Corporations Are Not People

UPDATE-   Check out this piece by Tom Goldstein on the Montana case from SCOTUSblog (thanks to Rick Hasen’s Election Law Blog)

The Supreme Court of the United States has entered a stay of the Montana Supreme Court‘s determination that the century-old Montana Corrupt Practices Act was necessary to prevent corruption of state elections by corporate spending. In taking the action based on its decision in Citizens United v. FEC, the Supreme Court did not examine the substantial factual record in the Montana case or give the State a hearing. Nevertheless, the Court will decide whether to allow a petition for certiorari and may consider the case further.

In an extraordinary criticism of a case decided only two years ago, Justice Ginsburg, joined by Justice Breyer,  took the opportunity to call for a re-examination of Citizens United:

Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U.S.  __ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” Id., at __ (slip op., at 42. A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.

The Montana Supreme Court had cited the state’s demonstration of corruption caused by corporate spending in elections, and the effect of Montana law in preventing that corruption, as a reason to distinguish the state’s law from the federal Bipartisan Campaign Reform Act struck down in Citizens United.

Here’s the Supreme Court’s Order.

Montana Attorney General Steve Bullock has filed the State’s brief opposing the effort of a corporate-front group to have Justice Kennedy and the US Supreme stay and summarily reverse the Montana Supreme Court’s recent decision upholding the state’s Corrupt Practices Act. The Act has banned corporate election spending in Montana for more than a century.

Montana argues that the State has a right to file a brief and be heard before the Supreme Court uses Citizens United to invalidate a law that has “safeguarded the republican form of government in Montana for more than a century.”   The brief is here.

In the meantime, Free Speech for People, Common Cause and others are calling on the Supreme Court to allow Montana a hearing and to consider reality and evidence. More here.

Background on the case is here, here, here, and here.

Huffington Post is running a great piece on the People’s Rights Amendment from my brother Ben Clements (attorney, former Chief Legal Counsel to the Governor of Massachusetts, former federal prosecutor, and all-around great guy).

The key point:

In short, the elimination of corporate constitutional rights will not change the results in cases in which the constitutional rights of natural persons — individually or in groups or associations — are infringed. But it will change the results in many of the increasingly common situations in which purported corporate constitutional rights are invoked to strike down laws that regulate economic activity without infringing the constitutional rights of any natural persons, such as restrictions on corporate funding of electioneering; prohibitions on marketing of cigarettes to children; regulations of off-label drug marketing; and disclosure requirements concerning the nature of the products marketed and sold by corporations.

Read more here

The New Mexico Senate has voted 20-9 to condemn Citizens United v. FEC and demand that Congress send a Constitutional amendment to the states for ratification that will reverse the Supreme Court’s decision. The Senate vote follows a similarly lopsided vote in the New Mexico House in favor of overturning Citizens United‘s fabrication of corporate rights to spend unlimited money in elections. Free Speech for People joined Common Cause New Mexico, the Green Chamber of Commerce, and many other organizations and people to win this important step. Here’s Common Cause New Mexico’s press release:

President Obama has thrown in the towel and capitulated to the domination of our elections and government by SuperPACs, funded by corporations and millionaires. And his campaign, of course, is not “coordinating” it’s only “signaling”.

A possible silver lining: Now that the candidates and both major parties have accepted the reality that they are owned by corporations and the wealthy, is fundamental reform at last possible?

It may be. Among the other signals, President Obama appears to be endorsing a Constitutional amendment solution that will overturn Citizens United and related doctrines that have improperly twisted the Constitution of “We the people” into a protector of privilege.

Now, will the Republican candidates join him in recognizing the reality of what is needed to restore republican democracy in America?

UPDATE:  George Zornick at the Nation has a good piece on these developments.

And here are reactions from People for the American Way, Public Citizen,  and the Wall Street Journal.

Corporations Are Not People makes the Bill Moyers top ten “Must-Read Money-In-Politics Books list!  The book also is the feature of this week’s American Constitution Society Book Talk section. Check it out here (and excerpt below). And earlier this week, I joined E.J. Dionne, Melanie Sloan of CREW and the Brennan Center’s Monica Youn at the Center for American Progress to discuss Citizens United Two Years Later. Campus Progress covered the event here.

And back in Massachusetts, the Constitutional amendment to overturn Citizens United is getting some serious attention, with State senators and representatives, supported by the Attorney General and thousands of citizens of the Commonwealth,  moving a resolution through the State House. Check out this story and if you’re in Massachusetts, come to Clark University in Worcester on Monday to the event below.

If you’ve read the book, let me know what you think. Looking forward to working with you!

ACS Book Talk excerpt:

As the nation increasingly embraces the Constitutional amendment solution to Citizens United, a new proposition that the notorious decision actually had nothing to do with “corporate personhood” is emerging. Last week, for example, my friend Kent Greenfield cast a skeptical eye on the “anti-corporate activists” who support a Constitutional amendment to reverse Citizens United in the Washington Post. (My own view competed the next day in a Boston Globe op-ed with Congressman Jim McGovern, the lead sponsor of the People’s Rights Amendment.)

As an initial matter, no one should assume that the 79% of Americans who favor a Constitutional amendment to reverse Citizens United are “anti-corporate,” whatever that means. After all, 1000 business leaders have called for a Constitutional Amendment, as have legal scholars, lawyers, former state Attorneys General, serving Attorneys Generals, dozens of cities and town representative bodies and millions of Americans.

The argument that corporations in fact are “people” under the Constitution, or at least that we ought to continue the tacit amendment of the Constitution that pretends that they are, at least has the virtue of frankness. Less credible, in my view, is the argument that Citizens United and the larger “corporate speech” theory under the First Amendment is not really about corporate rights at all, but merely about protecting associational rights of people.

More Here