Amend the Constitution to restore the democracy the Roberts court killed

Please note:  This essay originally appeared in The Hill on August 29, 2013.


Money is not speech. Corporations are not persons. Most of us intuitively understand that. The Supreme Court clearly does not. In Citizens United v. FEC, it ruled that corporations have a First Amendment right to expend unlimited amounts of money to influence elections. More recently, in McCutcheon v. FEC they struck down the overall caps on how much money wealthy individuals can contribute directly to campaigns and to party committees. The Supreme Court’s decisions are wrong and they deserve to be overruled with a constitutional amendment to restore the First Amendment to its rightful place protecting American democracy, instead of as a tool to suppress speech rather than enhance it.          

Some will object that we should not amend the First Amendment, that it is fine the way it is. However, the Supreme Court's recent decisions have twisted the meaning of that Amendment from supporting democracy to privileging it for the few.  The Supreme Court has been wrong in the past and they have been corrected with constitutional amendments and laws. This is called checks and balances.


A century ago reformers such as Teddy Roosevelt rued the rise of wealthy corporations and individuals corrupting American politics. Supreme Court Justice Louis Brandeis stated:  "We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both."  Thus was launched a battle against the undue influence of wealthy special interests that included anti-trust laws, bans on corporate political activities, progressive taxation, and campaign finance reform legislation. The Richard Nixon Watergate abuses produced more reforms, including public financing of elections, disclosure laws, and political contribution and expenditure limits.          

But beginning with the 1976 Supreme Court decision Buckley v. Valeo, wealth fought back.  The Court ruled that limits on how much money candidates, groups, and wealthy persons could spend were unconstitutional.  The Supreme Court under Chief Justice Roberts continued to hack away at efforts such as McCain-Feingold to limit the power of money in politics. Citizens United and McCutcheon are only the most recent examples of how the Court is letting money and privilege entrench itself, preventing the political system from functioning. The gridlock in Congress and rising inequalities across America are the result.          

The First Amendment under the Roberts Court has become a tool to suppress speech rather than enhance it.  The First Amendment free speech clause is not meant to be a right for one or the few but for all. It is recognition that in a society all of us have a right to speak, and to do that, as in any social situation, there are rules of communication that make a conversation possible. There is no way that a rule that says all of us have an unlimited right to shout is viable; at some point, one has to understand that the First Amendment rights of some have to be read or understood in light of the rights of others. The right to free speech cannot be interpreted in such a way that the rights of a few can suppress the free speech rights of others. As philosopher John Rawls once declared:  “[E]ach person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.” Rights to free speech must be read within a social context of like liberty for all.  Citizens United, McCutcheon, and its defenders fail to recognize this principle.          

Money should not be a factor determining who holds political power, what bills are passed, and how elections are run. The issue is not only whether money buys influence or corrupts. It should be whether money should at all be the criteria by which political power or influence is allocated, and whether the First Amendment should shield such privilege.          

Justice Rehnquist, dissenting in First National Bank of Boston v. Bellotti, recognized the illegitimate drive of corporations to want to convert their economic resources into political power.  He declared: “It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.” And in Federal Election Commission v. National Right to Work Committee, the Court quoted the federal government’s brief in that case that the purpose of limiting money in politics was “to ensure that substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization should not be converted into political ‘war chests’ which could be used to incur political debts from legislators who are aided by the contributions.”           

What these comments from the Supreme Court suggest is a recognition by it at one time that money used for political purposes needs to be limited. Politics in general, and campaigns and elections in particular, may be expensive and money may be necessary to run campaigns and elections, but their costs or funding sources should not undermine democratic values. The problem with Citizens United and McCutcheon is that five Justices radically departed from past precedent and failed to understand how a democratic system derives its legitimacy from political equality. Money and wealth should not rule in American democracy; it should be real people, all the people. Previous Supreme Courts understood this, but not the Roberts Court.  This is why we need a constitutional amendment — to restore democracy to America.

