Taking Constitutional Day Seriously- And A New Challenge to Citizens United

Constitution Day commemorates the anniversary on September 17, 1787 of the conclusion of the Constitutional Convention at Independence Hall in Philadelphia. The Constitution was not ratified without vigorous national debate and the addition of the first ten Amendments, our BilThe US Constitutionl of Rights.  And,  of course, with the addition of seventeen more amendments (including a new one in every decade of the 20th Century, except the 1940s and 1980s), the Constitution continues to be written by every generation of Americans.

Here’s a piece that Bob Monks and I have on the American Constitution Society blog, Let’s Take Constitution Day Seriously. We note the contingency of the republican form of government, and the challenge for our generation to “keep it”, as Ben Franklin put it 226 years ago after the Convention.

At Free Speech For People on Constitution Day, we rolled out a promising new initiative to overturn Citizens United and to challenge the increasing tendency of activist courts in recent years to fabricate new corporate rights. Check out the Legal Advisory Committee coming together in this work— an impressive group, including a former Chief Justice of the North Carolina Supreme Court and former Justice of the Montana Supreme Court.

Here’s the announcement from Free Speech For People:

FOR IMMEDIATE RELEASE – September 17, 2013

Contact: Ryan O’Donnell

(413) 335-9824


New Legal Initiative, Advised By National Network of Law Professors, Former Judges & Attorneys, To Fight Citizens United

Includes Fmr State Supreme Court Justices James Exum, Jr. (North Carolina) and James Nelson (Montana)

Free Speech For People, a national non-partisan organization working to overturn Citizens United v. FEC, has launched a new Legal Advocacy Program, backed by an advisory committee of respected law professors, former judges and attorneys from across the country. The initiative seeks to restore Constitutional jurisprudence based on human, rather than corporate rights, and republican citizenship rather than unlimited money in politics.

Free Speech For People announced the new program on Constitution Day (September 17th) which commemorates the two hundred and twenty sixth anniversary of the signing of the Constitution at the conclusion of the 1787 Convention in Philadelphia.

Advisory Committee member James Nelson, who recently retired as a Justice of the Montana Supreme Court, says: “Citizens United embraces a right found nowhere in the Constitution:  a right to use institutional mega-money to influence elections and silence voices of individual small contributors and voters.” “Worse,” he added, “this kind of jurisprudence presents a clear and present danger for the majority of states, like Montana, where voters elect their judges and justices. Make no mistake — the effects of Citizens United will dominate judicial elections.”

James Exum, Jr., former Chief Justice of the North Carolina Supreme Court and another Advisory Committee member says:Citizens United was wrongly decided and weights the electoral process far too heavily in favor of corporations, which have the ability to amass huge sums of money, at the expense of the vast majority of citizens without that ability.  For those states, like mine, which subject judges to periodic popular elections, the ruling threatens the integrity of our courts.”

The Advisory Committee will work with Free Speech For People co-founders John Bonifaz, who serves as Executive Director, and Jeff Clements, who serves as Board Chair and President and is the author of Corporations Are Not People (with a foreword by Bill Moyers) (Berrett-Koehler, 2012).

“Americans across the political spectrum know that “corporate rights” and unlimited money in our elections are wrong, and are coming together to ensure that Citizens United will not stand. We are grateful to see so many outstanding legal experts and jurists join in this work to renew our democracy of free and equal citizens,” says Clements.

Bonifaz added: “In the face of new efforts by global corporations since Citizens United to strike down public interest laws on ‘corporate speech’ grounds, we look forward to defending in court that fundamental principle of American self-government: of, by, and for the people.”

The new initiative will engage in advocacy and public education to push back in the courts against the US Supreme Court’s ruling in Citizens United v. FEC and the fabricated doctrine of corporate constitutional rights and to advance corporate charter reform in the states. The program also will serve as a legal resource for the growing movement for a constitutional amendment to reverse Citizens United.

The Free Speech For People Legal Advocacy Program is the latest addition to the expanding challenges to the 2010 Citizens United decision, the 5-4 Supreme Court ruling that struck down longstanding campaign finance laws and opened the door to unlimited spending by corporations, unions, and the super-wealthy.

