Constitutional amendments to overturn Citizens United

by Walter Olson on April 23, 2013

They “propose giving Congress unchecked new power over spending on political speech” [John Samples, Cato Policy Analysis] More on Citizens United here, here, here (Democrats’ platform), here, here (Michael Kinsley: case was “correctly decided”), here, here, here (Wendy Kaminer), here, here, here, here (unions as beneficiaries), even more, and on the “corporations aren’t people” sound bite and related rights-abolishing proposals, here, here, here, and here.

P.S. Self-recommending: forthcoming Michael McConnell in YLJ on Citizens United.

{ 10 comments }

1 OBQuiet 04.23.13 at 1:48 am

I have never understood how treating corporations (a collection of investors) differently than other similar collections makes sense. Why are unions (collections of workers) and non-profits like the Sierra Club (collections of concerned citizens) more worthy of speech protection?

Particularly unions since you may have no option about joining and seeing your money spent while at least you can unload your stock in a corporation or let your membership lapse in a non-Profit.

2 Farside 04.23.13 at 10:17 am

Corporations aren’t people.
Unions aren’t people.
The Sierra Club is not a person.
The Senate is not a person.

All — affiliations, alliances, bands, bunches, circles, clans, cliques, clubs, coalitions, companies, confederacy, confederations, congress, cooperatives, corporations, crews, crowds, families, federations, fellowships, fraternities, gangs, guilds, leagues, mobs, orders, organizations, outfits, partnerships, pools, rat packs, ring, society, sororities, syndicates, tribes, troops, unions — are not people.

Especially, the Scientologists are not people (They’re from the planet Xenu.).

3 William Nuesslein 04.23.13 at 10:18 am

Corporations have a duty to maximize return on shareholders investment. The political actions and speech of corporate management are highly constrained thereby.

When one looks at an individual transaction, a cell phone contract for example, the corporation has legal and financial resources out of proportion to those of the individual consumer. But in the unincorporated collective, consumers hold life or death power over corporations. Take the magnificent corporation, the Eastman Kodak Company. It is bankrupt because consumers abandoned cameras with film for digital devices.

I am not shocked by Professor Warren’s not understanding the basic principles of the market; she taught at Harvard. But I am amazed that people actually voted for for such an ignoramus.

4 No Name Guy 04.23.13 at 12:35 pm

Farside: Yup……they’re all composed OF people acting together. And THOSE people do not lose their right to speak because they choose to act or speak together. This simple concept seems out of reach to those that dislike Citizens United.

5 mojo 04.23.13 at 2:53 pm

“giving Congress unchecked new power over spending on political speech”

Well, that sounds like a bad idea, right there.

6 captnhal 04.23.13 at 7:23 pm

“giving Congress unchecked new power over spending on political speech”

It’s not all speech. Doesn’t that make you feel better? It’s only speech they disagree with.

7 John David Galt 04.23.13 at 9:19 pm

I’d vote for an amendment taking the right away only from unions — at least if they’re spending extorted dues or agency fees. Unions’ power to do this and get away with it is the most outrageous part of the New Deal.

8 Samuel Fieldman 04.24.13 at 1:01 pm

The idea that a corporation is merely a collection of investor shows ignorance of the very purpose of corporate law in the first place. They conflate the notion of a corporation with a partnership.

States have created the corporate form to allow investors to invent a separate legal entity to take risks that individuals can’t because those risks (within limits) are good for the economy overall. They are required by law to act separately and apart from the investors, functioning as a profit-making machine. If the owners treat the corporation as a mere extension of themselves, the corporate form is dissolved, along with the liability shield it creates.

Partnerships, on the other hand, are mere passthroughs. If a group of people gets together to exercise their individual rights together in a joint venture without filing any sort of legal paperwork, it is a partnership by default.

Right now, it is illegal to walk into a polling place with a megaphone and yell your support for a candidate. The megaphone is a tool, as is a corporation and also money. Their use for speech can be regulated for time, place, and manner of use so long as the regulation is content neutral, reasonable, and necessary. Likewise for money and likewise for artificial entities, but not according to the Supreme Court. I understand the potential pitfalls in any Amendment language. That is one advantage of Wolf PAC, which advocates for an Article V Convention where these concerns can be debated and addressed before anything is proposed to the States for ratification.

9 No Name Guy 04.24.13 at 6:50 pm

Sorry there Samuel, that doesn’t pass the smell /common sense test. A union, for example, is a bunch of individual workers joined together in collective action. That said members may happen to incorporate for liability (or other) reasons doesn’t change the fact that it is a collective of individuals acting together, and likely to want to speak together on political matters. My buddy and I form a lawn care company. Instead of working as a partnership, or sole proprietors, we decide it is wise to shield our personal assets from bogus liability claims, so we decide to incorporate. We jump through all the BS hoops to maintain the corporation. Fact is, we’re two guys working together. Do we lose the right to speak collectively on behalf of our business, say to prevent overbearing regulation of small users of common lawn and garden chemicals? No.

And nice strawman there with the megaphone in the polling place. But, I’ll point out the problem even with that – EVERYONE is barred for acting in that manner (e.g. disturbance of the peace / disorderly conduct – try the same thing at your local public library tonight and see how quick you are arrested on a disorderly conduct charge). Those that wish to overturn Citizens wish to limit only SOME from speaking, or to limit people from speaking with a collective voice.

10 Samuel Fieldman 04.25.13 at 4:28 pm

No Name Guy, I think you may have misunderstood a bit. I apologize if I wasn’t clear.

First of all, the government grants your corporate form liability shield because it is good for the economy for you to be able to take the risk of running a business that may end up with significant (if sometimes undeserved) liability without risking your personal assets. The government created that form for you to use for a specific purpose. It need not allow it to be used for other purposes. If you and your business partner wish to collectively speak, you can do it just fine without the use of the corporate form. How does a liability shield and separate distinct entity aid your speech? Maybe you should be allowed to use the corporate form as a tool for your speech or maybe you should have to do it as a collection of individuals without using the separate legal identity of the corporation.

But the actual regulations that make sense is something about which my organization, Wolf PAC, has no opinion. Members of the group have our own opinions, but the group is seeking only to have an Article V Convention to debate the issue and propose an Amendment to the States. Any Amendment I come up with myself will not adequately address all the concerns, which is why I want input from the rest of the nation at the Convention.

On your other comment, I fail to see how that is a straw man. That certainly was not my intent. Everyone is barred from the use of a megaphone in a polling place. Indeed, people have been prosecuted (though rarely) even for wearing political tee shirts in polling places. So long as the restriction on speech is in the form of a restriction on time, place, and manner and the restriction is reasonable and necessary to achieve an important government purpose, it is allowed. A similar restriction, which is content neutral and speaker neutral could also be placed on the use of the corporate form or the use of money to amplify speech if such a regulation turns out to be necessary. Again, I don’t know what the proper regulations are. I have some ideas and opinions, but I only want to make such regulations possible and to do so in a way that doesn’t jeopardize any rights of actual people. If the Supreme Court had been deciding these Constitutional questions correctly, there would be no need for an Amendment. The Amendment would only clarify what most people think the Constitution already says. But those details, how to achieve that goal, are to be debated at the Convention where all the potential concerns and pitfalls can be discussed at length so we can get the best possible proposal to submit to the States for ratification.

I will point out that I neither “wish to limit only SOME from speaking” nor “to limit people from speaking with a collective voice.” I want to discuss those issues at the Convention so we can be sure that the proposal doesn’t do that because I would be opposed to doing that.

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