In Search For Solutions to SCOTUS Ruling, Congress Has Failed to Directly Address Corporate Personhood Doctrine

BUZZFLASH NEWS ANALYSIS
by Meg White

Every once in a while, Congress acts swiftly. But sometimes legislation alone is just not enough to get the job done.

It's hard to keep up with the flurry of bills proposed in the wake of the disastrous Citizens United decision by the Supreme Court last month which allows virtually unlimited corporate spending on political campaigns. One congressman, Rep. Alan Grayson (D-FL), has introduced six separate bills aiming to reduce the influence of corporations on American politics, which he wrapped together in a "Defend Our Democracy" package. Fixes to the problems posed by the ruling in Citizens United include giving shareholders a say in how a CEO spends the money of a given corporation and refocusing elections on public financing.

Yet the consensus seems to be that while legislative fixes will help stem the tide of corporate spending this election year, the root of the problem is much more systemic, requiring a constitutional amendment to remedy.

"I think we need a constitutional amendment to make it clear once and for all that corporations do not have the same free speech rights as individuals," Sen. John Kerry (D-MA) said in his opening statement at a Senate Rules Committee hearing on the subject this week. "Big issues of fairness and justice sometimes demand nothing less... The government should stop tinkering around the edges of a system that is broken beyond repair."

Despite Kerry's stirring rhetoric, the tinkering continues.

Yesterday afternoon, I sat in on a press call (on which I may or may not have been the only member of the press present) with Rep. Donna Edwards (D-MD), Voter Action's John Bonifaz and Jeff Clement, the general counsel for Free Speech for People. The call was organized in order to allow for questions about the constitutional amendment introduced by Edwards and House Judiciary Chair John Conyers (D-MI).

While she said she'd signed on in support of some of the aforementioned  legislative fixes, Edwards worried they "will end up being litigated" due to the very broad manner in which the court ruled in this case.

"We do need a constitutional amendment to cure the problem the court has left us with," Edwards said. The amendment gives Congress the authority to regulate the political expenditures of corporations.

What the amendment does not do is get to the heart of what in many ways lead to the Citizens United decision in the first place: the doctrine of corporate personhood. The notion that corporations have the same First Amendment rights of individuals goes back to the 1800s, when a Supreme Court ruling was misinterpreted to grant such rights to companies. Subsequent court decisions have given us corporate speech rights and other expansions without much of an increase incorporate responsibility, paving the way for the Citizens United ruling.

Short of Supreme Court action, which is unlikely with the composition of the court as it stands, corporate personhood is now so entrenched as to require a constitutional amendment to overturn. Edwards affirmed for me that the constitutional amendment she and Conyers introduced will not address this larger issue.

"We really wrestled with this question," Bonifaz added. In the end, he said, "we narrowed our focus in this resolution." He expressed support for dealing with corporate personhood at some point in the future, and added that "what Congresswoman Edwards has done is to show leadership and deal directly with the Citizens United case."

While there doesn't appear to be a constitutional amendment introduced into the congressional record that would deal specifically with this issue, the advocacy group Public Citizen has written one up.

In their "Three Ways to Curb Excessive Corporate Money in Politics," Public Citizen includes a constitutional amendment that is more comprehensive than the Conyers/Edwards fix. Were you to sign the "Free Speech for People Amendment Petition," you'd be calling on Congress to "pass and send to the states for ratification a constitutional amendment to restore the First Amendment and fair elections to the people."

In a phone conversation with Public Citizen President Robert Weissman this morning, he told me he wasn't disappointed in the limited scope of the Conyers/Edwards amendment.

"We're in an early stage in the effort to have a constitutional amendment that not only overturns Citizens United, but gets to the underlying issues," he said. In the short term, the measure that has been introduced will "help drive forward that process and make credible the idea of a constitutional amendment."

In the press call yesterday, Edwards said there "can be, should be, must be a grassroots movement" of Americans calling on their representatives in Washington to sign on to her amendment. "The American people share our concern that corporations are playing an undue role."

Let me first say that I applaud Edwards' leadership on this; it's got to be tough to be among the first lawmakers to call for a change in the constitution. But looking at the meat of what she's proposing, I worry that getting Americans to rally behind this particular amendment could be tough. Proposing that Congress, one of the least trusted institutions in America right now, should have to ability to tell corporations how much they can spend on political speech seems like a tough sell.

Plus, the proposal could be easily skewed. What's stopping Republicans from calling it a conflict of interest, seeing as Congress would be regulating the funds corporations would spend on their own campaigns?

By contrast, Public Citizen's language seems much easier to defend. While Weissman still stands behind Public Citizen's proposed amendment, he says they support all "efforts to spark the debate."

Weissman hopes this will help "begin the conversation" about what can be a controversial issue: amending the constitution, a document that becomes more sacred in the minds of Americans every day. One need look no further than the signs at a Tea Party rally to see the unfailing, and sometimes blind, devotion to this document. And you can count Public Citizen in the groups that revere it.

"We value and treasure the constitution," Weissman said. "We are supporting an amendment to restore the First Amendment and I think that's a discussion to be had... what's called for is really restoring what the First Amendment is supposed to be about."

Though several actors in the Tea Party movement have expressed dismay over the Citizens United ruling, having a nuanced discussion about corporate rights and political speech could be tough considering the GOP talking point that the ruling supports free speech.

Weissman conceded that Republicans in Congress could be a problem for framing, "and the tea bag movement is a contradictory movement." But this is still a story about corporations having the same rights as people. "That's a story that may resonate... if they're able to look at it honestly and not try and run it through a partisan lens."

Though the Conyers/Edwards amendment may come off as disappointing to some observers concentrating upon the problem of corporate personhood, Weissman cautioned against oversimplification. This is just one of many efforts, and "there are going to be others soon," he said, noting that some on the Hill are looking at ways to incorporate Public Citizen's amendment language.

Meanwhile, Edwards herself said yesterday that though the effort at the moment is a focused one, "I'm willing to work to strengthen this resolution if need be."

I say the need indeed be.

BUZZFLASH NEWS ANALYSIS

If you want to learn more about the doctrine of corporate personhood, check out Thom Hartmann's seminal book on the subject: Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights.