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Kent Greenfield

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Why Progressives Should Oppose A Constitutional Amendment to End Corporate "Personhood"

Posted: 01/26/2012 5:22 pm

Obviously, progressives disagree with conservatives over the Supreme Court's now-infamous decision in Citizens United v FEC. Conservatives laud the ruling's protection of corporate political expenditures and believe nothing needs fixing. Progressives, on the other hand, almost universally decry the Court's ham-fisted, activist ruling and rue its implications for our democracy.

But there is a lot of disagreement among progressives about what to do.

Case in point: I engaged in a battle of the op-eds this past weekend, the second anniversary of the Citizens United ruling. In the Boston Globe, Congressman Jim McGovern and lawyer Jeff Clements described their proposed "People's Rights" constitutional amendment, which would overturn Citizens United by limiting constitutional protections to "natural persons" only. Their amendment is one of several being pushed these days building on the notion that corporations are not people. Meanwhile, in the Washington Post, I argued that such a constitutional amendment was a bad idea. Clements, the author of the new book Corporations Are Not People, has since responded on his blog, saying that my Post editorial was "way off-target."

This is more than just an intellectual spat between lawyers. If progressives are split, the benefactors of corporate money will have an easy job obstructing any meaningful reform. If progressives can agree on a remedial strategy, we might have a shot at getting something done.

So let me say why progressives should not spend our resources on an anti-corporate-personhood amendment.

An amendment is an overreaction.
Though Citizens United was about free speech rights, and the main concern of its opponents is about the power of large, for-profit corporations, the People's Rights Amendment would end all constitutional rights for all entities that are not natural persons. So a private university -- not a natural person -- could be required to start classes with a prayer. The government could prohibit The Huffington Post -- not a natural person -- from printing columns critical of the president. The FBI could seize the servers owned by Google -- not a natural person -- without a warrant. Each of these would be a clear constitutional violation under current law, but would be permitted under the People's Rights Amendment.

Groups are important to progressives.
The notion that constitutional rights are only for people is dangerous to progressive ideas. The freedom of association is constitutionally protected, and ought to be, because humans are social animals -- we organize ourselves in groups to self-identify, to amplify our speech, and to gain and provide mutual support and encouragement. We join the PTA and the Masons; pray in churches, synagogues and mosques; contribute to Planned Parenthood and the National Wildlife Fund; pay union dues to the AFL-CIO or NEA. If constitutional rights were for natural persons only, none of these groups would have constitutional rights, and that would cost us all dearly.

Think about it. Many cases important to progressive ideals were brought by groups, associations, and corporations, not by natural persons. The case that saved Roe v. Wade in 1992 was Planned Parenthood v. Casey. NAACP v. Button was a crucial case in the civil rights movement. When Nixon wanted to quash the publication of the Pentagon Papers, it was the New York Times that fought to protect the public's right to know, in New York Times Co. v United States. Rumsfeld v. FAIR, a case that challenged the Pentagon on Don't Ask Don't Tell, was brought by a non-profit corporation (which I founded and led), which had as its members other non-natural "persons" (universities, law schools, and law school faculties).

Individual rights are not enough.
Some have argued that it would be okay to cut off rights to groups, because individuals would still have rights. We do not need to worry about, say, the New York Times as long as its reporters can exercise freedom of the press. (The People's Right Amendment asserts that it should not "be construed to limit the people's rights of ... freedom of the press," but I presume this means the rights of individual reporters rather than newspaper companies, since those companies are not "natural persons.")

But this answer is unsatisfying. If the New York Times had no constitutional rights of its own, it could be prohibited from printing or distributing its newspapers. Its website could be shut off. Its printing presses could be seized. It could be prohibited from paying employees. The fact that individual reporters would still have rights to distribute homemade handbills or orate from a soapbox would mean little.

A similar analysis works for other groups. If universities can be prohibited from teaching classes about Sharia law, it means little if professors can only teach such classes on their own time in their own living rooms. If Planned Parenthood (and other health care organizations) can be prohibited from performing abortions, it means little that individual women have an abstract right to terminate their pregnancies.

"Personhood" is a red herring.
The main dissent in Citizens United was penned by now-retired Justice John Paul Stevens. He appeared on Colbert last week and was asked about Citizens United. He admitted that, yes, corporations are legal "persons" for some purposes. But how can that be? How can he believe corporations are "persons" but should not have the power to spend limitless amounts on elections? Because personhood is neither here nor there in constitutional analysis. Stevens clarified in his interview, as he did in his dissent, that the constitution sometimes protects "persons" and sometimes not. In other words, the outcome in constitutional cases does not depend on personhood but on whether protecting artificial entities benefits real people.

Progressives once understood this. One of the judicial ancestors of Citizens United is a 1976 case about a Virginia law prohibiting pharmacies from advertising prices. The Court struck down the law, in effect guarding the rights of businesses to advertise in order to protect their human customers' rights to receive information they needed. The personhood or non-personhood of the pharmacies was a non-issue. It is worth reminding current critics of Citizens United that the Virginia pharmacy case was brought by Public Citizen, the consumer rights group co-founded by Ralph Nader.

A constitutional amendment distracts from remedies that are targeted, possible, and effectual.

Any proposed constitutional amendment faces an uphill battle. To gain passage, an amendment has to be endorsed by a two-thirds vote in both chambers of Congress and ratified by three-fourths of the states. Most amendments fail: while scores are proposed each Congress, we have seen only one succeed in the past 40 years. (And that one, a minor rule about congressional salaries, took 200 years to be ratified!)

Meanwhile, there are a number of good ideas worth pursuing to limit the power of Big Money in our politics. Most of these ideas could come through legislative or regulatory enactments requiring no more than a majority vote in Congress and a presidential signature. If we focused our energies and resources on these legislative initiatives rather than on a constitutional amendment, we might achieve meaningful change.

 
 
 

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