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Smart v. Stupid

The constitutional amendment to nullify Citizens United

This generation’s most important piece of legislation misses the mark

In the coming days, you’ll hear more about legislation unveiled this week by New Mexico’s Senator Tom Udall. It would give Congress and the states the power to regulate campaign contributions. A Constitutional Amendment to Reform Campaign Finance, is proposed as a remedy to the infamous Citizens United decision. In Citizens United, the Supreme Court awarded near unlimited political power to corporations.

Amendment won’t solve the problem

Sure, the legislation is an important step. It ought to be ratified. But Udall’s amendment is a narrow solution—just for the issue of campaign spending. The joint resolution—which is how constitutional amendments are filed—simply restores regulatory authority to Congress and the states. (Ironically, this was an area where Arizona was a leader before its law was overturned by the same SCOTUS using the same odd logic.)

Yet it does nothing to address the most egregious aspect of Citizens United, something I call “creeping personhood.” Creeping personhood is the growing list of citizen rights and privileges accorded to non-human entities. One hundred years from now, this notion will either be considered laughable by historians or else corporations will have voting rights.

Here is how it happened

In the original decision establishing corporate personhood, 1819’s Dartmouth vs. Woodward, corporations were granted rights to make and enforce contracts. In 1886, Santa Clara County v. Southern Pacific Railroad granted (by inference) equal protection to corporations. Both were reasonable responses to real issues of tort law. However the way each was decided opened the door to creeping personhood. Creep, creep. …

Another SCOTUS decision, Buckley v. Valeo, had found that campaign donations are a form of speech. Creep, creep. …

Then Citizens United granted personhood to corporations as regards “free speech” essentially giving them a First Amendment right. The Roberts Court, in a 5-4 decision, further said that free political speech is necessary for democracy, and that it was no less true if the speech comes from a corporation. Creep, creep. …

So now the First Amendment applies to corporations. Spending is speech. And corporations are free to spend whatever they want and to keep this spending a secret. This is true even if the spending is to influence government to give them an unfair advantage over other, actual citizens. Or even over another actual corporation. The current House of Representatives—in the way it entirely ignores the will of large majorities of citizens—is the end product of corporate ownership.

The richest corporations get to use government to dominate people. And even to dominate less powerful corporations. They own law-making. They bought it. But it isn’t democracy if you can buy it, now is it?

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And here is how to fix it

So our fundamental concern is not campaign finance, but the idea that corporations are people. This ugly wart on logic and law will continue to revisit us until it is excised. What is needed is a straightforward constitutional amendment to clarify personhood. Something like:

  1. A human person is a living, breathing, and born human of human biology and having the ability to act and reason as an individual, corporeal being.
  2. Only a human person who meets other requirements for citizenship is eligible to be a citizen of the United States of America.
  3. Any other entity, corporation or legal construct may be granted limited representational rights to due process and tort claim in the disposition of contractual obligations, but shall enjoy no right or privilege of citizenship. Entities not meeting the requirement of sections one and two above are non-persons.
  4. Granting of representational rights or obligations to non-persons shall be made in specific law passed in accordance with Article One of this Constitution. No other right shall be inferred or derived.

By clearly establishing that corporations are not people, actual people can reestablish the original form and nature of our democracy. This single act may turn out to be the most important contribution of this generation.

Jimmy Zuma splits his time between Washington, D.C. and Tucson. He writes the online opinion journal, Smart v. Stupid. He spent 5 years in Tucson in the early ‘80s, when life was a little slower, swamp coolers were a little more plentiful, Tucson’s legendary music scene was in full bloom, and the prevailing work ethic was “don’t - unless you have to.”

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Nov 13, 2011, 11:43 pm
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... Our fundamental concern is not campaign finance, but the idea that corporations are people.