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Wednesday, Nov. 30, 2011

A Constitutional Amendment to Preserve Democracy?

Activists strike at corporations' influence on elections

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Is a constitutional amendment the only way to prevent our elections from being hijacked by deep-pocketed corporations?

That's the strategy taken by Move to Amend (MTA), a national grassroots group that seeks to remove constitutional rights the U.S. Supreme Court has granted to corporations. These so-called “personhood” rights for corporations are not found in the U.S. Constitution, but over the years the courts have given corporations some of the same constitutional protections given to human beings.

In 2010's Citizens United decision, the John Roberts-led court drew upon corporate personhood to allow corporations to spend freely in political campaigns. Since the First Amendment allows individuals to speak and spend freely in campaigns, it also allows corporations to do the same, the court decided.

In that vein, Republican presidential candidate Mitt Romney, a multimillionaire former investment banker, declared on the campaign trail, “Corporations are people, my friend.”

But unlike Romney, MTA supporters say that only human beings are people who have constitutional rights. Corporations are created by the state and don't have inalienable rights, like the right to free speech. And they say that the Founding Fathers never intended to give corporations these rights, which have allowed corporations to use the court system to serve their needs in business and, since the Citizens United decision, in the political arena.

“Corporate personhood is a court-created doctrine that allows corporate lawyers to overturn democratically enacted laws on the basis that those laws are violating corporations' constitutional rights,” said attorney David Cobb, an MTA spokesman.

Corporate Money as Corrupting Influence

Cobb said corporate personhood has allowed corporations to beat back laws intended to protect workers and the environment and amass a disproportionate share of wealth.

“These huge transnational corporations have become the most dominant institution in the world, and they are responsible for destroying the planet and creating an unjust, unsustainable world in its wake,” Cobb said.

But, like Romney, Richard Esenberg, adjunct law professor at Marquette University and head of the Wisconsin Institute for Law and Liberty, said that corporations are made up of people and that individuals shouldn't lose their rights because they've banded together as a corporation.

“I don't think it matters if the speaker is a person or a corporation,” Esenberg said.

Madison attorney and activist Ed Garvey called corporate personhood “the silliest idea” because corporations are created by the Legislature for the purpose of generating a profit. Garvey said the doctrine rolls back corporate bans on campaigning first championed by Wisconsin Progressives in the 1800s. Back then, Robert La Follette and his allies recognized that the resources of huge corporations would tilt the political system in their favor.

“Now, as corporations have moved to take over the country in every respect, it becomes convenient for them to say we'll create a corporation that takes on the attributes of personhood, so that they will be exempt from certain regulations of corporations,” Garvey said.

Marquette Law associate professor Edward Fallone said that over the years the courts have whittled down the Progressives' definition of “corruption” to mean bribery.

“In Citizens United, you now had the declaration that unless Congress is passing a law designed to reduce bribery, then you can't regulate campaign contributions by corporations,” Fallone said.

Referendum in West Allis in April

MTA has already won victories in Madison and Dane County, as well as other cities around the country, and now the movement is headed to West Allis.

MTA volunteers collected enough signatures to place an MTA referendum on the ballot in West Allis next April. Voters will weigh in on an advisory referendum stating that only human beings, not corporations, are entitled to constitutional rights and that money does not equal speech.

Stephen Sweet, who collected signatures in West Allis, said the support for the MTA movement and the Occupy Wall Street protesters shows that the public is fed up with the government's inability to rein in corporate greed.

“This is the core issue of everything that's wrong in our country nowadays,” Sweet said. “Politicians are listening to the money. If we got some sort of financing where it was a level field for everybody, I think everybody would come out ahead.”

Mary Laan, one of the local MTA coordinators, said that the group is debating whether to put an advisory referendum on the ballot in the city of Milwaukee or Milwaukee County next year.

In Madison and Dane County, voters overwhelmingly approved MTA resolutions this past April.

In Footsteps of Hallowed Activists

MTA is hoping to use these local advisory referendums to demonstrate the popular support for amending the Constitution to abolish corporate personhood. But it will be a long, tough fight.

First, the amendment must be officially proposed, either by the vote of two-thirds of both houses of Congress or by two-thirds of the state Legislatures asking Congress to call a national convention.

To ratify a new amendment, three-fourths of the state legislatures must approve it or ratifying conventions in three-fourths of the states must approve it.

MTA's Cobb estimated that it would take at least a decade to add a ban on corporate personhood to the Constitution. But he said that MTA was following in the footsteps of suffragettes, abolitionists and civil rights activists to amend the Constitution to affirm the rights of women and African Americans and expand democracy.

“We the people govern ourselves,” Cobb said. “We have individual rights that cannot be violated. And we are participants in a democratic republic. Corporate personhood was created by the courts in a perverse misinterpretation of that governing document [the Constitution]. So we have to correct the courts.”

Marquette's Fallone said a constitutional amendment might be the only way to provide the groundwork for campaign finance laws that would survive a court challenge. Since Citizens United drew on a First Amendment argument, any limits on corporate campaign spending would likely be declared unconstitutional—at least with the current makeup of the Supreme Court.

Activists can't turn to corporate law, either, since managers are free to make business decisions on behalf of a corporation. Stockholders can attempt to elect a different board of directors, but that, presumably, would be long after managers had made a political donation to a candidate. And workers don't have any say in an employer's political activities.

“Corporations advance the interests of management,” Fallone said. “Not the interests of its employees or its shareholders.”

For more about MTA, go to movetoamend.org.

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