Comparison of Proposed Corporate Personhood Amendments

There are many amendments that have been proposed whose sponsors claim will abolish corporate personhood and/or declare that money is not free speech. Here is a discussion of the problems with the four types that have been introduced in Congress and of two that are being promoted by various groups and individuals to address these problems.

EDWARDS-STYLE AMENDMENTS TO GIVE CONGRESS THE POWER TO REGULATE CORPORATE “FREE SPEECH”

The Donna Edwards amendment is the prototype of a group of amendments that would if passed give Congress the power to regulate corporate money in campaigns. Others falling into this group include the Schrader, Udall and Baucus proposals. Congress had this power before Citizens United but declined to use it. There is no reason to think that a Congress now more thoroughly corrupted by corporate money would use it if by some miracle it were to pass. The fact that Baucus supports it should be evidence enough that it is nothing but a symbolic gesture toward the need for reform.

More importantly, by stating that Congress can regulate campaign contributions, corporate personhood would be enshrined in the constitution. There is a real danger of this happening as members of Congress are becoming dimly aware that the People are demanding that they overturn Citizens United, at a minimum. Such a gesture would be likely to convince a public unaware of the distinction that Congress is doing the only “politically possible” thing when in fact such an amendment would do nothing but cause the abolition movement to lose steam.

The practice of corporations asking for and getting toothless regulation to avoid the danger of real regulation has a long history of success. Corporate tools in Congress have routinely passed regulation to allow dangerous levels of poisons to be spewed into the environment in the guise of “protecting the public” by making specific limits on pollutants that the polluters can live with. We saw the same thing with the Baucus-orchestrated debate on medical insurance “reform” that resulted in the Unaffordable Healthcare Act.

YARMUTH/JONES AMENDMENT STATES THAT MONEY IS NOT FREE SPEECH AND AUTHORIZES PUBLIC FINANCING

At this writing, this is the least known of the amendments despite (or perhaps because) of the fact that it is a bipartisan effort to address the issue of money in politics, sponsored by Congressmen Walter Jones (R-NC) and John Yarmuth (D-KY). It explicitly states that money is not free speech, thus empowering Congress to regulate it. It further explicitly authorizes Congress to establish a mandatory system of public financing. Finally, it creates a federal holiday for the purpose of voting in federal general elections.

The problem with this bill is that it does not explicitly state that corporations are not people. Under the Supreme Court doctrine that they are people under the Fourteenth Amendment they could continue to assert all the constitutional rights of human beings, including but not limited to the right to contribute to political campaigns. This would leave things largely unchanged until such time when members of Congress might decide to give up the system by which they ascended to office.

DEUTCH/SANDERS AMENDMENTS TO LIMIT CORPORATE PERSONHOOD TO “NONPROFIT” CORPORATIONS

The Sanders proposal is perhaps the best known of all the resolutions calling for a constitutional amendment. It is essentially identical to the one introduced earlier in the House by Ted Deutch (D-FL) in declaring that for-profit corporations do not have personal rights and that they cannot donate to political campaigns or ballot measures. It also allows Congress and the States to set limits on personal expenditures in such campaigns.

The Sanders resolution has received a lot of publicity due to Senator Sanders’ reputation for representing people over corporations. Because of this, it has not been widely scrutinized by his adoring public or the alternative media. This has resulted in many people not understanding its serious problems.

These amendments attempt to curb corporate power without affecting the ability of unions or 501.c4s to influence elections. In carving out an exception for nonprofits to a ban on corporate contributions, the claim that they would “prohibit corporate spending in all elections” rings false. Citizens United itself was incorporated as a 501.c4 “public interest” nonprofit. These nonprofits are allowed to lobby and to participate in political campaigns and elections without revealing the source of their funding.

Excluding unions from a ban on bundled money in elections is not justifiable on philosophical or practical political considerations. If corporations are associations of people who join together in their own self interest, then so are unions. Failure to admit this will guarantee the principled opposition of those who believe, rightly or wrongly, that unions have too much power in elections. Regardless of the truth of this supposition, it makes no sense to have this fight when many union members are concluding that the politicians their PAC money is supporting no longer serve their interests.

