S 772 and Citizens United

Dear Will,

According to your website, you have decided to vote against a resolution calling for a constitutional amendment to fix Citizens United.  As a friend of the First Amendment, I understand your reluctance to tinker with that great bulwark of our liberties.  But I have done a lot of thinking, speaking and writing about this, and I wish you would reconsider.  According to my senator Dan Wolf, the resolution comes up for vote this week, after the Republicans have run out of motions to lay it on the table.

In a long legal career, including a lot of volunteer positions with the ACLU, I have often described myself as right next to a First Amendment Absolutist.  Protection of unpopular speech is vital, and a governmental interest has to be compelling to justify even punishment of speech after the fact, and has to be stronger than that to justify any prior restraint.

But corporations are nor people.  They are a useful form of organization for conducting business or advancing interests in the nonprofit world, and certainly all our churches benefit from the corporate form.  But they do not vote or hold office; they are not citizens of the republic.  And as the Belmont Town meeting is not compelled to listen to a presentation from a Cambridge resident, the US electorate should not be not required to listen to corporations, who may be controlled by foreign interests, suggest to them who they should vote for.

I commend to you a piece I wrote on why corporations don’t have souls

http://www.capecodonline.com/apps/pbcs.dll/article?AID=/20101030/LIFE/10300303,

and Justice Rehnquist’s dissent in First Nat. Bank of Boston v. Bellotti, 435 US 765, 822 (1978), where he said
“It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes.[5] A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as 826*826 an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist. So long as the Judicial Branches of the State and Federal Governments remain open to protect the corporation’s interest in its property, it has no need, though it may have the desire, to petition the political branches for similar protection. Indeed, the States might reasonably fear that the corporation would use its economic power to obtain further benefits beyond those already bestowed.[6] I would think that any particular form of organization 827*827 upon which the State confers special privileges or immunities different from those of natural persons would be subject to like regulation, whether the organization is a labor union, a partnership, a trade association, or a corporation.”

The idea that corporations have constitutional rights at all is a direct result of a coordinated strategy that Lewis Powell, then an attorney for the US Chamber of Commerce, outlined in a memo in 1981, for which he was rewarded with e seat on the Supreme Court.  The court erred in including corporations as “persons” under the XIV Amendment in 1886, and it erred in expanding those rights in the Burger, Rehnquist and Roberts courts.

I agree with Rehnquist that corporations as well as unions and other organizations, should have procedural due process rights and liberty of the press and a right to speak to advance their own direct economic interests in administrative and judicial proceedings.  But a business corporation has no soul; it is organized to make profits; management cannot be very altruistic without violating their duty to the shareholders.  Real people, on the other hand, can and do look beyond their immediate economic advantage and often vote for long-range solutions that are in the public interest, or the candidates who advocate them.

Yes I’m scared of tinkering with the First Amendment.  I would rather have the Supreme Court reexamine Citizens United in light of the experience of the last two years, but they have rejected that course.  We are deeply into a corporate plutocracy, and Congress needs the leeway to reinstate reasonable restrictions on election eve speech.