California’s Democratic Governor Jerry Brown has permitted SB 1272, an advisory measure entitled the Overturn Citizens United Act, to appear on the state’s November 2014 ballot.
The measure not only calls upon Congress to “propose an amendment…to the United States Constitution” to overturn the infamous Citizens United decision and its progeny, but “to make clear that the rights protected by the United States Constitution are the rights of natural persons only.”
According to state Sen. Ted Lieu (D-Torrance), the author of SB 1272, the measure is intended to send “a message to Congress” that we “should not equate money with free speech and corporations are not people.”
A constitutional amendment that eliminated “corporate personhood” would not only invalidate Citizens United but would overturn the newly minted right to “corporate religious liberty” established in Burwell v. Hobby Lobby, Inc. (2014).
Unfortunately, the language Lieu included in the measure stops short of “money is not speech.” Instead, the measure simply provides for “full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another.”
While the ballot proposition is not binding, and has produced critics who describe the measure as little more than a political stunt, if adopted by an overwhelming majority of California voters this fall, it could very well help to ignite a nationwide groundswell of opposition to a series of decisions by an oligarchic Supreme Court that have threatened the very survival of our constitutional representative democracy…
Citizens United: A Case Which Will Live in Infamy
Within the confines of American jurisprudence, there has not been a decision of equal infamy to Citizens United since 1857 when the Court decided Dred Scott vs. Sanford (aka The Dred Scott decision).
In Scott, the Court, in service of wealthy Southern landowner/masters, ruled that African-American slaves and their descendants could never be considered “citizens.” They were but chattel, the personal property of their owners. The Southern slave master thus had a right to demand the return of his “property” should his property make the very human decision to escape.
It took a bloody civil war and the 13th Amendment to undue the damage the Court wrought by Dred Scott.
Just as the Court in Dred Scott became the legal instrument for a brutal 19th Century inequity by ruling that living, breathing human beings could never be citizens, so the five member Republican majority of the Court in Citizens United has become the legal instrument for a new 21st Century inequity by extending to artificial, inter-generational constructs known as “corporations” the rights that the framers of the Constitution had intended only to apply to living, breathing people who comprise the actual citizenry of this nation.
It is a ruling that calls into question the validity of all laws which seek to prohibit or even limit the ability of corporate bought-and-paid-for candidates to flood the airwaves with the corporate message, either directly or through corporate-purchased propaganda time slots; an ability that can drown out the right of citizens to see and hear those who do not tow the corporate line. Citizens United has opened the door to the creation of a new master-class under the aegis of the most undemocratic of institutions — the private corporation.
An Affront to Human Dignity
In Western Tradition Partnership, Inc. vs. Attorney General of Montana [PDF], Montana Supreme Court Justice James C. Nelson, while correctly anticipating that the U.S. Supreme Court would overturn the state’s century-old anti-corruption statute that barred corporate contributions, wrote:
Corporate ‘free speech’, the ‘free press’ & the public’s right to know
In Moyers on America, journalist Bill Moyers wrote: “As a relative few have concentrated more and more of America’s wealth, they have gained a power to be heard in politics that is denied to most citizens.”
Indeed, the expansion of corporate “free speech” succeeds in undermining the core purpose of a “free press”: to insure the public’s right to know.
It is quite telling that, in his majority opinion in Citizens United, Justice Anthony Kennedy not only failed to mention the fact that the framers included “freedom of the press” in addition to “free speech”, but that Chief Justice John Roberts added the height of irony in a separate concurring opinion: “First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.” Justice Scalia then piled on: “We should celebrate rather than condemn the addition of this speech to the public debate.”
Even before Citizens United, the scope of public discourse open to those who do not toe the corporate line was greatly constricted due to the fact that 95% of what Americans see, hear and read is controlled by a handful of giant corporate media conglomerates.
The classic example is the Fairness & Accuracy in Reporting study, cited by Amy Goodman in Exception to the Rulers, which was conducted “during the critical week before and after February 5, 2003 — the day Secretary of State Colin Powell made his case to the UN Security Council for invading Iraq.”
The study revealed that out of the 393 experts who appeared on the four major networks at the time (CBS, NBC, ABC & PBS) only 3 were anti-war — this “at a time when 61 percent favored diplomacy and inspections over war.”
Goodman aptly refers not to a “silent majority,” but a “silenced majority” — silenced by the inequitable distribution of power between the shrinking public spheres of discourse measured against a near complete corporate control of the media landscape.
We can’t wait for Scalia’s wondrous “addition…to the public debate” that will come from, for example, fossil-fuel profiteers like Exxon-Mobil, who, courtesy of Citizens United, is in a position to put the $45.2 billion in record profits the company received in 2008 into ensuring that their version of a don’t-worry-about-global-warming future becomes the only version we hear in future electoral campaigns.
As Robert F. Kennedy, Jr. astutely observed:
According to the Sacramento Bee, “Peter DeMarco, communications director for the [CA] Senate Republican Caucus, criticized” SB 1272 as a “waste [of] taxpayer dollars [that] won’t change anything” — a view that was seconded by columnist Dan Walters, who asserts the ballot measure is “pointless” and little more than an effort by Democrats to boost turn out during a year in which “none of the statewide contests or previous ballot measures has emotional impact.”
But is it a “pointless waste” to permit all citizens to exercise their First Amendment right to speak loudly and clearly on where they stand on an issue that is vital to the very survival of government based on the “informed” consent of the governed via the ballot box?
UPDATE: SB 1272, the ‘Overturn Citizens United Act’ will appear on the November 2014 ballot as Proposition 49. Supporters are posting on twitter #YesOn49
UPDATE 8/11/2014: Prop 49 is nixed from the November ballot by a 5 to 1 decision of the CA state Supreme Court. Full details, explanation now here…
I’m not sure this would undo Hobby Lobby, since that was based on RFRA, not the First Amendment. I think we still need an amendment to RFRA, to make clear that only living, breathing people have religious rights or perhaps to exempt the ACA from its reach so that sole proprietorships or partnerships can’t impose religion on their unwilling employees.
CambridgeKnitter @1 writes:
Actually, the Court had to cross the threshold of “corporate personhood” in order to establish that Hobby Lobby was entitled to “religious liberty” under the RFRA.
Since the RFRA is merely a statute, it could be repealed by another statute. Indeed, one of the troubling features of Hobby Lobby is that the Court used one statute to invalidate another, when, the deference to legislative discretion should have required the Court to assume that, in enacting the ACA, Congress intended its preventive care mandate to be an exception of the RFRA.
The proposed “Not My Boss’ Business Act,’ which the GOP filibustered would have remedied Hobby Lobby irrespective of whether the boss is a corporation, partnership or sole proprietorship.
What is truly needed, in addition to an end to corporate personhood, is a renewed effort to secure an Equal Rights Amendment designed both to end wage disparity and the discrimination against gender-specific healthcare needs.
I think there are two issues here. The very first section of the US Code, which has definitions that apply to the entirety of the Code unless there are specific definitions elsewhere, includes this definition of person: “the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” I don’t see how this would, or should, automatically give all constitutional protections that refer to “persons” to corporations etc. (if for no other reason than that the Supreme Court hasn’t seen fit to cite it for that proposition), but it does affect laws enacted by the federal government.
What this means, however, is that we’re facing the challenge of making clear what applies only to living, breathing human persons and what applies to the broader category. Just as an easy example, I don’t see the need to have two different laws forbidding fraud, but I do have a problem with applying First Amendment protections, other than freedom of the press, to non-humans.