Members of the Legal Advocacy Committee include:

  • Lawrence Anderson, Montana trial attorney and member of the Board of Governors of the American Association of Justice
  • David Ciepley, Laurance S. Rockefeller Visiting Faculty Fellow, Princeton University, Associate Professor of Political Science, University of Denver
  • John Coates, Professor of Law, Harvard Law School
  • Lisa Danetz, Senior Counsel, Demos
  • James Exum, Jr, former Chief Justice of the North Carolina Supreme Court
  • Caroline Fredrickson, President, American Constitution Society
  • Lisa Graves, Executive Director, Center for Media and Democracy
  • Daniel Greenwood, Professor of Law, Hofstra Law School
  • Thomas Joo, Professor of Law, University of California, Davis, School of Law
  • Cyrus Mehri, Founding Partner, Mehri & Skalet, PLLC.
  • Robert A.G. Monks, Author, Founder, Lens Governance Advisors
  • James Nelson, former Justice of the Montana Supreme Court
  • Eva Paterson, Co-Founder and President, Equal Justice Society
  • Peter Pease, Founder, Law Offices of Peter Pease
  • Tamara Piety, the Phyllis Hurley Frey Professor of Law, University of Tulsa College of Law
  • Jamie Raskin, Professor of Law, American University Washington College of Law
  • Katie Redford, Co-Founder and Director, EarthRights International
  • Dale Rubin, Professor of Law, Appalachian School of Law
  • Steven Shiffrin, Professor of Law, Cornell University Law School
  • Jennifer Taub, Associate Professor of Law, Vermont Law School
  • Gerald Torres, Bryant Smith Chair in Law, The University of Texas at Austin, School of Law

About Free Speech For People

Free Speech For People is a national non-partisan organization, launched on the day of the US Supreme Court’s 2010 ruling in Citizens United, which works to challenge the misuse of corporate power and restore republican democracy to the people.  Free Speech For People has served as a catalyzing and leading force in the growing movement across the country for a constitutional amendment to overturn Citizens United and reclaim our democracy.  The organization has also played a leadership role in the courts by helping to defend Montana’s century-old law barring corporate money in elections, resulting in a victory before the Montana Supreme Court and the first test case on Citizens United to reach the US Supreme Court.

About the Movement to Overturn Citizens United

Sixteen states have formally called for a constitutional amendment to overturn Citizens United and to restore democracy to the people.  In addition, nearly 500 cities, towns, and counties, including New York, Los Angeles, Chicago, and Philadelphia have called for an amendment, and more than 2,000 elected officials nationwide are on record supporting one.


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Senators Explain Constitutional Amendments to Overturn Citizens United

The proposed Constitutional amendments (here and here) overturn Citizens United by permitting the people to limit spending and contributions in elections and by ending the judicial fabrication of “corporate rights” in place of human rights under the Constitution.

Read letters (with links) from Free Speech For People to Senators Tester and Udall here and here.

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US Senators From Montana and New Mexico Lead With Key Constitutional Amendments

Senator Jon Tester from Montana and Senator Tom Udall from New Mexico have joined to introduce the two key Constitutional Amendment resolutions to overturn Citizens United.  Emphasizing that “corporations are not people,” Senator Tester introduced a Constitutional amendment that would reverse the  fabrication of corporate Constitutional rights

Here’s Senator Tester:

Joining Senator Tester, New Mexico Senator Tom Udall introduced the Constitutional amendment language that would permit Congress and the States to limit election spending and contributions, overturning the 5-4 Citizens United decision that deprived Americans of the right to do that.

Both Constitutional amendment provisions have been introduced in the House by Representative Jim McGovern of Massachusetts, and have dozens of co-sponsors.

Free Speech For People has more details here.

Also, Representative Nolan has combined the two key provisions into one resolution. Move to Amend has details here.

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With Cross-Partisan Support for Constitutional Amendment on Citizens United, Delaware Becomes State #15

both parties to blameA big week in the growing movement of Americans across the political spectrum to overturn Citizens United, and it’s only Tuesday. Yesterday, Public Citizen announced that Delaware, the state of incorporation for many of the largest corporations, has become the 15th State to call for the 28th amendment to the U.S. Constitution. A majority of the Delaware legislature, including Democrats and Republicans, signed this letter.

Then, today Free Speech For People rolled out a report documenting the votes and statements of more than 100 Republican lawmakers across the country who have stepped up to challenge Citizens United and support the 28th Amendment. To those who know this effort crosses all political lines, this may not seem news, but the mainstream media have mistakenly tended to consider opposition to Citizens United through the partisan lens with which they are so comfortable. This report may help set right that mistake.

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The Corporate Surveillance State and Citizens United


The new information on out-of-control NSA surveillance illustrates again how the corporate surveillance state grows out of the money corruption of our politics. The program seems to have been sold to the government by Booz Allen, a corporation dependent on billions of dollars of taxpayer’s money (a multi-billion dollar Fortune 500 with “98% of its revenue from the government”? Could that be right?). According to this New York Times article, after making billions from American taxpayers, Booz Allen is taking the secret program to the global marketplace:

“They are teaching everything,” one Arab official familiar with the effort said. “Data mining, Web surveillance, all sorts of digital intelligence collection.”

Serious question: What does it mean that the person– Edward Snowden– who told the American people the truth about what our government is doing fled to exile and faces prison, while the corporation that built the program on billions of taxpayer dollars is out shopping it to governments around the world?

Here’s “Influence Explorer” with some political spending/lobbying/government contract data on Booz Allen worth checking out.

