PI Original Matthew Blake Friday September 21st, 2012, 4:13pm

Corporate Personhood And The Move To Overturn Citizens United (VIDEO)

The 2010 U.S. Supreme Court case Citizens United v. the Federal Election Commission did not just increase money in politics. It galvanized a fierce backlash to federal campaign finance laws that, thanks to the ruling, acknowledged “corporate personhood” – the idea that corporations have the same First Amendment, and campaign contribution, rights as individuals.

The 2010 U.S. Supreme Court case Citizens United v. the Federal Election Commission did not just increase money in politics. It galvanized a fierce backlash to federal campaign finance laws that, thanks to the ruling, acknowledged “corporate personhood” – the idea that corporations have the same First Amendment, and campaign contribution, rights as individuals.

A growing movement says that the Supreme Court as currently configured will strike down any law that regulates corporate money in political campaigns. The best solution, these critics say, is a constitutional amendment that would declare corporations do not have the same inherent First Amendment rights as individuals.

Veterans of the campaign finance reform wars, though, are skeptical. “I am generally sympathetic to any effort that deals with money in politics,” says Paul S. Ryan, senior legal counsel at the Campaign Legal Center, a Washington, D.C. public interest group.  “But some of these amendment proposals may have been knee jerk reactions to Citizens United.”

The Move to Amend

David Cobb (pictured) has worn many hats in his life, including Gulf Coast shrimp boat crewman and private attorney in Houston. Since working as the Texas campaign manager for Ralph Nader’s 2000 run for president, Cobb threw himself into politics, including his own 2004 presidential bid as the Green Party’s nominee.

Following Citizens United, Cobb turned his attention to the nascent Move to Amend national campaign, headquartered in Eureka, California. With the slogan “End Corporate Rule. Legalize Democracy”, Move to Amend wants a constitutional amendment reversing the two most contentious aspects of the 5-4 Citizens United decision.

The first is that money equals speech when it comes to helping a political campaign. The Move To Amend's proposed 28th amendment reads, “The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.”

The second aspect is corporate personhood.

In his majority opinion, Justice Anthony Kennedy noted that since the 19th Century, the Supreme Court has found that corporations often have the same constitutional rights as people.

However, Kennedy joined the four reliably conservative justices to push this idea further than it has ever gone before. The court held that spending limits applying only to corporations are discriminatory and unconstitutional.

Kennedy’s majority opinion effectively increased the clout of Super Political Action Committees (PACs) for which corporations and individuals can spend unlimited amounts of money so long as there is no evidence of direct coordination with political campaigns.  Many Super PACs such as “Restore our Future” for Republican presidential nominee Mitt Romney and “Priorities USA” for President Barack Obama unmistakably are linked to one political candidate, even if there is no hard legal evidence of direct coordination.

Another consequence is the proliferation of 501(c)(4) nonprofit “social welfare” agencies. Corporations and individuals have exploited out of date tax code bylaws to not just donate unlimited sums to these nonprofits, but also avoid public disclosure of their contributions.

“Forget super PACs, their much-hyped cousins, which can take unlimited contributions, but must name their donors,” writes Kim Barker of ProPublica in an August 19 article. “More money is spent on TV advertising in the presidential race by social welfare nonprofits.”

For Cobb and Move to Amend there is nothing of more pressing political importance than ending Super PACSs, social welfare nonprofits and the whole influx of big, corporate money in politics.

“The rights protected by the Constitution of the United State are the rights of natural persons only,” states the Move to Amend proposed amendment. The rights of corporations “shall not be construed to be inherent or inalienable.”

Cobb took this message of ending corporate personhood rights to a Unitarian church in Oak Park last month as part of a Moved to Amend Midwest “barnstorming tour.”

“Large transnational corporations are ruling us as surely as masters once ruled slaves as surely as kings once ruled subjects,” Cobb proclaimed. He then asked the gathering of about two-dozen, mainly elderly meeting attendees, “Who here believes that we the people in the U.S. rule?” After not a person responded ‘yes’, Cobb declared “No one. That, my friends, is a problem, but in another way that is a good thing. We know that there is now a ruling elite in the country.”

Here is video of some of Cobb's presentation in Oak Park:

The Green Party and many campaign finance reform advocates have pushed the idea of a nefarious, ruling corporate elite long before Citizens United. But these ideas are becoming part of the political mainstream.

