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Constitutional amendment is needed

Several recent Supreme Court actions, including the January 2010 “Citizens United” decision and the Court’s refusal this year to hear an appeal from a lower court decision that declared Montana’s state election finance laws to be unconstitutional, have wiped out the federal laws that limited corporate and union spending on elections and likely will soon do the same with Tennessee’s election finance laws.

It looks like it will take a Constitutional amendment to change this situation. An amendment is needed to clarify that the right to free speech guaranteed by the First Amendment applies only to actual humans (“natural persons”) and not also to corporations and organizations (which are treated as legal “persons” for some legal purposes, such as contracts).

Because I believe that we need campaign finance limits to preserve public trust in government (including local government), I have signed on to the following pledge that Common Cause and other groups are asking elected officials and candidates to sign, at the website Amend2012.org united4thepeople.org (edited August 17, 2012):

I, Ellen Smith, declare my support for amending the Constitution of the United States to restore the rights of the American people, undermined by Citizens United and related cases, to protect the integrity of our elections and limit the corrosive influence of money in our democratic process.

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3 Comments

  1. nuclear.kelly says:

    Kudos to you.

  2. Barton Smith says:

    You wrote, “An amendment is needed to clarify that the right to free speech guaranteed by the First Amendment applies only to actual humans (‘natural persons’) and not also to corporations and organizations (which are treated as legal ‘persons’ for some legal purposes, such as contracts).”

    If the “right to free speech” guaranteed by the first amendment applies only to people, how does “freedom of the press” apply to newspapers and other commercial media outlets, which are predominantly corporations and rarely individuals, and “freedom of religion” apply to churches, which are organizations?

    I don’t see any foothold in the wording of the First Amendment for the assertion that freedoms elucidated in the amendment are forsaken when an individual meets with other like-minded individuals. Individual and collective freedoms are intertwined. In the Citizens United case, the SCOTUS ruled that collectives such as corporations and trade unions have the same standing as individuals when speech is political. I don’t see how the freedom of speech could possibly be “clarified” by adding an amendment that abridges the very same right as it is granted in the first amendment.

    The majority of the money contributed by corporations and trade unions to political action organizations is spent on advocacy for issues of importance to those organizations rather than on direct contributions to elected officials and candidates for office. This brand of political advocacy is as old as our constitutional government, and the unrestricted freedom to contribute money for political advocacy has played a large part in the unprecedented 224 years of “peaceful transition of power” our government has enjoyed. Restricting opportunities for individuals and collectives to redress grievances is not good for democracy because it leads to a government with unassailable power.

    We should be mindful of the possible perverse effects of good intentions and should therefore refrain from asking “elected officials and candidates” to take an insidious pledge such as the one advocated by Common Cause.

  3. Ellen Smith says:

    Thanks for your thoughtful comments, Barton. I’m not a constitutional lawyer — I’m concerned about the effect of the court decisions on trust in government, and I think that it likely will require a constitutional amendment to cure the situation. Clever legal minds are needed to figure out just how to do this.

    As I see it, protections for political speech by organizations are basically protections for the individual people who constitute the organizations (even though the people may be anonymous), not protections for the organization itself. I think that any amendment should only apply to free speech and not to the other parts of the First Amendment (the parts that that deal with freedom of the press, free exercise of religion, peaceful assembly, and petitioning the government).

    Legal aspects of “commercial speech” are something I know less about, but I understand that the First Amendment right to free speech affects the rights of businesses in connection with advertising. It would be important not to mess up that area of the law.

    I’m curious about the facts behind your statements that “the majority of the money contributed by corporations and trade unions to political action organizations is spent on advocacy for issues of importance to those organizations rather than on direct contributions to elected officials and candidates for office” and that “this brand of political advocacy is as old as our constitutional government, and the unrestricted freedom to contribute money for political advocacy has played a large part in the unprecedented 224 years of “peaceful transition of power”…”.

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