A Tale of Two Proposed Amendments to the United States Constitution

Timothy Havel
Oct 1, 2019 · 4 min read

Both claim to overturn Citizens United, but only one will truly rein in corporate power, and the broader support being showered upon the other exemplifies the reasons why

By Constitutional Convention — U.S. National Archives and Records Administration, Public Domain, https://commons.wikimedia.or
By Constitutional Convention — U.S. National Archives and Records Administration, Public Domain, https://commons.wikimedia.or

Most US voters have heard of the Supreme Court’s 2010 decision in the case of Citizens United versus the Federal Election Commission, and know that it greatly curtailed the ability of Congress to regulate the spending of money to influence elections. They may also know that this decision relied upon the First Amendment protections granted to corporations, labor unions and other “creatures of law” by its 1976 Buckley vs. Valeo decision. Far fewer are aware that the history of the Supreme Court granting constitutional civil rights to corporations dates back well into the 19th century: Fourteenth Amendment rights by its 1886 decision in Santa Clara County versus Southern Pacific Railroad, and Fifth Amendment rights by its 1893 decision in Noble vs. Union River Logging. Well before corporations gained the “right” to spend money on elections, the Due Process and Equal Protection clauses of these latter amendments were being used in multitudinous ways to protect corporations from government regulations and oversight at the federal, state and local levels. Examples and historical details may be found, for example, in “We the Corporations: How American Businesses Won Their Civil Rights” by Adam Winkler (2019), and on the website of the non-profit advocacy group “Move to Amend.”

The obvious problems with the Supreme Court’s reasoning in Citizens United (e.g. Justice Kennedy’s claim that such “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption”) have lately given rise to a number of organizations devoted to overturning that decision in the only way it can currently be done (especially given the Supreme Court’s recently acquired partisan bias): Amending the United States Constitution so as to at least allow Congress to regulate campaign finance in principle. Many other older organizations including Public Citizen and Common Cause are also dedicating substantial resources to this end. Among national organizations, however, only Move to Amend has consistently been advocating for a stronger amendment that abolishes constitutionally guaranteed civil rights to legal entities other than natural persons, and hence the much more long-standing and deeper issues alluded to above. In a nutshell: Corporations are not People and those who wrote the Constitution and its amendments never intended for them to be!

The net result is that there are currently two joint resolutions pending before Congress intended to limit participation in the democratic process to natural persons which, if passed, would send constitutional amendments to the States for ratification. The first is the “Democracy for All” amendment, HJR 2, which currently has 151 House sponsors as well as the support of every Democratic senator. It can be aptly summarized as saying merely that Congress “may” regulate campaign finance spending. The second is the “We the People” amendment, HJR 48, which currently has 64 sponsors in the House but has yet to be introduced in the Senate. It not only states, in no uncertain terms, that Congress “shall” (i.e. has a responsibility to) regulate campaign finance spending, but also that corporations are not people entitled to constitutionally protected civil rights of any kind. A detailed, line-by-line summary of the stark differences between these two amendments may be found on Move to Amend’s website.

Given these differences and the forgoing background on these issues, one has to ask why so many more members of Congress have lined up behind the weaker amendment. Although few seem eager to discuss it, if pressed most would probably say that the stronger amendment would be too hard to get passed by Congress let alone ratified by the required 38 state legislatures. It could however also be argued that the bare minimum incorporated into the “Democracy for All” amendment is hardly worth the considerable trouble of amending the Constitution in the first place, and/or that it is less likely to be passed and ratified simply because it is so timid that it will fail to inspire the grassroots efforts that are necessary to do so. The more likely reason, or so it seems to this author, is that it allows the more skittish members of Congress to claim that they are doing something about the travesty of corporate constitutional rights, or at least Citizens United, without offending most of their donors or potential donors. A recent article in “The Intercept” describes the system that the Democratic Congressional Campaign Committee (DCCC) uses to pressure members of the House into being very careful not to do anything like that.

Readers will of course decide for themselves if this latter explanation is the correct one. Here it will only be observed that, if so, then we have perhaps arrived at the very pinnacle of sheer irony: Members of Congress are attempting to fix the undemocratic influence of money on their actions, by choosing an action that does not actually require them to do anything of the kind, because of the undemocratic influence of money upon their actions! Moreover, and for exactly that same reason, they are also shying away from addressing the deeper and older problems with the legal system that their long-standing repeated failures to address the issue of corporate constitutional rights more generally have allowed to come to pass.

It is also ironic, if not downright Kafkaesque, that several organizations ostensibly dedicated to furthering democracy and civil liberties should be providing cover to those members of Congress in their attempt to avoid these responsibilities, and asking their members to support the “Democracy for All” amendment without so much as mentioning the “We the People” amendment, let alone any of the issues raised above.

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