEC, the Constitutional Accountability Center ("CAC") released a new comprehensive report on corporations and the text and history of the Constitution. The report, entitled A Capitalist Joker: The Strange Origins, Disturbing Past, and Uncertain Future of Corporate Personhood in American Law, examines the text and history of the Constitution and the Supreme Court's treatment of corporations from the founding-era through the Court's recent decision in Citizens United. The report, which is available here, demonstrates that the Court's opinion in Citizens United is completely divorced from the text and history of the Constitution. In upcoming months, CAC and ACS will jointly sponsor a series of events designed to bring attention to the decision's departure from constitutional first principles.
As detailed in CAC President Doug Kendall's testimony this morning, the Constitution's text reflects a fundamental difference between corporations and "We the People" identified in the Constitution's preamble. Corporations do not vote, they cannot run for office, and they are not endowed by the Creator with inalienable rights. "We the People" create corporations and we provide them with special privileges that carry with them restrictions that do not apply to living persons.
While the Supreme Court has long recognized that corporations may assert certain constitutional rights, corporations have never been accorded all the rights that individuals have, and have never been considered part of the political community or given rights of political participation. The Court under Chief Justice John Marshall, and many times since, has emphasized that because corporations are artificial entities that receive special privileges such as perpetual life and limited liability, they are subject to greater regulation by the state. Only once before, during the darkest days of the now-repudiated Lochner era, from 1897 to 1937, has the Supreme Court seriously entertained the idea that corporations are entitled to the same constitutional rights enjoyed by "We the People." And even in the Lochner era, equal rights for corporations never extended to the political process.
Citizens United is the culmination of a forty-year struggle by conservatives to reinvigorate the Lochner-era idea that corporations deserve equal constitutional rights. In 1971, Lewis Powell -- a Virginia corporate lawyer who would soon be nominated to the Supreme Court -- advised corporations to look to the courts for relief, noting that that "the judiciary may be the most important instrument for social, economic and political change." Powell's strategy started to come to fruition just seven years later in First National Bank of Boston v. Bellotti, when Powell authored a 5-4 ruling for the Court holding that limits on a corporation's ability to oppose a ballot initiative violated the First Amendment. The Citizens United ruling dramatically expands Powell's ruling, holding that corporations have the same constitutional rights to spend money on elections as living breathing persons, giving corporations a constitutional right to participate in elections for elective office for the first time in American history.
[Image via monkeyc.net.]
My Vote Not For Sale
Please get as many as possible to publicly make this pledge:
"I will not vote for any candidate or cause accepting more than $X (you choose the amount) in support from any one source."
The U.S. Supreme Court in Citizens United v. FEC recently held that no corporation, union, or other entity can be limited in its political spending. Many saw this coming. And it's sensible and practical. Simply put, trying to limit political spending is nearly impossible. Imagine that Company Z spends millions trying to defeat Joe. Should that amount be attributed to Joe's opponent? What if Joe has two or more opponents?
Yet the implications are troubling. Has this effectively made bribery a constitutional right? Admittedly, money is already deep into our politics. Lobbyists spend billions. But has this decision reduced us to the outright buying and selling of offices?
But imagine if millions of voters made the "Vote Not For Sale" pledge. Then corporations and unions would realize that contributions and advertising are just a waste of money.
Of course, few things are as simple as they look. What if Union B spends millions in support of Jane, and both the union and Jane deny any cooperation or collusion? Do you believe them? Can you still vote for Jane? What if Company Z deviously spends millions to support Joe's opponents precisely to poison them and chase the voters into Joe's camp? Can you still vote for Joe?
In cases like this, you'll just have to slap on your wise voter cap and make the right choice.
Stemming foreign money is another good reason to make this pledge. There's no reason the Supreme Court's rationale would not allow foreign money to buy an election. After all, what is a "foreign" corporation? Where it's licensed? Where it does business? The nationality of its investors? Don't most large public corporations have investors from all over the world? The more who make this pledge, the more big donors see the money as wasted!
-Kevin Hicks, Stockton, CA
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