Features » September 19, 2011
Corporations Are Not People
A movement builds to fight corporate rule and amend the Constitution.
Media corporations have no motive to publicize that their bloodless pursuit of political control, and the resulting profits, have now been canonized in law.
Corporations, in the Supreme Court-sanctioned guise of people, hold our democracy in thrall. Their vast wealth underwrites the campaigns of federal and state legislators. Dependent for their political survival on corporate largess, most politicians are pushed into becoming servile apologists or eager shills.
The Supreme Court began endowing corporations with the rights of people in 1886 with Santa Clara County v. Southern Pacific Railroad Company. This slow slide was a radical departure from the Declaration of Independence under which people are “endowed by their creator with certain unalienable rights”–rights enumerated in the Constitution. Fast forward to 1976, when the Court ruled in Buckley v. Valeo that when it comes to political campaign spending money equals speech. Ergo, the right to spend money to influence elections cannot be unfairly curtailed. As Justice William Rehnquist wrote in his majority opinion, “[V]irtually every means of communicating ideas in today’s mass society requires the expenditure of money.”
The contorted logic culminated on January 21, 2010, when the conservative majority on the Supreme Court ruled in Citizens United v. Federal Election Commission that corporations (along with unions and nonprofit organizations) were endowed with the same free speech rights as flesh-and-blood people. As persons, corporations–no matter how metaphorical their personhood–can spend as much money as they like to support or defeat candidates.
In a political system where profit-driven corporations control both the nation’s dominant political parties and the legislative agenda, it is unlikely that any policy initiatives that disadvantage corporate interests will thrive. Citizens United creates a rocky road indeed for universal healthcare, legislation to combat climate change, a clean energy policy, an economy geared toward butter rather than guns, a tax structure that provides funding for human needs, an agricultural policy that serves family farmers, ethics legislation to regulate lobbyists, prohibitions against environmental toxins and an economy that provides a living wage to all willing workers.
Would you let your sister marry a corporation?
By failing to distinguish between people and property, the 1857 Dred Scott decision and Citizens United 163 years later form a set of ironic bookends. In the same way that Dred Scott v. Sandford held that slaves and their descendants could never be citizens, Citizens United holds that corporations and their subsidiaries will always be persons with constitutional rights.
And by curtailing transparency, the decision “profoundly affected the nation’s political landscape,” the Center for Responsive Politics wrote in its analysis of the November 2010 general election. Citizens United allowed nonprofit 501(c)4 and 501(c)5 organizations “to spend unlimited amounts of money running … political advertisements while not revealing their donors.” Among the center’s other findings:
“Corporate donations are likely higher than reported, as conservative nonprofit groups spent $121 million [in the 2010 general election] without disclosing where the money came from.”
Since the 2006 midterm elections, the percentage of spending from undisclosed donors has risen from 1 to 47 percent.
In 2010, 72 percent of political ad dollars from outside groups would have been prohibited in 2006.
Opposition to Citizens United is growing. Organizations, including Free Speech for People, Move to Amend, Center for Media and Democracy, Common Cause, People for the American Way, Public Citizen, Progressive Democrats of America, and Program on Corporations, Law and Democracy (POCLAD), have coalesced under United for the People (united4thepeople.org).
Although they differ in scope, detail and strategy, they agree: “Citizens United v. FEC has focused America’s attention on the dangerous influence of corporate power in our democracy … We support a range of short-term solutions to mitigate the damage, but we know that the only real remedy is the amendment of the Constitution in order to restore the democratic promise of America.”
Under the United for the People umbrella, two general strategies have emerged.
The first is a nonpartisan effort by 501(c)3 nonprofits to educate the public and legislators about the need to amend the constitution to allow Congress to regulate how money is raised and spent in elections. “Citizens United has put a price tag on our democracy and we have to undo it,” says Marge Baker, executive vice president for policy and programs at People For the American Way. It is joined in this strategy by Common Cause, Public Citizen and Free Speech for People. As 501(c)3 nonprofits, these groups are forbidden by law from using the ballot box to put pressure on legislators.
The second strategy, organized under Move to Amend, is building a popular movement to challenge corporate rule. This progressive coalition sees Citizens United as “only the most recent and the most egregious example of corporations overturning democratic laws at the local state and federal level,” says Move to Amend organizer David Cobb. “It is a mistake to oppose Citizens United only on the basis of campaign finance reform.”
Endorsers of this strategy include Center for Media and Democracy, Progressive Democrats of America and POCLAD. (Full disclosure: I am one of the “initial signatories” of the Move to Amend pledge to “ensure that as many people, organizations, and communities as possible learn of the Court’s decision, and of how that decision prevents the American people from truly governing ourselves.”)
One way to counter Citizens United would be to pass a constitutional amendment that would reassert the right of both federal and state governments to regulate how money is raised and how it is spent on elections.
“We think this approach is more direct and deals with the problem at hand… [the] corporate stranglehold over elections,” says Baker, of People For the American Way.
