The fundamental threat to an authentically representative and direct democracy precedes the 2010 Citizens United v. Federal Election Commission1 and other Supreme Court decisions asserting money is protected free speech to include the doctrine that corporations possess inalienable constitutional rights.
While there are multiple sources for the increasing perception, if not reality, that government isn’t responsive and accountable to citizens, the inordinate political influence and power of wealthy individuals and corporations may at the moment predominate. Any hope of attaining a political system widely perceived as legitimate and genuinely representing its citizens must include governing rules that sufficiently control the political influence and power of special interests.
Given the current political climate of profound government mistrust and widespread belief that it’s been captured by wealthy individuals and corporate entities for self-serving ends, a constitutional amendment addressing the constitutional roots of these duel threats is urgent and timely. No laws, regulations or Presidential decrees are capable of providing the essential defining authority over the overall role of money in elections and corporate entities in society.
A proposed constitutional amendment has been introduced in Congress, H.J.R 48, the We the People Amendment. It currently has 44 co-sponsors and a nationwide movement, organized by the Move to Amend campaign, behind it.
The We the People Amendment reads:
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 candidate’s 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.
The proposed amendment’s Section 2 addresses the more familiar issue-area of money in elections. Its main element proposes abolishing the link between money and free speech, first established in the 1976 Buckley v. Valeo2 decision. It goes beyond Citizens United because the corrupting role of money in politics predates Citizens United by decades.
If money is defined in elections as free speech, then those individuals and artificial entities who contribute/invest the most money possess the most speech. This drowns out the political voices of most citizens — hardly a recipe for a legitimate democracy.
Section 2 doesn’t establish any precise funding amounts or formulas. Such regulations would shift back from the judicial to the legislative branch – a more democratic arena where the public has greater influence and where regulations can be more easily adjusted as needed.
Section 1 of the proposed amendment identifies an equally important, but less publicly understood, impediment to the creation of an authentic democracy – constitutional rights to artificial legal entities (i.e. business, non-profit corporations and unions). Courts declared over the last century that sections of the U.S. Constitution, including the Bill of Rights, originally intended exclusively for human persons, applied to corporate entities.
Corporate constitutional “personhood” rights have been used to overturn scores of democratically enacted laws protecting workers, communities, consumers and the environment. Most of these predated Citizens United and the First Amendment “free speech” rights bestowed on corporate entities in First National Bank of Boston v. Bellotti3.
While no “artificial entities” should possess Constitutional rights, they should have statutory powers and privileges. These would be defined and adjusted legislatively once inalienable rights are abolished. Like Section 2, these decisions would be shifted back where at one time they once existed from the judicial to the democratic legislative arena.
The We the People Amendment would dramatically increase the perception and reality of an authentic democracy.
1558 U.S. 310 (2010)
2424 US 1 (1976)
3435 U.S. 765 (1978)