The Campaign to Undo "Corporate Personhood"

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Thu May 01, 2014 13:52:46PM | Categories: Campaign Finance Reform & Supreme Court Cases
On November 3, 1948, the Chicago Daily Tribune published a banner headline, "DEWEY DEFEATS TRUMAN".The underlying lead paragraph stated:

"Dewey and Warren won a sweeping victory in the presidential election yesterday. The early returns showed the Republican ticket leading Truman and Barkley pretty consistently in the western and southern states" and added that "indications were that the complete returns would disclose that Dewey won the presidency by an overwhelming majority of the electoral vote".

Of course, as we all know, that headline and accompanying story was a big mistake. But thinking hypothetically, let's suppose the Chief Justice of the Supreme Court took that erroneous headline as fact and tried to swear in Dewey as President on January 20, 1949. There would have been outrage, and it simply would never have happened...a stupid thought really.

However, another seemingly stupid "mistake" with enormous consequences occurred in 1886 when Supreme Court Chief Justice Morrison Remick Waite made a statement before rendering of the court's opinion in Santa Clara County v. Southern Pacific Railroad Company. That statement was an opinion to the effect that the Fourteenth Amendment to the Constitution applied to the corporate litigants in the case...essentially that corporations were people. It was a false statement as the court records show that corporate personhood was not seriously argued in the case, and certainly no decision was made as such. Nevertheless, the court reporter gave Justice Waite's statement prominence as he wrote it up in the headnote, "The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteen Amendment to the Constitution of the United States..."

That "mistake", if it was indeed a mistake, was compounded two years later when that absolutely false headnote was cited as legal precedent in claiming "corporate personhood" in the arguments of two other cases brought before the court. There was no challenge by the other justices and no public outrage, no headline in the Chicago Tribune, not even a back page mention...corporations just quietly became people without much notice. In the ensuing 128 years a mountain of legal cases have all been argued and decided on the basis of that corporate personhood wrongly established in 1886...leading up to this statement made in 2011:

"Corporations are people, my friend ... of course they are. Everything corporations earn ultimately goes to the people. Where do you think it goes? Whose pockets? Whose pockets? People's pockets. Human beings, my friend." —Mitt Romney responding to a heckler at the Iowa State Fair, August 2011.

I have written about the 1886 case in my other article on the Supreme Court's long history of practicing "judicial activism", and what is surprising is that in the ensuing years until Thom Hartmann published his book, Unequal Protection, very little was written about exactly how corporate personhood really came about. Oh, Justice Hugo Black made a protest of sorts a half century later when he wrote this as part of an opinion:

“I do not believe the word ‘person’ in the 14th Amendment includes corporations.” - Justice Hugo Black, 1938

Justice Black may just as well have been speaking softly, alone in the forest because no trees came crashing down as a result of his statement.

The 1888 case that enshrined "corporate personhood" might have quietly stood on the books as established case law had not Justice Roberts and his four fellow conservative Supreme Court justices Scalia, Alito, Thomas and Kennedy overreached by gutting campaign finance laws with a series of 5-4 decisions, the most notorious being Citizens United versus the SEC in 2010. Passions on the left were aroused.

The last straw in the court's quest to repeal campaign finance laws occurred just a month ago (April 2, 2014) with the court's ruling in McCutcheon vs the Federal Exchange Commission. Justice Breyer in dissent in this case pretty well sums up my feelings:

“Taken together with Citizens United v. Federal Election Commission, 558 U. S. 310 (2010), today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”

The several court decisions that unjustly favor the rich and corporations in campaign financing and protection from disclosure (dark money) have prompted citizen activists and some Congressman to embark on a campaign to write a 28th Amendment to the Constitution to undo the court's mistake of 1886 by reinstating the authority of legislators to enact common sense campaign finance legislation, and especially to make it so "corporations are not people my friend". It is an enormous challenge that may take a long time, but the grassroots activists are moving ahead with a passion.