Original post- pre NSA leak- below.


Once again we are learning of a massive spy operation on the American people by our government and Verizon and other telecom corporations.  For years, the global telcom corporations, including AT&T, Verizon and others, have secretly colluded with the government’s national security apparatus to spy on Americans and others around the world.

This corporate-government surveillance is illegal. Yet in 2008 when groups such as the Electronic Frontier Foundation and the human beings whose rights were violated brought a lawsuit for the illegal conduct, Congress quickly passed an immunity law, retroactively preventing any recourse against the corporations that violated the law.

What does all this have to do with the movement for a 28th Amendment to reverse Citizens United and end the creation by an activist judiciary of corporate Constitutional rights?

In short: anyone who thinks that we must pretend that the Constitution creates rights for corporations, notwithstanding the words, history, meaning, and purpose of the Constitution to the contrary, is not paying attention to reality.

Some defenders of the kind of theories of “corporate speech” or other Constitutional rights that led to the disaster of Citizens United, argue that corporations must have Constitutional rights in order for the rights of Americans to be secure against government overreach.

And foxes should guard chicken-houses.

More than a year ago, in a piece called “Why Americans Should Support the People’s Rights Amendment,” Ben Clements, a former federal prosecutor, Free Speech For People Board member (and, full disclosure: my brother) responded to this “corporations will save us” argument. He explained how the illegal spy operation in the Bush Administration (which we now have learned was continued or even extended by the Obama Administration) illustrates the folly of relying on Google, AT&T or any other corporation to protect Constitutional rights or limit government violation of the Constitution:

[In the] corporate rights world, your private information is protected from government intrusion only until Google (or Amazon, Verizon, AT&T, Apple, CVS, or any number of other corporate entities who maintain private information about all of us) decides to turn it over to the government. To suggest that we can and should rely on for-profit corporations to protect our constitutional rights misconstrues the nature and role of corporations as much as it misconstrues the nature and purpose of constitutional rights. To cite just one example, the willingness of the telecommunications corporations to blatantly violate federal wiretapping laws at the request of the Bush administration (and in order to participate in highly lucrative government contracts) demonstrates that allowing constitutional rights of real people to become dependent on supposed constitutional rights of corporate entities is ultimately a vision in which only the corporations have constitutional rights.

Over and over again, we see that global corporations do not assert rights on behalf of real people but in active opposition to those rights. And we repeatedly see corporations and the government collude to violate the human rights of real people, just as in the repeated, on-going spy operation of the telecom corporations and the NSA.

Then, when illegality is discovered, and Americans seek recourse, the corporate-government collusion moves into high gear to block justice.

Telecom corporations brought to court to explain the illegal surveillance? Congress quickly enacts a retroactive corporate immunity law and the cases are dismissed.

Monsanto and the federal Food & Drug  Administration collude to prevent Americans from getting the truth about genetically modified organisms in our food? Courts strike down state GMO labeling laws and Congress jumps to enact the Monsanto Protection Act to create immunity for Monsanto.

Firearms manufacturers brought to court for conspiring to evade gun safety laws and common law duties of care, resulting in death and injury to hundreds of thousands of Americans? Congress quickly enacts a retroactive corporate immunity law and the case is dismissed.

Americans know that this big corporate-big government collusion is not serving the interests of Americans or protecting our Constitutional rights. That’s why fourteen states have now called for a Constitutional amendment to reverse Citizens United. That’s why in ballot initiatives such as that in Montana, 75% of the people vote across all party or ideological lines to end the wrongful fabrication of Constitutional rights for corporations and the crippling of our ability to get big money out of our elections and government.

So when someone tries to sell the line that Constitutional limits on government overreach means we must somehow let corporations have the human rights of our Constitution, don’t buy it. Instead, remember three words (and there are lots more): Verizon. AT&T. Monsanto.

In the end, it turns out that preservation of freedom and self-government for human beings really does require that the sovereignty-based rights in our Constitution must be reserved for human beings, not the corporate entities that are creations of, and colluders with, the state.

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In Cross-Partisan Resolution, Illinois Becomes 14th State to Demand Constitutional Amendment to Reverse Citizens United

Illinois has become the 14th State to demand a Constitutional amendment to reverse the Supreme Court’s ruling in Citizens United v. FEC. That 5-4 decision ruled that the American people may not enact limits on spending in federal, state or even local elections or on contributions to “independent” campaign groups. The Citizens United decision also ratified the newly fabricated doctrine of “corporate speech” rights, comparing corporations to “a disadvantaged person.”

Legal News Line has a story on the Illinois action here.