One starting point is the ferocious Citizens United dissent by the now retired Justice John Paul Stevens. “There is not a scintilla of evidence to support the notion” that the First Amendment does not distinguish between corporations and people, Stevens wrote.

A growing number of Democratic politicians and liberal-leaning municipalities have since called to overturn Citizens United and end corporate personhood. In December, the Los Angeles City Council passed a resolution in support of federal efforts to end corporate personhood.

And on July 25, the Chicago City Council passed a resolution that will place a referendum on the November ballot where voters will decide whether there should be a constitutional amendment to overturn Citizens United. The city council action came one day after U.S. Sen. Dick Durbin (D-Illinois), the number two ranking U.S. Senate Democrat, offered his support for a constitutional amendment.

Also, nine other Illinois townships put similar amendment referendums on their November ballots.

Steve Alesch, a software engineer in Warrenville, was part of an effort put such an amendment on the ballot in his towb. Alesch says that he has been involved in campaign finance reform advocacy since 2006 and believes that Citizens United “made people significantly more aware about money in politics.”

Ald. Joe Moore (49th) sponsored the Chicago referendum and says that such local initiatives are a “grassroots level effort to pressure the Illinois delegation to amend the constitution.” Moore notes that besides Durbin, many Illinois Democratic Congressmen support the amendment, but acknowledges he has not talked to Republicans. “We are working on the base right now,” Moore says.

Alternatives To Amending

It is hard to find a self-identified progressive or government watchdog that does not think the Citizens United decision was wrong in its use of “corporate personhood.”

“There are profoundly important differences between corporations and natural persons,” Ryan of the Campaign Legal Center says. For example, he points out that, “Corporations can be created or dissolved overnight.”

“If you or I break federal law, we’ll have to face penalties,” Ryan says. “But a corporation can dissolve and there could be no penalties because there will be no one to penalize.”

But Ryan and other campaign finance reform experts and advocates such as David Morrison, director of the Illinois Campaign for Political Reform, say that a constitutional amendment is the wrong strategy. Others like Democracy 21’s Fred Wertheimer, who is seen as the godfather of campaign finance reform, have remained agnostic on the amendment plan and have focused their advocacy elsewhere.

One issue with the amendment is practical difficulty. Any amendment requires two-thirds support from Congress and ratification from 38 states. Moore and other backers are rallying the base now, but they would need far greater support for the amendment to be anything other than a symbolic gesture.

Also, the amendment might be the wrong symbolic gesture. Ryan notes that most amendments are about affirming rights:  the First Amendment gives freedom of expression rights, the 19th gives women the right to vote, and so on. The only amendment that was really about taking rights away was the 18th, establishing the prohibition of alcohol – and that was the only amendment to be subsequently repealed.

The proposed 28th amendment would be about taking rights away. Cobb and other Move to Amend proponents say this is not a problem because corporate personhood is a “legal fiction” to begin with. But corporate personhood can also be a legal fiction to benign and even admirable ends.

In an April American Prospect article, University of Baltimore law professor Garrett Epps notes that corporate personhood prevented the censorship of the New York Times in two separate Supreme Court cases. Perhaps mindful of this history, Move to Amend includes the caveat, “Nothing contained in this amendment shall be construed to abridge the freedom of the press.” But it would then be up to the same vilified U.S. Supreme Court to determine what corporations get the proverbial press access.

“I think there are a lot of things that we do short of changing our constitution,” Morrison of the Illinois Campaign for Political Reform says. For starters, this would include forcing social welfare non-profits to disclose their donors as the current U.S. Supreme Court has said nothing against disclosure laws. Another, bigger step supported by Morrison and Ryan would be to institute a harder legal threshold for what coordination means so that Super PAC’s are truly independent of political campaigns.

Move to Amend advocates retort that any campaign finance reform law will be voided by the high court. “The Supreme Court will strike anything down,” Alesh of Warrenville says. “We realize an amendment is difficult, but we do not have any other option.”

Cobb, meanwhile, sees the amendment as part of a larger political calling. “The American revolutionaries were about calling for an end to monarchy – not just a more socially responsible king,” he said in Oak Park. “So maybe we shouldn’t just be asking for more socially responsible corporations.” Even amendment skeptics might be energized that, after Citizens United, someone now compares campaign finance reform to a revolutionary act.


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