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Building support for a 28th Amendment

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Last week, Senator Bernie Sanders (Ind-VT) proposed a constitutional amendment that would clearly define and limit Constitutional rights to natural persons.

It would seem self-evident to most readers that such an amendment is unnecessary because of course only people have rights – and yet they would be grievously mistaken. The Supreme Court has made a number of decisions (1) that provide corporations, companies and other groups with many of the same rights that you and I have. The most egregious of these is the recent Citizens United v. FEC (Jan 2010), a ruling that torpedoed the bipartisan McCain-Feingold Campaign Reform Act of 2002. With this ruling, the floodgates of corporate spending on political campaigns – never more than half closed – opened wide. It was so blatant, that Senator McCain warned  “there’s going to be, over time, a backlash … when you see the amounts of union and corporate money that’s going to go into political campaigns”. (2)

Political spending by outside groups from 2000 to 2010 (3)

 

These charts  show spending by “outside groups” (in other words, not the candidates themselves) and include: independent expenditures, electioneering communications and communication costs.

Between 2000 and 2010, total political expenditures increased by over 1,000% – a ludicrous sum. An unprecedented half a billion dollars were spent in each of the 2004 and 2008 general elections; but what is even more unbelievable is that almost as much was spent on the 2010 mid-term election. Until 2010, mid-terms were considered “off years” – but no longer.

One of the driving elements of this splurge in spending has been the rise of the “super PACs,” which can raise unlimited sums from corporations, unions and other groups, as well as wealthy individuals. This is a totally different animal from the old and well-known political action committees (PACs), which could also raise money via contributions that were capped at $5,000 per year. Super PACs may overtly advocate for the defeat or election of federal candidates. 

As if there were enough sources of funds for political candidates and their organizations, there are also  entities known as “527 organizations”, and 501(c) nonprofits. Both are registered with the IRS and while the 527s must publicly disclose their donors, the 501(c) groups are not required to do so. Of course, the 501(c) groups are not supposed to be involved in politics at all, but the courts have allowed them “limited” political activity – which in today’s climate equates to carte blanche. 

The Supreme Court argues that the flooding political races with hundreds of millions of dollars from undisclosed sources during every election is not only perfectly safe, but contributes to the vitality of our democracy”, to paraphrase Chief Justice Stephens. That is as false as saying that flooding college athletics with hundreds of millions of dollars every season has made the players better scholars and their universities better institutions. It has created bloated sports programs, corrupted school officials and skewed academic value systems in favor of athletic, rather than scholastic performance. The exact same results are not only to be expected in our political system, but are easily observable. Do we really expect politicians to turn away from the trough? Even if they were able to, which they are not.

What is most disturbing about the Supreme Court’s decision in 2010 Citizens United v. FEC is that it now permits corporations and unions to make such expenditures directly from their treasuries and without complete or immediate disclosure of who funds such communications. Voters no longer know who is truly behind political messages or supporting individual candidates any longer. 

Let us step back a moment. Ignore the practical effects of this blatant corruption. Ignore the buying and selling of elections, and the immense pressure placed on elected officials when in office. Let us ask ourselves a more fundamental question. Why are corporations allowed to spend money on political elections at all? Exxon Mobil can’t vote; Walmart can’t be drafted to go to war; FedEx can’t serve on a jury. So why are these corporations, as corporations, allowed any political speech at all?

The simple answer is that they shouldn’t be.

When corporations spend millions to influence elections and buy politicians, they are indirectly disenfranchising the remaining 99% of the US electorate that is not wealthy enough to purchase similar influence. They are directly disenfranchising their shareholders, who have no say in which candidates are supported and which are opposed, nor even if the money would not be better spent prospecting for oil or building a better light bulb. And no corporation ever died defending liberty on any battlefield I know of.

Our Constitution begins with three simple words: “We the People…” You can search through that sublime charter and all of its amendments and you will not find the words “corporation” or “company” mentioned a single time. (3)

Senator Sanders’ proposed Saving American Democracy amendment states:

SECTION 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.

SECTION 2. Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.

SECTION 3. Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.

SECTION 4. Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.

Senator Sander’s initiative is to be applauded, and it has a snowball’s chance in hell of gathering the required three quarters supermajority in the House and Senate to be approved. Again, it’s as easy to ask the pigs to voluntarily turn away from the trough. But if Congress is unlikely to vote for an amendment, voters can work through their states.On demand of two-thirds of the state legislatures, Congress is obligated to call a constitutional convention to propose the amendment, which must then be ratified by three quarters of the states. Since state ratification is necessary anyway, this is most  fruitful avenue for organization.

If you feel, like I do, that this is one of the fundamental issues facing our nation – almost certainly the most important one threatening our democracy – then become an advocate. Write your state and federal representatives. Write your news outlets. Organize and join with like-minded people. Most importantly, stay mad as hell. You ought to be – what’s at stake is our freedom.

Notes:

(1) 1976 Buckley v. Valeo
(2) Amick, John (2010-01-24). “McCain skeptical Supreme Court decision can be countered”. The Washington Post
(3) Center for Responsive Politics
(4) Constitution of the United States of America and Amendments

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  1. […] Disregarding for the moment the accusation of vote buying, which is a criminal offense and a gross exaggeration, I am nevertheless in complete agreement that campaign finance and general electoral reform are vitally important issues to our democracy. Treating for profit and not for profit corporations or groups as having political personhood makes no sense whatsoever, and has no Constitutional basis that I can find[8]. To the right’s charge that corporations should be allowed to donate and spend money in campaigns if unions are allowed to, I would answer that unions should not be allowed to do so either. I provide more detail on this issue in my article “Building Support for the 28th Amendment.” […]

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