And on the expanding abuse of the First Amendment by corporations, see this piece from the New Republic, The Right to Evade Regulation, How Corporations Hijacked the First Amendment


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Maine Overwhelmingly Passes Cross-Partisan Resolution For Constitutional Amendment On Citizens United v. FEC

nunst030Maine has become the 13th State to enact a  resolution demanding the 28th Amendment to the United States Constitution that will overturn the Supreme Court’s disastrous misinterpretation in the 2010 Citizens United v. Federal Election Commission case. In that 5-4 decision, the majority held that unions and corporations – – even the largest, multi-billion dollar global corporations – – have a Constitutional right to spend unlimited money in American elections, no matter what American voters think about that. In Citizens United the Court also affirmed again its idiosyncratic dictate that unlimited election spending of billions of dollars by individuals, labor unions, or corporations does not have any corrupting or corrosive effect on republican democracy in America.

Maine joins the 500 cities and towns and a dozen states in passing a 28th Amendment resolution. Other states include Montana and Colorado (where in the November elections, 75% of the voters passed a ballot initiative calling for the 28th Amendment), West Virginia, New Jersey, Massachusetts, California, Connecticut, Hawaii, Vermont, Rhode Island, Maryland and New Mexico. Several versions of the proposed Constitutional amendment are before Congress (with more than 100 co-sponsors in total). Free Speech For People has all the amendment resolutions bills here, and breaks down the different amendment approaches from the last Congress in 2012 here.

The Constitutional amendment resolution in the Maine Legislature passed overwhelmingly, with lopsided votes bringing Republicans, Democrats and Independents together.  John Nichols, writing in the Nation, explains: 

When the Maine State House voted 111-33 this week to call for a constitutional amendment to overturn the US Supreme Court’s ruling in Citizens United v. Federal Election Commission, the support for this bold gesture was notably bipartisan. Twenty-five Republicans joined four independents and all eighty-two Democrats to back the call.

Similarly, when the Maine State Senate voted 25-9 for the resolution, five Republicans joined with nineteen Democrats and independent Senator Richard Woodbury to “call upon each Member of the Maine Congressional Delegation to actively support and promote in Congress an amendment to the United States Constitution on campaign finance.”

Peter Schurman, Campaign Director at Free Speech For People, helped with the Maine effort and said:

This terrific bi-partisan vote is a huge win, not only for Maine, but for all Americans. Republicans, independents, and Democrats alike are clamoring for a constitutional amendment to reverse Citizens United and bring back real democracy.  We’re thrilled that Maine is now helping lead the way forward.

Andrew Bossie, of Maine Citizens For Clean Elections, one of the leaders of this cross-partisan effort in Maine, said:

For months Maine people have taken action by passing town resolutions, signing petitions, and contacting lawmakers calling for a constitutional amendment that ensures government accountability to voters, not campaign donors. With Maine’s leadership, we are one step closer to making this a reality.

The statement from Maine Citizens For Clean Elections and Free Speech For People, from which these quotes are taken, is here.

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“A Corporatist State Or A Government and A Nation of People?”

Twixt Darkness and That Light: “A Corporatist State or A Government and A Nation of People?”

Citizens Dis-United: Passive Investors, Drone CEOs, and the Corporate Capture of the American Dream, by Robert A.G. Monks.

Who said the following?

“Democratic capitalism is threatened as never before . . . not from without but from within.”

“Government capture [by corporations and CEOs] is the American condition.”

Judicial effort to defend Citizens United v. FEC “borders on the clinically obtuse or borderline deranged.”

“America’s corporations today enjoy an absolute reign. They and they alone have the power to control the rules under which they function. They have the first say on the allocation of public resources and they have exempted themselves from nearly all financial obligations to the nation and its people. This is not a prediction of what’s to come. This is the present state of affairs, the America we live in right now.”

An Occupy Wall Street activist? A libertarian Tea Party member? Someone ‘who just doesn’t understand how corporations and the economy work?’

Robert A. G. Monks No, they are the most recent words of Robert Augustus Gardner Monks, who in his eight decades has been CEO of an oil and coal business, a corporate lawyer, a founder of Institutional Shareholder Services, Inc. and several other businesses dealing with corporate governance, a state Chair of the Republican party and Republican candidate for U.S. Senate, an author of several books on corporate governance and shareholder democracy, a member of the Boards of Directors of numerous large corporations, a trustee of retirement systems, and a public servant in the Administrations of Presidents Ronald Reagan and George H.W. Bush.

Now he’s out with a new book, Citizens Dis-United: Passive Investors, Drone CEOs, and the Corporate Capture of the American Dream. It is a clear, reasoned, and passionate call to see the danger, and to act before it’s too late.

This book is compelling and urgent. It reflects a great decency, patriotism, and honesty. Bob Monks tells the truth, even about where he thinks he has been wrong.

Monks has done more, and knows more, about shareholder democracy and corporate governance than just about anyone. Yet the crisis of our democratic capitalism has reached the point where even Monks says that corporate governance is a “myth,” a “chimera at best” and “a fraud at worst.” And what about “shareholder democracy” as a solution to the problem of Citizens United and the corporate capture of our government, elections and culture?