Personhood v. Property: A Difficult Line to Draw with No Clear Answers

A brain dead pregnant woman with a 14 week fetus lies in a hospital room on life support.
    A corporation endorses candidates for office and makes independent expenditures on their behalf.
    A slave in 1836 is taken by his owner to Fort Snelling, Minnesota.
    A primate communicates with its keepers.
    A robot or computer wins Jeopardy.
    A highly intelligent space alien visits Earth.
    Six bizarre scenarios, but all raise the same question: Which is a person?  The woman, the fetus, the corporation, the slave, the primate, the robot, or the space alien?
    One of the most perplexing questions ethically and constitutionally is who is a person and therefore entitled to protection under the Constitution?  There may be no simply answer but the line between property and personhood is a difficult one to draw but it is one that is dividing America politically and it will continue to be one that shapes policy debates into the future, much as they have in the past.  However, when it comes to debates such as abortion or corporate free speech rights, too many people think there are simple answers to resolving questions by simply asserting that something is a person or not.
    Beyond recent events in the news, the occasion for raising this issue is that about a week ago I debated University of St Thomas professor Teresa Collett.  It was at a forum about the concept of free will and free choice–issues that underlie the pro-life and pro-choice debate.  We debated the day before the anniversary of Roe v. Wade.  My task was to defend the philosophical or ethical concept of choice–she took the contrary position.  What she really wanted to do was argue against abortion.  She and the crowd were adamant in asserting that they knew the fetus was a person.  In the end, I argued their position was a matter of faith.  There is no scientific answer defining who or what is a person.  In part, the philosophical basis for pro-choice is about skepticism about what it means to be a person.  Skepticism about ultimate truths also underlies in part the concept of recognizing individual freedom and toleration for diverse opinions.  Whatever I believe may not be correct and others may not share  this view.
    It is just not so easy as some think to define who or what is a person.  The Constitution does not define who or what is a person and there seems to have been a binary switch in terms of how to think about persons–either you were one or not.  If you were a person you had certain rights, although exactly what those rights were was debatable.  Few debated that children, women, or non-US citizens were persons, yet they did not enjoy all the same rights and privileges as did mature men.  Even today rights are qualified–children have limited rights and are not entitled to vote until a certain age and they face other restrictions (smoking, drinking, and driving) that adults do not.  Non-citizens are also restricted in what they are permitted to do.  And take us back more than 100 years, or even simply today, and women were restricted in what they could do.  Similarly, gay and lesbians are persons but in many states still face restrictions on marriage.  All of these people are persons constitutionally, but face limits on their rights.
    But if something is not a person constitutionally, what is the alternative? Property.  Slaves prior to the Civil War and the passage of the 13th Amendment were simply viewed as property of their owners.  That is why when Dred Scott was taken north to Fort Snelling and free territory he was not considered free under the Missouri Compromise.  He was human but nonetheless property and could not be taken away from his owner less it would be a violation of the Fifth Amendment eminent domain clause.  Property status means no rights except as they attach to the owner.  Animals were historically viewed as property and therefore owners could do whatever they wanted to them.  The same with computers, or robots.
    But for so many reasons, the line between property and personhood has become more complex legally to draw for a simple reason–there is no objective answer to what constitutes a person.  Contrary to the assertions of many, especially in the pro-life community, there is no objective scientific answer to what constitutes a person.  Simply asserting that one is a member of the homo sapiens species is not an answer–it is not even the beginning or the end of the analysis.
    Rightly or wrongly the Supreme Court has ruled corporations to be persons and entitled to some rights, yet no one would claim these entities to be homo sapiens.    A human zygote is genetically a member of the  homo sapiens species, but to call it a person is also foolish since it lacks all the other attributes we attribute to persons including a sense of self-awareness or maybe a concept of will.  A brain dead person on life support is genetically human, but not alive, is she really a person?  Or consider a primate who shares 99%+ human DNA is compared to a child born with severe genetic mutations.  Genetically how much of a difference is there really between the two.
    Now push the issue into a stranger direction.  What about super smart computers or robots who can think and develop a sense of self-awareness of the world?  Think of HAL in the movie 2001: A Space Odyssey.  Or how about a day in the future when humans are rebuilt along the lines of Lee Majors in the old television show Six Million Dollar Man and a human is half machine and  half flesh and blood?  Compare him to a robot?  What if both kill someone–who can be charged with a crime?  Or what if space aliens from a more advanced civilization visit Earth and they are a lot smarter than us?  They may not be humans but if they had superior intelligence and were self-aware, they have attributes they we presently use to distinguish us from animals in denying them rights.
    Defining who or what is a person is a complex task.  There may be no one correct answer and I contended at the debate on free will and abortion that ultimate answers rely in part on reaching social consensus on this question.  But even there the answer is not resolved.  By that, even if something is recognized as a person that does not resolve the issue of what rights are entitled.  Rights also must be adjudicated in light of the rights of others and in regarding to competing social values that must be weighed.  Even if we treat corporations as persons, that does not mean that they get all the rights as other homo sapiens and it may be the case that we favor or let the rights of real humans trump that of corporations.  Similarly, even if we concede that a fetus is genetically homo sapiens, that does not mean it is a person and even if a person we do not know what rights it is entitled to and how those rights must be weighed in comparison to other social values–such as respect for a right for women to control their bodies.