On July 13, Rep. Kurt Schrader (D-Ore.) introduced H.J. Res. 72, which proposes a constitutional amendment “giving Congress power to regulate campaign contributions for Federal elections.” Schrader’s resolution will likely languish in the GOP-controlled House Judiciary Committee. In the Senate, Sens. Max Baucus (D-Mont.) and Tom Udall (D-N.M.) might introduce similar legislation, according to Baker.
In the same vein, Rep. Donna Edwards (D-Md.) will introduce an amendment to the Constitution similar to the one she proposed in February 2010, permitting Congress and the states “to regulate the expenditure of funds by corporations engaging in political speech.” Illuminating how reluctant Congress is to bite the hand that feeds it, Edwards 2010 proposed amendment garnered 26 co-signers but was stalled in the then-Democratic-controlled House Judiciary Committee.
Which raises the question: How much difference would such constitutional amendments make? Members of Congress have been bloviating campaign finance reform for decades, but have done little that actually made a fundamental difference.
Baker, who helped pitch the United for the People’s big tent, is optimistic. “We support any organizing around any approach … so that when we see GOP presidential hopeful Mitt Romney make statements like ‘corporations are people,’ there is pushback.”
Free Speech for People’s strategy, while focused on the campaign finance system, is both broader in scope than that of People for the American Way and less partisan. It aims “to mobilize support around the country for Congress to pass and send to the states for ratification a constitutional amendment to restore democracy for the people,” says John Bonifaz, the group’s co-founder and director. Free Speech For People is a 501(c)3 organization with offices in Amherst, Mass., Seattle and Washington, D.C.
Bonifaz is a longtime advocate of campaign finance reform. In 2003, he represented members of Congress and families of soldiers in a federal suit against President George W. Bush, arguing Bush did not have the authority to invade Iraq because Congress never declared war.
Free Speech For People’s amendment to the Constitution reads, in part: “People, person, or persons as used in this Constitution does not include corporations … [which] are subject to such regulation as the [actual] people, through their elected state and federal representatives, deem reasonable.” Which in real-speak simply means that real people get to regulate pretend people. More than 30,000 real people have endorsed this amendment at FreeSpeechForPeople.org.
Free Speech for People is pursuing a multi-pronged strategy to garner support for the People’s Rights Amendment that includes:
organizing former attorneys general, law professors and former government attorneys to encourage members of Congress to sponsor the amendment.
partnering with the American Sustainable Business Council to encourage business leaders to support the amendment.
mobilizing public support at the local and state level. In Massachusetts, nine towns have passed People’s Rights Amendment resolutions, while state-level resolutions are being promoted in New Mexico, Massachusetts and Washington.
educating people that corporations are chartered by the states, which can revoke charters that are abused. Free Speech for People is working with Appalachian Voices and Rainforest Action Network to target Massey Energy, the notorious coal company headquartered in Delaware. To that end, the groups have asked Attorney General Beau Biden to “revoke Massey Energy’s corporate charter.” According to Biden’s spokesman, the request is under review.
filing amicus briefs in court, like the one with the Montana Supreme Court, in which a state judge used Citizens United to invalidate Montana’s Corrupt Practices Act–a 1912 law passed to control undue political influence by the copper industry.
Free Speech for People is unique, says Bonifaz, because it is “strictly nonpartisan and transpartisan. We do not believe that this is a progressive campaign. It is an American campaign. We have reached out to elements of the Tea Party,” arguing that whether big or small, government “should be of, for and by the people.”
The most prominent right-wing convert to the cause is Michael Ostrolenk, a libertarian, strict constructionist and founder of the Liberty Coalition. On his website, WhoHasRights.org, Ostrolenk is sponsoring a survey that asks: “Are corporations and unions entitled to the same inalienable Constitutional rights as we are as individual human beings?”
Bonifaz says that polls conducted for his group by Hart Research show support across the political spectrum for taking on corporate personhood and restoring human democracy for flesh-and-blood people. For example, 82 percent of Americans think Congress should limit corporate campaign spending. And 79 percent of respondents opposed personhood for corporations and favored a constitutional amendment to overturn Citizens United.
Building a movement
Move to Amend’s David Cobb agrees with Bonifaz that public support for controlling corporations is widespread, but his group is pursuing a less legalistic and more explicitly progressive approach.
“Amending the Constitution is a tactic, not an ultimate goal,” says Cobb, who was the Green Party’s 2004 candidate for president. “If we were to focus our efforts as if there were just a legal problem it would be a mistake, because corporations use the Constitution to overturn not only campaign finance laws, but also environmental protection laws, consumer safety laws, worker protection laws and public-health laws.”
More than 130,000 people have signed Move to Amend’s online petition at MoveToAmend.org. The coalition effort claims more than 20 state and local affiliates, with new groups being organized in a dozen states. “Part of our strength is that we are not in D.C. People are hungry for a progressive vision of politics and culture,” says Cobb, who spent August organizing around the country.