I still believe that in an ideal world, or even a rational one, an empowered and unencumbered electorate is the best remedy to tyranny of any kind, but current circumstances give me no choice but to abandon a position on which I have staked a good portion of my professional life. The atom of ownership is too smashed, and the proxy system through which corporate voting is carried out has been too corrupted to give any hope of a democratic resolution to the multiple ills of corporate governance.

Citizens Dis-United smashes myths: The myth that the growth of corporate profits can be assumed to be always of worth to America or Americans; the myth that corporate spending is “speech” or that republican government can survive Citizens United and the corporate capture of the government’s branches; the myth that anyone or anything is now in place to ensure that corporations function as intended, to serve a public purpose or even to serve the interest of the purported owners, the shareholders.

Monks shows how “America’s CEO’s have staged a corporate coup d’etat.” The CEOs, “not the titular owners of the businesses, decide where and how company resources will be deployed, what laws will be evaded in the pursuit of short-term gain, what offshore havens profits will be stashed in to avoid taxation, and critically, how lavishly the CEOs themselves will be compensated.”

It should go without saying but it needs to be said again, as Monks does, that this is not about “destroying the corporation but taming it and harmonizing its vast power with human values.”

So what to do?

If you’ve read Corporations Are Not People, you know what I think: (1) A national movement for a Constitutional amendment to reverse the power dynamic of Citizens United and Buckley v. Valeo that accelerates the crisis of democratic capitalism and blocks any chance at real reform; (2) campaign finance reform; (3) legal advocacy in the courts to challenge the corporate capture of our judiciary and Constitutional jurisprudence; and (4) a reform of state and federal corporate laws to better ensure accountability and social benefit.

In Citizens Dis-United, Monks does call for overturning Supreme Court decisions such as Citizens United but his primary and admirable focus is his passionate plea to those who own massive amounts of public company shares to step up to their responsibilities. He calls for decisive and prompt action from those who, like himself, have been blessed by the previous success of American democratic capitalism, who know the truth about corporations and who have access to the few remnant levers left that might yet function.

He identifies the foundations, the pension funds, and the great universities that own hundreds of billions of dollars in shares in corporations that are now run amok. He urges “those fortunate and able enough to prosper in our society [to] stop taking the ‘commons’ for granted, and [to] begin committing their time, values, and integrity to the functioning of companies of which they are the owners.”

Finally, Monks writes of shame. That shame, that “great and public transgression . . . to have known vast harm was being done and to have the power, standing, and resources to intervene, and yet to have failed to act. That is a shame not easily overcome, for the individual or for the society that allowed it to happen.”

In one sense, Monks is shaming those with power and standing (the “great and the good,” as Monks calls them, perhaps with tongue in cheek), and he is trying to move them to action. Yet, this should not be misunderstood as mere finger-pointing at others. Indeed, Monks describes this book as an “atonement for my own shame.”

And he should not feel alone there. One challenge of citizenship in a nation dedicated to a government of the people is that our pointing of fingers or blaming of others only goes so far. In the end, every one of us, including those of us who are not among the leaders of foundations, pensions, and universities, are in the same position of knowing that ‘vast harm was being done’, and having something, big or small, to offer to help. Will we?

I do have a couple of notes of reservation about Citizens Dis-United. First, the emphasis on calling for rescue from the Gates Foundation, Warren Buffett, Harvard University and the like is a little reminiscent of Ralph Nader’s brilliant semi-satire “Only the Super-Rich Can Save Us!” We do need an enhancement of responsibility and virtue from those who have riches and power. But we need that from all quarters, and, in my view, any lasting success for the American experiment and human freedom requires engagement of the problem of corporate power at all levels of American society.

My second reservation is not about anything Monks says but about the unfortunate cover. A leader of the conservative Constitution Party once said that Americans “have more to fear from the U.S. Chamber of Commerce than from al qaeda.” Nevertheless, a cover with smoke and fire rising from the Capitol with a wing-tip clad CEO hitting the trigger is a little much. Don’t let the cover dissuade you from turning to the wisdom within.

Monks has accomplished a great deal in this relatively short book. I can’t help thinking that not the least of Monk’s accomplishments in Citizens Dis-United might be a personal reconciliation with his roots. Monks sometimes describes himself as a “traitor to his class,” one who exiled himself in Maine from the Boston Brahmin world in which he was raised. With Citizens Dis-United, though, Monks reminds us of the best traits of that lost world: duty, trusteeship, responsibility; a resistance to placing the acquisition of wealth above virtue and other human aspirations, and a distaste for extravagance; an undying dedication to the commons, and to the commonwealth and republican government; and yes, a sense of shame.

