Abolishing Money as Speech and Corporate Constitutional Rights

MTA

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.

Notes

1558 U.S. 310 (2010)
2424 US 1 (1976)
3435 U.S. 765 (1978)

 

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How Judicial Review & Life Time Appointments Make the Supreme Court a Democratic Threat

 

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Workshop at Democracy Convention  |  Saturday, August 5, Minneapolis, MN
David Cobb and Greg Coleridge
Program on Corporations, Law & Democracy Principals

http://kfai.org/northern-sun-news/playlists/20170810

or

 

 

 

Electoral College Hijacks Democracy — Again

electoral-college-29-s

Today is a historic day. Only 5 times in the history of the United States of America has a select number of individuals come together to overrule the will of a majority of voters who case their ballots for the President of the United States.

Those Overrulers are members of the Electoral College. Despite Hillary Clinton winning the popular vote by over 2 million individuals, Donald Trump won the majority of “Electoral College” votes — a relic of early U.S. history established to protect the political power of slave states from “free” northern states.

We are, thus, enslaved over the next four years with being ruled by a President without a popular mandate — again. Our undemocratic Constitution has once more delegitimized and corroded what remains of our democratic republic.

Over the last six months, we’ve seen three grotesque examples of democratic people power being hijacked by the power elite (I.e. wealthy individuals and corporations):

1.    Last summer, ExxonMobil Corporation argued in court against publicly releasing documents on what they knew about the effects of human activities, specifically the burning of fossil fuels, on climate change. Their defense was that such a release of such information was a violation of their 1st Amendment free speech, 4th Amendment search and seizure and 14th Amendment due process constitutional “rights.”

2.    Over the past two years, the impact of political contributions from the super wealthy and corporations from the Presidential level on down (or up, depending on your view) to the federal Congressional and state levels have drowned out the voices of people and constituencies trying to raise critical issues, perspectives and alternatives without access to millions of dollars to run political ads during the current election cycle. It’s nothing new. It was just worse that the previous election cycle, which was worse than the preceding cycle.

3.    The candidate for President of the United States who received two million more votes than her closest competitor lost to that competitor because of some arcane, slavery-era Constitutional provision.
Some democracy.

So what are the lessons for those dedicated to creating real democracy?

There are many, but the central one is the need to not only spend activist time, energy and resources focused on changing public officials, laws and regulations. We must also spend at least some time focusing time, energy and resources on changing or amending the many undemocratic elements of the U.S. Constitution.

How many more times will a corporation assert never-intended constitutional rights to avoid being accountable to the public and the planet before we act? How many more election cycles must we live through where the voices of huge numbers of individuals and key constituencies will not be politically heard before we act? How many more Presidents will be “elected” who receive fewer votes than their competitors before we act?

Imagine if a measly 1% of the $1.4 billion that was spent to elect Clinton was invested in a national effort to democratize the U.S. Constitution (addressing the items mentioned above and others)? That’s $14 million. Not a bad down payment for doing some democratic damage (as in positive change)!

Regarding the Electoral College, there is a short-term solution short of amending the Constitution. It’s passage in states of what’s called the National Popular Vote Interstate Compact (NPVIC). The idea is that states that pass this law agree to award all their electoral votes to the Presidential candidate who wins the popular vote nationwide, regardless of the vote in participating states.  Since it’s a law, what one legislature can pass, another in the future can repeal. It’s certainly better than what we have, but not as permanent as amending the Constitution to abolish the Electoral College altogether.

It’s time to take advantage of this outrageous, but also teachable and organizing moment to fundamental (re)create real democracy by democratizing our Constitution.

A U.S. Constitution with DEMOCRACY IN MIND

title

The Electoral College fiasco once again (repeat: once again) underlines the strategic need to invest at least some of our activist energies on amending the Constitution. Focusing only on creating justice, peace, and sustainability through elections, laws and regulations (whether local, state and/or federal) isn’t enough if the fundamental constitutional ground rules are rigged against We the People — which they are. Here’s a piece from a few years ago on how to “democratize” our Constitution.

A U.S. Constitution with DEMOCRACY IN MIND

[scroll down to second article]

http://poclad.org/BWA/2007/BWA_2007_MAR.html#3

“Rigged” elections

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Thanks to the U.S. Constitution, we’ll have a President once again who lost the popular vote. It didn’t turn out so well last time (Bush rather than Gore). So much for We the People being in charge. The Electoral College is one of many undemocratic and “rigged” provisions of the Constitution. Can we really have anything resembling an authentic democracy when our basic overarching governing document is so undemocratic? Isn’t it time to rise up?!

The U. S. Constitution: Pull the Curtain
http://poclad.org/BWA/2007/BWA_2007_DEC.html