The Senate may soon vote on the “We the People Resolution.” This resolution is well-intentioned and resonates as positive for many people on first hearing, but it is overbroad and will have unintended consequences.
The “We the People Resolution” calls on Congress to propose an amendment to the Constitution that would:
affirm that (a) the rights protected by the Constitution of the United States are the rights of natural persons, i.e. human individuals, only and (b) Congress and the states shall place limits on political contributions and expenditures to ensure that all citizens have access to the political process, and the spending of money to influence elections is not protected free speech under the First Amendment;
Some recent court cases have been characterized as saying that “corporations are people.” Obviously, they are not — as Elizabeth Warren has movingly argued, they don’t bleed, they don’t have babies, they don’t laugh or cry. It makes intuitive sense to limit human rights to humans.
What’s not to like about the proposal? Basically, it oversimplifies the problem of inequality. Inequality is real and problematic, but this proposal might even make it worse.
If we actually were to pass a constitutional amendment that said corporations have no protection under the constitution, we would be putting both media organizations and advocacy organizations that speak for people at risk. When we think of “corporations”, we think of Exxon and General Motors. However, Planned Parenthood, the Sierra Club, the New York Times and the American Civil Liberties Union are legally corporations too.
Supreme Court decisions have interpreted the First Amendment as giving corporations a right to disseminate their views. This basic principle means that Exxon can market the benefits of fossil fuels, but it also means that Planned Parenthood can advocate for family planning and the New York Times can criticize the President.
If we were to amend the constitution as urged, then many Supreme Court free speech principles would be relitigated and revised by a Supreme Court likely dominated by Republican appointees. I believe that the last thing we should do right now is take free speech rights away from a broad class of organizations.
Another problem with the resolution is that the resolution says that if Congress does not adopt the requested amendment, then the states should convene a constitutional convention to rewrite the constitution. The provision of the constitution which allows for revision by convention has never been exercised and there are many ambiguities about how it would operate and what might come of it. The ACLU, Common Cause and many progressive organizations have joined in opposition to calls for an unpredictable convention.
Shutting down corporate speech will not necessarily level the playing field in communication anyway. Wealthy corporate leaders need only sell some stock in order to generate personal funds to write personal checks and act as human individuals to express their views and perhaps influence elections. One thing I do feel we need to do is strengthen disclosure of political spending. Wealthy donors should not be able to use deceptively named front organizations to hide their spending.
I see no magic cure for our political ailments, but I am comforted by the thought that the 99% have 99% of the votes and that by organizing we can make our voices heard.
Reaction to this post
Just to get a sense of whether I was communicating successfully about this issue, during the first 24 hours that this post was up, I had a question open at the end asking readers for level of agreement. The results were divided but majority positive with 58.4% agreeing or strongly agreeing and 25.7% disagreeing or strongly disagreeing. The comments further below are thoughtful and informative.