Citizens Dis-United is not perfect. Bob Monks is not perfect. None of us is perfect. But we are human, we are Americans, and we all can do something beyond ourselves to tackle the very real and present danger that Monks describes so well. If you think the times don’t merit dramatic calls for selfless action, read Monks’ book as soon as possible. It’s available here: http://www.amazon.com/dp/1939282101.

You can find out more about Monks and his work here: http://www.ragm.com/

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West Virginia Enacts Resolution For A Constitutional Amendment To Overturn Citizens United

West Virginia has become the twelfth state to enact a resolution calling for a Constitutional amendment that will reverse Citizens United v. FEC.

The West Virginia resolution, taking note of the strong cross-partisan opposition unlimited election spending and to the fabrication of “corporate rights” in the Constitution, calls on Congress to send to the States for ratification “a constitutional amendment overturning the United States Supreme Court’s Citizens United v. Federal Election Commission ruling and related cases.”

Following an approach endorsed by 75% of Montana voters in the November election, the West Virginia resolution states that the needed Constitutional amendment will:

(1) “establish that corporations and unions are not entitled to the same rights and protections as natural persons under the Constitution”; and

(2) “assure the power of the federal, state and local governments to limit, regulate and require disclosure of sources of all money spent to influence elections.”

The text of the West Virginia resolution is pasted below and also can be found here.

Calling upon the United States Congress to propose a constitutional amendment overturning the United States Supreme Court’s Citizens United v. Federal Election Commission ruling and related cases.

Whereas, In 2010, the United States Supreme Court issued its ruling in Citizens United v. Federal Election Commission that enabled corporations and unions to spend unlimited amountsof money to influence the outcome of our elections; and

Whereas, A subsequent ruling, Speechnow.org v. Federal Election Commission, opened the door for individual donors to spend unlimited amounts as well; and

Whereas, The use of so-called Super PACs by wealthy individuals and special interests nationally has driven up the cost of elections to over $6 billion in the federal elections alone and reduced local voices in the democratic process; and

Whereas, In 2012, based upon Citizens United, the U. S. Supreme Court struck down a century-old long-standing Montana campaign finance law, denying states the right to regulate their elections in accordance with their experience of the corrupting influence of money in politics; and

Whereas, The people of West Virginia and all other states should have the power to limit by law the influence of money in their political systems; and

Whereas, On Election Day, 2012, over six million voters across the United States had the opportunity to vote on state and local ballot measures, including the states of Montana and Colorado, calling for a constitutional amendment to limit money in politics, including the entire states of Montana and Colorado, and all proposed resolutions passed with overwhelming and bipartisan support, averaging seventy-five percent of voters in favor; therefore, be it

Resolved by the Senate:

That the Senate calls upon the United States Congress to propose a constitutional amendment overturning the United States Supreme Court’s Citizens United v. Federal Election Commission ruling and related cases; and, be it

Further Resolved, That the West Virginia Senate supports an amendment to the United States Constitution to establish that corporations and unions are not entitled to the same rights and protections as natural persons under the Constitution; and, be it

Further Resolved, That such an amendment should assure the power of the federal, state and local governments to limit, regulate and require disclosure of sources of all money spent to influence elections; and, be it

Further Resolved, That the West Virginia Senate requests that the West Virginia Congressional Delegation support such an amendment, work diligently towards its passage and vote at all stages to advance such legislation in the Congress; and, be it

Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the Vice President of the United States and the President pro Tempore of the United States Senate, to the Speaker of the House of Representatives, to the majority and minority leaders of both houses of Congress and to each United States Senator and Member of the House of Representatives from West Virginia.

A press release from Public Citizen is here.

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Upcoming 28th Amendment & Democracy Events

Check here for upcoming events.

Directly challenging the 5-4 Supreme Court decision in Citizens United v. FEC and the usurpation of human rights by global corporations, eleven states and more than 500 cities and towns have now enacted resolutions calling on Congress to pass the 28th Amendment and send it to the states for ratification. Several more states are poised to act, and Congress is getting the message, as various amendment bills are being introduced in the House and Senate to join what promises to be a historic national debate (for three examples of recent amendments, see here, here and here.)

JeffClements20130320 MCCE_Flyer-7 copy

To discuss this growing campaign, I’m going to be in Maine, New York, Colorado and Oregon in the coming weeks with Free Speech For People, Maine Citizens For Clean Elections, Slow Money, the Illahee Lecture Series, the American Constitution Society, and more (all events are listed here). If you can, come on out for the conversation and hard work of overturning Citizens United and restoring American republican democracy.  Hope to see you and to work with you to preserve government of, for and by the people.

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The Constitution & Legislation, Corporate “Persons” & Human Persons

Wonk alert: This may be a piece only a lawyer could like but I thought it might be worthwhile to delve into the different meaning of the word “person” as used in the Constitution compared to word “person” as used in enacted laws or regulations.


I’m prompted to do so by someone who recently sent me a copy of the “Dictionary Act”. That’s the first section of the United States Code, which is the compilation of all of the federal laws (statutes) duly enacted by Congress. Section 1 provides some general “rules of construction” for judges and the rest of us to interpret and apply these laws.

