Friday, January 20, 2012

Citizens United and corporate personhood

Two attorneys involved in defending Occupy Wall Street make a very interesting argument that the notorious Citizens United decision does NOT rest on the concept of corporate person-hood, and therefore the effort to get a Constitutional amendment ending corporate person-hood is a waste of time and resources.

As I read the article below, I thought that more fundamentally, we need to address the issues of what a republic is supposed to be, and how the people are supposed to direct the affairs of the republic through their representatives -- which brings us to the issues of oligarchies and political factions, which WERE considered in the Constitutional Convention and in The Federalist Papers, as I noted in Wealth and Income Inequalities are Markers of Oligarchy.

The Problem With Citizens United Is Not Corporate Personhood
Tuesday 17 January 2012
by: Rob Hager and James Marc Leas, Truthout

....a close reading of Citizens United shows that constitutional rights of corporations played no role whatsoever in the Citizens United decision.
The incorrect - but widely held - reading of Citizens United is that the corruption of elections arose fundamentally because the Supreme Court adopted a legal doctrine of corporate "personhood" which endowed corporations with First Amendment free speech rights, which, combined with the notion that spending money to promote a candidate is a form of speech, gives corporations the right to spend unlimited amounts of their money in elections. This incorrect reading of Citizens United is compounded by the further error that a constitutional amendment is necessary and sufficient to remove those corporate constitutional rights and to remove corporate money from elections, or could prevent the pro-corporate majority on the Supreme Court from making further decisions corrupting elections.
Fortunately, the inordinate influence of private money in elections can be fixed, and the fix is far easier to accomplish - and more certain of success if accomplished - than any kind of constitutional amendment, as described in "Constitutional Amendment Not Needed: Congress Already Has a Remedy."
As to corporate rights, what is true is that the legal fiction of corporate personhood was created to apply the 14th Amendment for protecting corporations from certain state regulations and taxes during the first Gilded Age (1870-1900). The 14th Amendment prevents any state from depriving "any person" of property without due process of law or denying "any person" equal protection of the laws.
Under both mass public pressure and pressure from the Roosevelt administration, by 1938 the court generally stopped striking down laws regarding economic regulation on any grounds, and began to elevate protection of personal liberties over property rights. As described in an article about the rise and fall of the corporate personhood doctrine by Carl J. Mayer, "Personalizing the Impersonal: Corporations and the Bill of Rights," 41 Hastings Law Journal 577 (1990), the Supreme Court had fully abandoned the "corporate personhood" doctrine as a means for advancing corporate interests by the 1960s.
....Speech that merely facilitates the conduct of transactions, such as fraud, conspiracy, insider trading tips, pimping and so forth may properly be criminalized and regulated without much regard for the fact that the means for carrying out the transactions may be entirely speech. Money in politics falls within the category of transactional speech, and it also causes severe harm to the democratic form of government. It may, therefore, be regulated and criminalized.
Other legal restraints on communicative speech, including judicial gag orders restricting pre-trial publicity and laws prohibiting the publication of the name of a rape victim, similarly are considered to have insufficient value as communication to justify the harm they might do. No one disputes that the clear harms caused by these categories of speech activities may outweigh any communicative value such speech may have.
The Citizens United decision is constitutionally flawed for two reasons that have nothing to do with corporate personhood. Each of these flaws provides adequate grounds for Congress to overturn not just one, but all of the Supreme Court decisions relating to private money in politics since 1976.
First, the Roberts 5 stepped outside the court's constitutional authority by taking up and deciding cases concerning election integrity. Maintaining the integrity of elections was a political question of such importance to the founding fathers who wrote the Constitution that in Article I, Sections 4 and 5, they specifically consigned to the elected Congress both regulation and judging of the manner of holding elections. The founders rightly understood that Congress would be far more subject to popular pressure to maintain election integrity than would the appointed-for-life members of the court. Taking up a case and overturning a law that provides for election integrity infringes a power specifically assigned to Congress, thereby undermining the separation of powers. This also violates the court's own well-established precedent of refusing jurisdiction concerning political questions. The court followed this traditional rule defining the boundary between judicial and legislative issues from the 1803 decision in Marbury v. Madison until the Buckley decision in 1976. Every decision widening the gates to money in politics since Buckley, including Citizens United, has violated the same constitutional principle prohibiting court jurisdiction over such political questions.
Second, even if the court had constitutional authority to take up an issue of election integrity, which it does not, the court overruled a fully supported legislative finding that private money in elections causes sufficient harm to justify its regulation, even accepting the distorted view that money in the form of electioneering expenditures is the kind of speech the First Amendment was intended to protect.
By contrast, the public has a far more profound and compelling interest in preventing the death of representative democracy by allowing continued auction of its elections and laws to wealthy corporations. Corporations profit from the government policies and government contracts they receive in exchange for their payoffs to and for politicians. For example, a study done by Raquel Alexander, Susan Scholz, and Stephen Mazza of the University of Kansas found a financial return on investment of $220 for every dollar spent on lobbying, including election-cycle lobbying. This and other evidence of corruption was found to be unimportant by the pro-corporate Roberts 5 in Citizens United. The court instead willfully misinterpreted the language of the First Amendment as providing such absolute right to an abstract listener to hear corporate advertisements as to overshadow the public's greater interest in preventing private money from corrupting elections and government, disenfranchising the many by the money, and causing elected politicians to divert federal and state money toward their corporate benefactors.

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