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Redressing the Distortion of Elections and Political Speech by Corporations

· by Karl Auerbach · Read in about 4 min · (834 Words)
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(This was originally posted on Oct 14, 2011.)

Proposed Amendment to the United States Constitution To Redress the Increasing Distortion of Elections and Political Speech by Corporations and Other Aggregate Forms

Proposed Text

Corporate and other aggregate forms of organization are neither Persons nor Citizens under this Constitution and shall have neither protections, rights, nor legal standing under this Constitution

This Amendment shall not be construed to deny or disparage the power of Congress or the Several States to enact legislation that defines rights, powers, limitations, liabilities, and standing of such corporate and other aggregate forms of organization

The Problem

The conservative wing of the US Supreme Court has elevated several corporate rights to at least the same degree of Constitutional protection as the rights of natural (living) people.

There is little or no precedent for the creation of these rights in corporations.  The idea of the modern corporation did not arise until nearly a century after the writing and adoption of the Constitution.  And the 14th Amendment predates the rise of the modern corporation by at least a decade.

In other words, these corporate rights are the product of judicial legislation.

Corporations exist because the states of the United States found it useful to give people a legally recognized structure to coordinate large enterprises and to apportion control and liability.  A corporation is nothing more than a product of legislation intended to facilitate group liability and responsibility.  Corporations obtain their existence and their powers from state legislation.

The Supreme Court took what the states created as a form of accounting convenience and imbued it with Constitutional grade powers such as the power to engage in political activities, essentially allowing corporate management to use assets owned by corporate shareholders to pursue whatever political goals management might desire.

These Supreme Court decisions diminish the rights of natural, human people.

Corporate speech is loud speech.  Corporate speech is like a band, with amplifiers cranked up to 11, at family dinner gathering – the corporate speech drowns out all normal conversation.

The US Supreme Court’s Citizens-United decision effectively replaces reasoned discussion and compromise among human citizens with corporate money expended in pursuit of corporate goals.

Because cases such as Citizens-United are based on Constitutional grounds they can not be modified or adjusted either by the US Congress or by the states under whose statutes corporations obtain their existence.  The only way to modify corporate rights of this nature is through a Constitutional amendment.

Corporations are not the only form of collective activity that is recognized by law.  There are unions, foundations, educational institutions, churches, and more.

There are many kinds of corporations and aggregate forms – News Corp and General Motors, a labor union and a non-profit theater company.  The best road for the future is one that allows for flexibility so that differences may be recognized and honored.  In this regard it is wise to remember the principle that in the United States the individual States are “laboratories" in which different approaches may be tried and tested.

The Approach

Here We Propose an Amendment To the United States Constitution that declares that aggregate forms of organization – a phrase intended to encompass corporations, unions, and the like – do not receive rights from the United States Constitution.

These entities ought to have rights.  But they ought not have them from the United States Constitution.  Thus the second part of the proposed Amendment empowers Congress and the states to define appropriate rights and obligations for these aggregate forms.

Because these rights and obligations would be defined by Congress and the states they could be changed as times change or as flaws are discovered.  And these rights could be tailored and adjusted to fit each particular kind of situation.

Moreover this approach allows for the rights of natural people and corporations to follow different trajectories. Under the proposed Amendment recognition by a court of a new nuance of rights for a natural person would not automatically result in an equal new right for a corporation.  Instead the decision whether to make that extension would be in the hands of Congress and state legislatures.

Under this proposed Amendment the State of Delaware might declare that a corporation chartered under the laws of Delaware may give time, people, resources, or money to political activities only if clearly disclosed to shareholders and only upon periodic consent of a super majority of its shareholders (who are, after all, the owners of the corporation.)

Or the State of New York might chose to adopt a similar rule but provide that corporations that publish news – on paper or on TV or the net – might have a rebuttable presumption of the consent of their shareholders.

Of course, many details would have to be resolved by Congress and the state legislatures.  But that’s what Congress and state legislatures are supposed to be good at.  Certainly those bodies are more flexible and able to craft solutions than an inflexible Constitutional dictate of the Supreme Court.