The amendment proposed by Representative Jim McGovern (D-MA) states that corporations are not people and are subject to regulation by the States and federal government.

The McGovern amendment would not address the issue of whether money is free speech, or whether unions are subject to the same restrictions as corporations. Although the protections afforded corporations under the doctrine of corporate personhood would be removed, it would still be up to Congress and the States to impose limits on corporate or union spending.

MOVE TO AMEND PROPOSAL TO ESTABLISH THAT CORPORATIONS ARE NOT PEOPLE AND MONEY IS NOT FREE SPEECH

Move to Amend has proposed an amendment that would address most of the shortcomings of all the resolutions that have been introduced to Congress thus far. It explicitly states that corporations are not people, that money is not free speech and that ALL entities established by the laws of the US, the States or foreign governments are subject to regulation through federal, state and local law. It establishes that corporations have no rights under the constitution and that no privileges granted these associations by governments is inherent or inalienable. Like the Deutch/Sanders amendments, it allows Congress to regulate individual donations. It also requires that all contributions must be publicly disclosed.

The major problem with the amendment is that it does not make contributions by these entities illegal. Instead, it states that: “Federal, State and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures, for the purpose of influencing in any way the election of any candidate for public office or any ballot measure.”

A PROPOSAL TO ABOLISH CORPORATE PERSONHOOD, END BUNDLED PRIVATE MONEY IN ELECTIONS AND CONTROL LOBBYING

The following language is designed to incorporate the best features of the previous amendments and to also address the other method by which corporate money can be used to corrupt elected officials, the promise of well-paying jobs in private industries which they have the duty of regulating.

While the wording of this proposed amendment is subject to debate, it is intended to abolish corporate personhood, establish that it is illegal for any state-created entity to contribute to political campaigns or ballot initiatives and to remove incentives for lobbyists and members of Congress to put the interests of corporations over those of We the People.

SECTION 1. The rights, responsibilities, and privileges granted to “person” or “persons” as enumerated in this Constitution, its amendments, and extended through case law are exclusively reserved for human beings.

SECTION 2. All non-living entities established by law in the United States shall be subordinate to any and all laws enacted by the people and their elected governments. Corporations shall be defined as “persons” only for the purposes of contracting, suing, being sued, transacting business and continuity of operations as people come and go, as defined under state and federal law. Corporate charters do not limit the liability of officers of corporations or board members from criminal prosecution for acts authorized by them on behalf of the corporation.

SECTION 3. No non-living entity may donate to political campaigns directly or indirectly. All donations must come from the personal assets of individuals or via public funds expressly authorized by law to be used for that purpose. Congress and the states are empowered to limit or abolish individual donations.

SECTION 4. No person shall be employed by any member of Congress who has been employed by an industry subject to regulation by any committee on which that member of Congress is or has been a member, nor shall any member of Congress nor any individual in their employ be legally able to receive remuneration for services rendered to any corporation in any industry subject to regulation by such committees for a period of 10 years.

SECTION 5. Nothing contained herein shall be construed to abridge individual rights of freedom of speech, freedom of the press, free exercise of religion or other inalienable rights of the People.

SECTION 6. Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Suddenly abolishing the corporate veil altogether? What do you think would suddenly happen? The concept was invented for a reason, and it is not an impermeable shield against accusations of serious individual crime (as an extreme case, a corporation could never hide behind its incorporation for a murder).

There is another aspect of "non-person-hood" that many people have forgotten: no taxation without representation. The continued imposition of taxes on corporations along with the adoption of one or more of the ideas in these amendments would fly in the face of this basic principle. Just as corporations are not people, corporations themselves should not be taxpayers. Instead, the tax burden should be shifted to the human beings who own the stock of the corporations, just as the tax burden in a partnership is shifted to the individual partners.

One positive result of this would be the elimination of tax avoidance schemes by corporations, to reduce the corporate tax burden. There isn't any direct burden.

Hmm, McCain-Feingold on steroids?

The First Amendment states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

That does not make any distinction between individuals and corporations, nor does it seem not to conflict with the last cause seeing that some of these non-profits do petition governement on behalf of individuals, nor does it succeed in reigning in union lobbying influence, thus giving rise to a specter of selective enforcment of whatever principle (progressivism?) it aspires to support.

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