With the 2012 presidential campaign now fully underway, Americans are witnessing firsthand the damage wrought by the Supreme Court's ruling in Citizens United vs. Federal Elections Commission. The decision reversed previous holdings in support of laws that block CEO's from spending their shareholders' and customers' money on politics. Fortunately, we need look no further than our own history for the means to correct this travesty.
We have already seen Koch Industries convene a gathering of CEO's where some $88 million was pledged toward influencing the 2012 elections. The Chamber of Commerce will likely surpass the $75 million it spent in 2010 and partisan operatives including Republican Karl Rove and Democrat David Brock have set up so-called Super-PACs to get into the unlimited corporate money game as well.
Unlike people, corporations have no inalienable right to life, liberty, and the pursuit of happiness. Rather, We the People have acted through our government to establish corporations as legal entities for very specific and important economic purposes. To encourage investment in corporations, we grant them limited liability -- so if you own stock in a corporation that kills someone, you may lose the value of your shares but you won't face personal manslaughter charges.
Instead of adhering to the letter of our Constitution, five members of the current Supreme Court have edited our founding document to give corporations constitutional protections, including freedom of speech. And because they equate money with speech, that allows corporations to spend whatever they want on political advertising, the justices say. Most Americans disagree with this decision. Yet, does the Supreme Court get the final say?
Fortunately, the answer is no. When previous Supreme Courts ruled that slavery and poll taxes were legal under the Constitution, Americans responded by passing constitutional amendments. We did the same when the Court struck down voting rights for 18-year-olds as well as the establishment of the income tax.
Given that our next Congress will be elected under the heavy influence of corporate campaign spending, how can citizens get two-thirds of the members of both houses of Congress to support a constitutional amendment that would change the rules by which they were chosen?
Our challenge is similar to that of citizens a century ago who pushed for direct election of U.S. senators. They needed two-thirds of U.S. senators to change the way they came into power from legislative appointment to direct election. Moreover, they then needed to convince three-quarters of state legislatures to give up their power to appoint U.S. Senators.
One technique that worked then was called Voter Instructions. Voters passed ballot measures instructing state legislators to appoint to the Senate the candidate who had won in a non-binding popular election in that state. Legislators followed these instructions, and the Senators who were thus appointed had nothing to fear from direct election. Those senators became supporters of what ultimately became the 17th Amendment.
The tradition of constituent instructions dates to the pre-Revolutionary War era. For example, colonists sent delegates to the Continental Congress with instructions on a number of matters, even orders to support the Declaration of Independence. The practice continued under the Articles of Confederation and during the Philadelphia Constitutional Convention of 1787.
While constituent instructions have never been considered legally binding, they have historically carried great force. Some of our Founding Fathers, including John Quincy Adams, resigned their offices rather than disobey instructions from their constituents.
Today, 24 states have a mechanism for voter initiatives, allowing citizens to change laws directly or demand action by their legislators. In other states, legislatures or local governments may submit issues to the voters for action in a binding or advisory referendum. Voters in Dane County, Wisconsin voted this spring by a margin of 78% to voice support a constitutional amendment stating that political spending is not the equivalent of free speech and that corporations are not entitled to constitutional rights. The city council of Boulder, Colorado will soon decide whether to schedule a similar vote this fall. The Hawaiian legislature has passed a resolution calling on Congress to pass such an amendment.
By taking these requests for action a step further and embracing our proud and long tradition of voter instructions, citizens can indeed take matters away from the Supreme Court and into our own hands. Whether we will, of course, is up to us.
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Had the SCOTUS found differently, Congress would have the power to limit speech by source. Organizations of all forms would have their right to contribute to public discourse under threat. Even if you believe it is in the public interest to limit big corporate contributions, you must also respect the fact that an overly broad approach will effectively bar small business owners (who don't have big legal budgets to find loopholes) from petitioning the government as should be their right.
I believe the SCOTUS found rightly, though also that those who fear money corrupting politics have a right to be heard. My suggestion is any entity who contributes to election campaigns be taxed at the individual rate. As small business owners usually control flow through entities the impact of additional tax and cost of compliance should be minimal. Big business will have to weigh the benefits of using vast resources to support elections against the detriment of paying substantially higher taxes and justify the decision to shareholders. You must carefully account for issues like subsidiaries and the like, but even so I believe this type of setup likely wouldn't require an Amendment to implement.
Whatever is done, please tread carefully. Too often we unwittingly surrender our rights in our haste to limit those of others.
The SCOTUS overreached in Citizens United v FEC because they are ideologically a right-wing activist court. This ruling will be overruled by a future rational court.
As for money not being speech, look up Buckley v. Valeo. No 5-4 decision there and it was from 1976, so I doubt that's changing anytime soon.
People really need to look past their hatred of corporations and consider what would happen if Congress could silence organizations with a simple majority. That seems to be precisely what Citizens' opponents advocate.
After the nation’s founding, corporations were granted charters by the state as they are today. Unlike today, however, corporations were only permitted to exist 20 or 30 years and could only deal in one commodity, could not hold stock in other companies, and their property holdings were limited to what they needed to accomplish their business goals. And perhaps the most important facet of all this is that most states in the early days of the nation had laws on the books that made any political contribution by corporations a criminal offense.
It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.
In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races."
http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf
The dissent begins on page 88. It should be required reading.
http://zerablog.wordpress.com/citizens-united/
* Whereas the authority of our Government derives from the consent of its Citizens;
* Whereas petitioning elected Officials is an exercise of sovereign power;
* Whereas the success of a democracy – and a representational form of government – depend on a well-informed electorate, and thus influencing their judgment affects that success;
* Whereas money is a decisive factor in controlling the information presented to the electorate;
It is a natural conclusion that money from sources other than Citizens, when applied to the political process, interferes with our natural Sovereignty.
"Section 1
The Right of Free Speech, as applied to Campaigns for the election of persons to positions of Public Office or Public Trust; or matters of Legislation, Law, or Public Policy; shall be reserved exclusively to the Citizens of the United States."
http://zeraland.wordpress.com/2011/07/30/securing-our-sovereignty/
I am not sure exactly what "voter instructions" are, but I like the idea. I have long been a supporter of a national referendum, but I don't think that will ever happen. After all, why would legislators who are supposed to represent "we the people," ever give power to "we the people?"
Can you explain, for example, how people in a particular state can begin a process to achieve the results that you denoted in the above article? I live in AZ. Do you know how this might work in our very red state? Please explain further.
Thanks for the idea!
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