The Act (1 U.S.C. Sec. 1) provides helpful guidance that“unless the context indicates otherwise,” words that are plural include the singular, a reference to the masculine gender includes the feminine, and “the words ‘insane’ and ‘insane person’ shall include every idiot, insane person and person non compos mantis,” among other examples.

I think that the person who sent the Dictionary Act to me was trying to make a point in defense of Citizens United and to suggest that my book title (“Corporations Are Not People”) may be off-base. As my correspondent pointed out, Congress itself has defined “person” to include corporations. Here’s the Dictionary Act again:

The words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.

The implication sought to be drawn, I think, is that if Congress has defined the word “person” to include corporations for most of our history, the Supreme Court is correct to extend the metaphor into interpretation of the word “person” in the Constitution, and thus to equate corporations with human beings for purposes of protecting Constitutional rights.  Such an analysis would be a mistake.

The key point is the difference between (1) our Constitution, and its proper interpretation, and (2) our laws enacted by legislators, whether in Congress or in the States. State or federal law cannot change the meaning of words in the Constitution. (This point is discussed at more length in Chapter 3 of my book).

The Dictionary Act and many other statutes include corporations within the defined meaning of the word “person.” The Constitution, however, is different. When the Constitution uses the word “person”, “people” or “citizen,” the words refer to human beings not corporations. More on that point in here, especially at p. 10-15, and in Justice Hugo Black’s 1938 dissent in Connecticut Life v. Johnson [“I do not believe the word ‘person’ in the Fourteenth Amendment includes corporations.”].

This seemingly contradictory approach to interpreting the same word (“person”) to have different meanings in different places (i.e. the Constitution versus enacted laws or regulations) makes perfect sense.

First, we should recall that a corporation is a legal structure for doing business, created and defined by state legislatures (and occasionally, Congress) in order to advance what the state deems to be in the public interest. Corporations do not exist without government action; government (laws enacted by legislatures) make incorporation possible, and define what a corporation is and what it can and cannot do.  Unlike other associations or other ways of doing business, a corporation cannot exist by private arrangement.

While it is necessary for government to enact an incorporation law to permit corporations to exist, many good reasons support our modern practice of permitting ready incorporation for business or other activity. The corporate legal entity is supremely effective at bringing together and channeling ideas, capital, and labor to make a productive, growing enterprise. The corporate form streamlines contract making and enforcement; encourages, secures and rewards investment; enables risk-taking as well as sustained operations, expansion and innovation over long periods of time; and can efficiently spread risk (and reward) over many diverse shareholders. All this and more makes incorporation a very useful economic policy tool to encourage and reward investment, innovation, job creation and economic growth.

None of that, however, can turn a corporation into a Constitutional person (as opposed to a “person” as defined by state or federal statutes).

There are lots of good reasons why states and the federal government enact laws that say, in some instances, that the word “person” includes corporations. For example, the Clean Water Act prohibits unpermitted discharge of toxics and pollutants into the waters of the United States by any person. Congress wrote the Clean Water Act to create civil and criminal penalties for “any person” who violated the law, and intended to include corporations.

Similarly, it makes sense as a matter of policy to treat a corporation like a “person” when a corporation makes a contract, or is sued or brings a lawsuit, or engages in any one of many activities that state law may authorize a corporation to do. We do this because we have decided as a matter of state law that the “person” metaphor can help make the corporation better serve as a tool of public policy and economic activity.

The Constitution is different. Our Bill of Rights is not a “policy choice” that government, or even a temporary majority of people or our elected representatives, can decide upon. Rather, the Bill of Rights is the very definition of the relationship between we human beings and our government. The First Amendment and our other rights in the Constitution are the “carve-outs” for the natural human rights that we insist on withholding to ourselves when we consent to the Constitution’s plan of government in America.

When we decide that under our state or federal laws, corporations are “persons” that can be prosecuted (or that can contract, or be sued, and so on), that decision cannot transform corporations into “persons” under the Constitution’s protections of rights, whether rights of “life,” “liberty,” “property” and “equal protection” for all “persons,” or any others. (See, e.g., the Fourteenth Amendment). We can change state laws of incorporation anytime we can muster a majority in the legislature for any particular change.  We do not change the Constitution anytime a legislature, let alone the legislature of Delaware or any other state alone, decides it might be efficient to do so.

The Constitution cannot be changed by state or federal laws or majority vote but only by the process of Constitutional amendment under Article V of the Constitution. The people have never added corporations to the definition of “persons” in the Constitution by using that amendment process (a vote of two-thirds of Congress, ratified by three-quarters of the States, or a Constitutional convention). As the Supreme Court declared in the 1850s when rebuffing early corporate efforts to create corporate rights, “State laws, by combining large masses of men under a corporate name, cannot repeal the Constitution.”