There are currently 14 different versions of resolutions submitted by various House and Senate members to amend the Constitution. Outside organizations have engaged in petition drives and/or other activities in support of one or more of these amendments. There are several organizations that are promoting a 28th Constitutional Amendment, but three are particularly noteworthy:

Free Speech for People
Move to Amend
Stamp Stampede

The Free Speech for People website provides a listing, description and analysis of all 14 proposed Constitutional amendments. They have put their support behind the Tester/McGovern proposals because it does have some bipartisan support. On the other hand, the Move to Amend organization has put their support behind the Nolan resolution, which I personally like because it is more comprehensive. It is copied here:

House Joint Resolution 29 introduced February 14, 2013

"Section 1. [Artificial Entities Such as Corporations Do Not Have Constitutional Rights]. The rights protected by the Constitution of the United States are the rights of natural persons only.

"Artificial entities established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law. The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable.

"Section 2. [Money is Not Free Speech]. Federal, State, and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidates own contributions and expenditures to ensure that all citizens, regardless of their economic status, have access to the political process, and that no person gains, as a result of their money, substantially more access or ability to influence in any way the election of any candidate for public office or any ballot measure.

"Federal, State, and local government shall require that any permissible contributions and expenditures be publicly disclosed. The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment."

End of resolution......

The process for amending the Constitution is not an easy task, and while not wanting to discourage grassroots efforts to amend, we must maintain a realist perspective and think long term. It takes a vote of two-thirds of both the House of Representatives and the Senate followed by a ratification of three-fourths of the various state legislatures (ratification by thirty-eight states would be required to ratify an amendment). Or to put it another way, a mere 13 states can withhold approval and block the amendment.

The 27th Amendment to the Constitution took 202 years, 7 months and 12 days after James Madison first proposed it in 1979. That amendment prohibits any law that increases or decreases the salary of members of Congress from taking effect until the start of the next set of terms of office for Representatives. It might have languished forever if not for the efforts of an undergraduate student at the University of Texas starting a letter writing campaign to members of Congress.

On the other hand, the ratification time span for the 26th Amendment took only three months and eight days. The 26th Amendment lowered the voting age from 21 to 18 years, and came about because of a passionate campaign by our youth, who were being conscripted in large numbers to fight in an unpopular war in Vietnam but were not allowed to vote. "Old enough to fight, old enough to vote."

To get the 28th Amendment passed will require a similar grassroots and patriotic effort by a large segment of society, but especially young people with the energy and passion to organize. It was the youth of America that can largely be credited for the passage of Amendment 26 and the more popular Amendment 27. Without that passion for the proposed Amendment 28 , it might be 200 years before it is passed.

One of the grass roots efforts initiated by Ben and Jerry, (the ice cream people and not very young), is called Stamp Stampede. It is designed to make the public aware of money and politics by having citizens stamp a short message in red on the back of their money as they spend and circulate it.

They carry four different models of stamps with a choice of five nifty messages:

Not to Be Used for Bribing Politicians
Stamp Money Out of Politics
The System Isn't Broken. It's Fixed
Corporations are Not People
Not To Be Used for Buying Elections

The idea is that as more and more of the "stamped money" circulates, and people read the stamped messages on the back of the bills, people will be reminded again and again, about the corrupting influence of money on politics. In this election year in particular, people will get sick and tired of watching the endless negative political ads on TV so the stamping of money presents an opportunity to heighten people's awareness (or perhaps we should say anger)of how campaign money is being solicited and spent. For those interested in learning more or participating, just Google "Stamp Stampede."

This and other efforts no matter how small, all make a difference. However, as I said before, we should not get too excited that a 28th Amendment can be accomplished quickly. The process of amending the Constitution is difficult and those last few states will be especially tough. Furthermore, it should also be noted that the ACLU has opposed any and all proposed Constitutional amendments that are "premised on the notion that the answer to money in politics is to ban political speech."

So think of a Constitutional Amendment process as being an "experience to improve awareness" and to rally like minded folks to a cause. Don't set expectations too high for actually achieving the goal anytime soon. As the expression goes, "it is the journey that is the destination."

“It is good to have an end to journey toward; but it is the journey that matters, in the end.” -- Ernest Hemingway

With this Congress and the many right leaning state legislatures, we may not see a 28th Amendment soon or perhaps even in our lifetime. In the journey there though, we will meet many wonderful people who share a common devotion to correct the injustices and mistakes of our current Supreme Court, that at every opportunity has sought to "eviscerate our Nation’s campaign finance laws."
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