Move To Amend: Corporations Are NOT People, My Friend
Source: Workers Independent News
By Doug Cunningham
[Richard S. Russell]: “As far as we can tell there’s like five old white guys on the Supreme Court are the only ones who really believe that corporations are people and so our objective as a movement is to get the U.S. Constitution amended to say that corporations are not people , money is not speech. The government may, in fact, regulate political spending.”
Wisconsin Move To Amend volunteer Richard S. Russell. On this election day as real people cast their ballots they make their way to the polls through an avalanche of corporate money. Russell and his fellow activists at South Central Wisconsin Move To Amend are working to get a constitutional amendment that overturns Citizens United – the U.S. Supreme Court decision giving corporations the same rights as people. Russell says it is a tall order, but it is doable.
[Richard S. Russell]: “It is an ambitious agenda. We are under no illusions that it’s going to be easy. But we have tremendous public support behind it and we think that it can be done. We have fifteen or sixteen states which have already petitioned Congress to enact such an amendment. Now they haven’t all said exactly the same thing, and Wisconsin is not among those. But there is a groundswell of pressure from the citizens to do something about it.”
The day after election day the Russell and others supporting Move To Amend will turn out for a “Roaring 2000’s” themed “friendraiser” in Madison at the Speakeasy at Cargo Coffee East. Just so ya know, to get into the speakeasy you’ll need these code words: “Corporations are not people, my friend.”
Read more: http://laborradio.org/2014/11/move-to-amend-corporations-are-not-people-my-friend/
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In 2017, President Cruz signs an executive order confiscating the property of a particular corporation, Democratic Underground LLC. DU's lawyers run to court. They point out that, under the Due Process Clause of the Fifth Amendment, such a confiscation can't be done without due process of law (e.g., a fine imposed after a trial). The judge agrees and is about to nullify President Cruz's order, and probably award DU its attorney's fees because the government's position is so outrageous.
But wait! Here comes the Attorney General, Orly Taitz. She points out that, in 2016, the 38th state ratified a constitutional amendment declaring that corporations are not people. She further points out that the relevant passage in the Constitution reads, in pertinent part, "
N)or shall any person ... be deprived of life, liberty, or property, without due process of law...." As a result of the success of Move To Amend, Democratic Underground LLC is no longer a person and is therefore no longer entitled to the protection of the Due Process Clause. The judge agrees with her. President Cruz's order stands.
Further elaborating: The Due Process Clause of the Fifth Amendment restricts the federal government. State governments are covered by the Due Process Clause of the Fourteenth Amendment, which also uses the word "person" in conveying rights. The decision in Democratic Underground LLC v. United States is (correctly) seen as license for right-wing state governments to abuse their powers in retaliating against corporations they don't like.
Now, with that context, I repeat my question. Should the government be able to take a corporation's property without due process of law?
Warning: This is a trick question. Beyond the issue of taking property, the Due Process Clause of the Fourteenth Amendment is the vehicle for making the Bill of Rights applicable to the states. If the word "person" in the Constitution doesn't include a corporation, then states are also free to prohibit corporations from criticizing the Republican Party, they're free to send police in to search corporate property at will (we don't need no stinkin' warrant), etc.
Yes. The corporate personhood amendment is both too broad and too narrow. It's too broad because, as I pointed out, it allows abuse. It's too narrow because, triggered as it is by a focus on the ill effects of Citizens United, it ignores the ill effects of McCutcheon -- a later Supreme Court decision that voided spending limits as to individuals (i.e., "natural persons", the term sometimes used in the law to distinguish humans from corporations).
The solution is an amendment along the lines of what's gained considerable support in the Senate, though of course short of two-thirds. The amendment, which I think has a majority behind it, empowers the federal government and the states to impose reasonable regulations on spending on political campaigns.
People criticize the Supreme Court decisions because, the critics charge, money is not speech. The difficulty is that money is speech, but the spending is also conduct. Conduct can be regulated even if there's a damping effect on speech. For example, going into a courthouse wearing a jacket that says "Fuck the Draft" is protected speech, and the protester's criminal conviction was overturned on First Amendment grounds (Cohen v. California); but burning a draft card to protest the draft is conduct that can be punished, because the government (at a time of conscription) has a legitimate interest in requiring draft-age men to possess and carry a draft card (United States v. O'Brien). That's the basis on which Citizens United and McCutcheon should have been decided -- that campaign spending is conduct that can be regulated, just as draft-card burning can be, even though there's an expressive element. An amendment could establish that principle, as to spending by corporations and by individuals.
There was at least one famous case. I don't know about "regular basis" because it goes too far back.
Contrary to the view of some well-meaning but ill-informed progressives, Citizens United did not establish the doctrine of corporate personhood. It's much older than that. In fact, it's somewhat older even as to political spending. In First National Bank of Boston v. Bellotti (1978), the Supreme Court held that a Massachusetts law that restricted corporate donations in ballot initiatives was a violation of the First Amendment.
The earliest recognition of the concept, however, came in Trustees of Dartmouth College v. Woodward (1819). Dartmouth was a private college. The government of New Hampshire enacted a law that effectively placed it under public control, e.g. by reinstating a college president who had been controversially deposed and by creating a state board that could veto the decisions of the college's board of trustees. This would have overridden the college's charter. The state didn't outright confiscate all of the college's property, but did remove some corporate books and records. The Supreme Court held that this was unconstitutional. The decision emphasized the Contract Clause ("No State shall ... pass any ... Law impairing the Obligation of Contracts...."
and treated the college's charter as a contract.
I'm not enough of a legal historian to know how common it was for state legislatures to attempt the kind of overreaching that was smacked down in Dartmouth College.
Dartmouth College had a pre-Revolutionary charter from King George III that was treated as being protected under the Contract Clause, but most contemporary corporations couldn't make that argument. Under the "corporate personhood" amendments being pushed by Move To Amend and others, those corporations would be vulnerable. I don't know whether an amendment would lead to a different result if, following ratification, New Hampshire again attempted to take over Dartmouth College.
Clarence Thomas does not believe corporations are people?
Quelle surprise! 