Protecting Shareholder Rights: The case for the Minnesota Shareholder Freedom of Choice Amendment

 

Minnesota voters might see their November 6, 2012 ballot crowded with constitutional amendments. Among their choices could be the Minnesota Freedom of Employment ("Right to Work") Amendment. As presently worded, the Amendment would ask Minnesotans:

     Shall the Minnesota Constitution be amended to guarantee all citizens the individual freedom to decide to join or not join a labor union; to remain with or leave a labor union; or to pay or not pay dues, fees, assessments, or other charges of any kind to a labor union or any affiliated third party or charity, without having it affect their employment status?

Proponents of the amendment contend that its purpose is no more than to give individual workers the right to decide whether they wish to join or support a union. As a backup supporters also argue, as did Governor Scott Walker in Wisconsin or Mitch Daniels in Indiana, that such an amendment or legislation will facilitate a business-friendly environment that will help the economy and produce jobs.

Conversely, opponents contend–and some proponents secretly or not so secretly concede–that the real purpose of the amendment is partisan. It is an effort by Republicans to break the financial back and political power of the unions which have historically supported Democrats in elections or in lobbying for specific types of legislation such as minimum wage laws and workplace safety regulation.

But the power of labor unions politically is dwarfed in comparison to corporations and their treasuries. The 2010 Supreme Court decision Citizens United v. Federal Election Commission has unleashed corporations to spend tens if not hundreds of millions of new dollars in politics, with its impact already well documented in this and the last election cycle. This money, plus the millions if not billions of shareholder dollars spent by corporations for lobbying, gives them a significant advantage in the political process. As former chief Justice Rehnquist once stated in First National Bank of Boston v. Bellotti: “A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. . . Indeed, the States might reasonably fear that the corporation would use its economic power to obtain further benefits beyond those already bestowed.”

The corporate form gives some business unique advantages economically. But as Rehnquist aptly observed, these advantages need to be regulated to prevent corporations from using the resources they acquired in the economic marketplace to benefit themselves unfairly in the political marketplace.

So what is to be done? If an amendment is going to be offered to the Minnesota Constitution to give workers freedom of choice and to reign in the power of unions, fairness only suggests a similar measure be introduced to apply to corporations. Thus, Republicans and Democrats should join together and support the Minnesota Shareholder Freedom of Choice (“The Right to Personal Profit”) Amendment. The amendment would ask Minnesota voters:

     Shall the Minnesota Constitution be amended to guarantee all shareholders in publicly-traded       corporations incorporated or registered to do business in the state, the individual freedom on an annual basis to decide if any of money of the corporation shall be expended, given, donated, or otherwise used for any political purposes directly or through a third party, without having it affect their dividends or rights to profits in that corporation?

Freedom of choice is a beautiful concept. It is the essence of the American ethos and a powerful moving force in politics. Shareholders should be given the same rights within corporations that workers enjoy if the Right to Work amendment is adopted. If we are so worried about the political clout of unions, one should similarly fear corporate clout.