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Rep. Jim McGovern

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Rescuing 'We, the People'

Posted: 05/24/2012 12:13 pm

Defenders of the Supreme Court decision in Citizens United and the ascendant corporate rights doctrine that underlies it must be getting nervous.

Why else would George Will resort to arguing, as he so outrageously does ("Taking a scythe to the Bill of Rights", May 6) that the bipartisan People's Rights Amendment I have introduced in the House is "comparable" to condoning infanticide?

A large majority of Americans believe that corporations exert too much influence on our daily lives and our political process. A Hart Research poll released last year found that nearly four in five (79 percent) of registered voters support passage of a constitutional amendment to overturn Citizens United. Resolutions calling for such an amendment have passed in several states and cities across the country. Eleven state attorneys general have written to Congress demanding action.

We are already witnessing the corrosive effects of Citizens United: an election system awash in a sea of millions of dollars in unregulated money, drowning out the voices of individual citizens. Politicians are increasingly beholden to wealthy special interests. A multi-national oil company that doesn't like a particular member of Congress can now simply write a big, undisclosed check to "Americans for Apple Pie and Puppies" and watch the negative advertisements work their magic.

But the effects of the corporate rights doctrine go far beyond campaign finance. A Vermont law to require that milk products derived from cows treated with bovine growth hormone be labeled to disclose that information was struck down as a violation of the First Amendment. A federal judge has found that tobacco companies have a free speech right that prevents the government from requiring graphic warning labels on cigarettes. A pharmaceutical corporation has claimed that their corporate speech rights protect them from FDA rules prohibiting the marketing of a drug for "off-label" uses.

As Justice Stevens rightly noted in his dissent in Citizens United (and contrary to what Mr. Will would have us believe), the majority ruling was "a radical departure from what has been settled First Amendment Law." These corporate "rights" are relatively new, appearing in the last few decades. They overturn centuries of established jurisprudence and national consensus. The Supreme Court used to repeatedly affirm that the elected governments of the states and the nation could regulate corporations. Chief Justice John Marshall described the corporate entity as "an artificial being ... existing only in contemplation of law." No less an authority than James Madison viewed corporations as "a necessary evil" subject to "proper limitations and guards." Thomas Jefferson wished to "crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country."

There is nothing "originalist" about the corporate rights doctrine, and it is no mere accident that the first three words of the preamble to our Constitution are "We the People."

Mr. Will conjures up a nightmare scenario under the People's Rights Amendment under which "[n]ewspapers, magazines, broadcasting entities, online journalism operations -- and most religious institutions" would be stripped of all constitutional rights. Wrong. Those rights were properly secure before the modern fabrication of the corporate rights doctrine and would continue to flourish. The people who make up those institutions, whether acting as individuals or in groups, would continue to enjoy the liberties we all hold dear and the Constitution enumerates. Corporations would continue to have legal standing to advocate on behalf of the people associated with them. But the fiction that an artificial corporate entity is itself entitled to the same rights of citizenship as people would come to an end.

Corporations are created by the people, acting through their governments. We grant them corporate charters that confer certain legal rights and privileges, like the ability to enter into contracts, limited liability and perpetual life. These rights serve an important and useful role in our economy. But our most sacred rights -- those enshrined in the Constitution -- should be reserved for "We the People."

Mr. Will says that "controversies can be wonderfully clarified when people follow the logic of illogical premises to perverse conclusions." Indeed. By conflating a good-faith attempt to overturn Citizens United with the killing of newborn babies, banning political speech and regulating religious practices, his column demonstrates the lengths to which the supporters of the corporate rights doctrine will go to protect their newfound gains.

Jim McGovern is a U.S. Representative from Massachusetts.

 

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