“The problem is not merely corporate money in elections,” he says. “It is not even Citizens United. It is a legal doctrine that allows the ruling elites to use the mechanism of the corporation to overturn efforts to democratically control the economy of the United States. Our goal is to help build a U.S. democracy movement.”
Move to Amend takes as its inspiration the grassroots mobilization that defined the Nuclear Freeze Movement of the late ’70s and early ’80s to rid the world of nuclear weapons and United for Peace and Justice’s anti-Iraq war organizing of the past decade. Neither reached its stated goal.
Move to Amend-endorsed resolutions have passed in Madison and Dane County, Wisc., (by 84 and 78 percent, respectively), in Humboldt County, Calif., and 10 towns in Pennsylvania and two in Maine. Recently, resolutions have been introduced in Missoula, Mont., and in the states of Vermont and Minnesota. On August 16, the City Council of Boulder, Colo., voted to put the Move to Amend resolution on the November 1 ballot.
“Systematic social change requires a broad and deep and militant social movement, coupled with an electoral arm that represents that movement at the ballot box,” says Cobb. “The Freeze and United for Peace and Justice won the culture war, but failed to codify their victories under laws, because they were not electing people on the strength of their movement.”
Some progressives question what exactly UFPJ won and whether it is a model worth emulating. Activist Matt Stoller, a one-time senior policy advisor for former Rep. Alan Grayson (D-Fla.), has described UFPJ as part of a “protest industry … made up of those who decided that participation in the system was immoral” because they “have seen ‘compromise’ many times before and think they know where it leads.” And In These Times Senior Editor David Sirota has called UFPJ demonstrations “boisterous but ephemeral displays whose chaos and lack of message reinforce a self-defeating fringe image.”
Cobb, trying to avoid these pitfalls, says that Move to Amend encourages its supporters to “engage in electoral politics in a serious manner.” During the 2004 presidential campaign, he angered some Green Party faithful with his strategy of not campaigning against Kerry in battleground states.
If Move to Amend has its way, abolishing corporate constitutional rights would become a litmus test for any candidate. “We need to tell candidates: If you do not support a constitutional amendment to abolish corporate constitutional rights, you do not support me and therefore I do not support you,” he says. “The movement is about power, about overturning corporate rule, it is not about a single issue like campaign finance reform.”
Cobb draws a distinction between Move to Amend’s approach and that of Bonifaz’s Free Speech for People. “The grassroots progressive community is further along than the lawyers or the inside-the-Beltway crowd,” he says. “They are ready for a confrontation with corporate America both at the ballot box and in the media. It is a battle for our culture and our future.”
Serfs ‘R’ Us
Lisa Graves sits on the Move to Amend executive board. She turned down overtures to apply for a job in the Obama White House and in 2009 left the Beltway to head the Center for Media and Democracy in Madison, Wis. Graves doesn’t eschew cooperation. “I have worked hard to make sure that Move to Amend has an ongoing collaboration with People for the American Way, Common Cause and Public Citizen, rather than foster an inside-the-Beltway/outside-the-Beltway dissonance,” she says.
“While we all have slightly different views on the constitutional amendment, the shared view is that people need to be aware of what the court has done, and that those people will form a movement to put pressure on politicians to act on this issue.”
Yet far too few citizens have heard of Citizens United and how it granted corporations the rights of people. And fewer still are outraged.
Perhaps that is because groups like the American Civil Liberties Union filed an amicus brief on behalf of Citizens United (a wacky group that opposes “one-world government”) but failed to publicize its support. Or maybe because the AFL-CIO is likewise silent about the amicus brief it filed–somehow thinking that the millions it pours into the campaigns of Democrats can counter the gazillions donated by the corporate sector.
But most likely the largest factor is that mainstream media outlets are owned by corporations that are less than eager to highlight how their bloodless pursuit of political control, and the resulting profits, have been canonized in law by the Supreme Court. When the corporate press does mention Citizens United, it is in the framework of campaign finance, not corporate rule.
According to Hart Research, only 22 percent of voters have heard of Citizens United.
The other 78 percent no doubt include the kind of media consumers who rely on corporate organs like Time magazine. In the July 4 “10th Annual History Issue,” Time Managing Editor Richard Stengel wrote a cover story about the Constitution for the magazine titled, “Does it Still Matter?”
Nowhere in his 10-page opus does Stengel, with all his pretensions to scholarship, mention the Citizens United ruling. A danger, former Rep. Grayson recognized when he said: “Citizens United is the worst Supreme Court decision since the Dred Scott case. It leads us all down the road to serfdom.”
This report was produced as part of a collaborative investigative effort to expose the influence of corporate money on the political process by members of The Media Consortium, in partnership with the We the People Campaign. To read more stories from this series, visit www.CampaignCash.org, or follow #CampaignCash on Twitter.
Joel Bleifuss, a former director of the Peace Studies Program at the University of Missouri-Columbia, is the editor & publisher of In These Times, where he has worked since October 1986.