To appreciate the distinction between “person” under state or federal law, and “person” under the Constitution, consider Delaware’s incorporation law. Delaware law, as in other states, declares that corporations can exist for a defined period of years or may have “perpetual existence.” If a majority of the Delaware legislature wanted to delete that last part of the law, and simply declare that corporations may exist for a period of twenty years, they could do so. In contrast, neither Delaware, nor any other state or federal legislature in America can decide that people shall have a limited period of existence. No matter how good the policy justification for such a law, that law obviously would violate the Constitution’s due process clause protecting the life of all persons.

Corporations, then, are policy tools, not people or holders of Constitutional rights. As economic tools, corporations are highly effective. Yet the same traits that make corporations such useful economic policy tools can also make them dangerous to republican government and democracy if people and lawmakers do not watch and restrain abuses. Corporations can aggregate immense power, corrupt government, drive down wages, trash public resources, concentrate markets to squeeze out competitors and more.

The need to maintain this balance, and to maintain the necessary distinction between Constititutional “persons” and legislative “persons”, is captured by one of the Founders of the nation. James Wilson, a Pennsylvanian, had signed the Declaration of Independence, served in the Continental Congress, helped draft the Constitution, and was nominated by George Washington to be one of the first six Justices on the Supreme Court. (That’s him at the top of this post). He well expressed the prevailing view that corporations can be useful tools but must always be carefully controlled by the people:

A corporation is described to be a person in a political capacity created by the law, to endure in perpetual succession…. It must be admitted, however, that, in too many instances, those bodies politick have, in their progress, counteracted the design of their original formation…. This is not mentioned with a view to insinuate, that such establishments ought to be prevented or destroyed: I mean only to intimate, that they should be erected with caution, and inspected with care.

See James Wilson, Collected Works of James Wilson, Vol. 2. Ch. X, Of Corporations, (ed. Kermit L. Hall and Mark David Hall) (http://oll.libertyfund.org/title/2074/166648/2957866, accessed 2009-07-22)

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#ForwardOnClimate, Environmental Catastrophe & Citizens United

Americans from all over the country are coming to Washington on Saturday to demand action on the climate crisis. Here’s information about that from 350.org, from the Sierra Club. and the Hip Hop Caucus. If you can be there, be there.

As Miles Mogulescu has described, Americans get the connection between the climate crisis and the democracy crisis. We now know that without action by all of us, the future is lost, or at least very ugly.

The dual crisis symbolized by Citizens United and the Keystone XL Pipeline has been a long time coming. Indeed, it was a bold, unprecedented challenge by powerful oil companies and utilities that marked one of the earliest milestones in the story of the corporate take-over of our democracy that I describe in my book, Corporations Are Not People. In a 1980 Supreme Court decision written by Lewis Powell (more on that here) , the Court ruled that it was illegal – – a violation of corporate speech rights – – for states to try to limit monopoly utility corporations from promoting the consumption of energy. 

Over the next few decades, international corporations used this new and radical  “corporate speech” doctrine in the courts to wipe out energy, environmental, food and health, financial and other laws, culminating in Citizens United. In some ways, Citizens United, stating that corporations are “voices”, even “disadvantaged persons,” that cannot be prevented from spending money on elections and politics, is a monstrously logical conclusion of these cases going back to Central Hudson. If one accepts that global corporations are merely “speakers” and “persons” under our Constitution, then a “right” to spend unlimited political money makes as much sense as a “right” to consume unlimited fossil fuels and emit unlimited pollution.

And with Citizens United unleashing unlimited corporate money in politics, the oil companies, the coal companies, and the rest of the brutally damaging fossil fuel industry, have been  among the most aggressive in deploying the Court’s gift of even more unbalanced power. As I wrote recently for Orion Magazine’s blog:

But the proper metaphor for money in politics is power—not speech. Power is the reason Monsanto and other corporate giants spent $46 million to smother a GMO-labeling ballot initiative in California. Power is why Chevron contributed $2.5 million to Speaker John Boehner’s Super PAC to hold a majority for climate obstructionists in Congress. And power is why Saudi oil interests used the American Petroleum Institute (and their huge stakes in international corporations, such as News Corporation) to sway various election contests.

No campaign in November was too obscure for this corruption. Chevron deceptively funneled $1.2 million into local city council races in Richmond, California, a community of 100,000 people. One reason: Chevron runs a refinery there, one that has long plagued the community, and one that, following an explosion in August, sent thousands of people to area hospitals. Control of the Richmond city council will be helpful to Chevron.

Americans have had enough and are pushing back. That’s what the 28th Amendment movement to overturn Citizens United is all about. That’s what the campaign to revoke the Delaware corporate charter of the criminal Massey Energy Corporation is all about. And that’s what this weekend’s #ForwardOnClimate action is all about.

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