A Constitutional Amendment?

In the wake of the Supreme Court’s decision in Citizens United to expand the ability of corporations* to pay for election-related communications, prominent law professor Lawrence Lessig is calling for a constitutional amendment to protect elections from the influence of money. The text of the proposed amendment isn’t done yet, but the goal is to protect Congress from the influence of money.

Lessig’s argument is simple: Congress is fundamentally (though, thanks to the Supreme Court, legally) corrupt, and most people think it is corrupt, which makes it hard for elected majorities to effect change and also undermines people’s faith in their government. Commenting on Citizens United, he said, “The surprise, and in my view, real cause for concern, however, was how little weight the Court gave to the central purpose of any fair election law: the purpose to protect the institutional integrity of the democratic process. That value seemed invisible to this Court, as if we didn’t now live in a democracy in which the vast majority has lost faith in their government.” Since the Court’s preferred stick for blocking campaign finance reform is the First Amendment, the only thing that can stop them is a new amendment.

I think campaign finance reform is a hugely important issue, but in the past I have been skeptical that it could be solved. I have also been skeptical of constitutional amendments in this area, because my belief is that each major party will evaluate any proposed amendment for its impact on its own political power, and one or the other will be able to muster thirteen states to block the amendment. In 1971, the 26th Amendment lowered the voting age from twenty-one to eighteen, but I find it hard to imagine that such an amendment could be ratified today; since the young vote are, for example, disproportionately in favor of same-sex marriage, I can’t see the Republicans going along. Partial proof is in the plight of the District of Columbia, which clearly should have a representative in Congress (the license plates in DC say “taxation without representation”), with more people than Wyoming. But since everyone knows that that representative would be a Democrat, there is no chance of such an amendment passing today. (Proposals that a representative for DC be balanced by an extra representative for Utah just prove my point.)

Lessig is trying to make his proposed amendment a bipartisan initiative, and that may turn out to be a successful strategy. Perhaps disillusioned liberals and angry conservatives could make common cause–although bear in mind that much of the massive campaign spending that exploits current campaign finance loopholes comes precisely from these two extremes. But it’s a huge problem, and Lessig is probably right that this is the only real solution.  So I’m strongly in favor; I just wouldn’t put too much money on it.

* And unions, people always point out. But the unions themselves were by and large against the Supreme Court’s decision in Citizens United, because they know the corporations have much, much more firepower.

By James Kwak

124 thoughts on “A Constitutional Amendment?

  1. Lessig’s proposal is retail politics at its finest: present us with reality versus abstract concept, so we choose abstract concept. As soon as we are all invested, he’ll present the text of the amendment and hope that we all don’t pay too much attention to the text and impact. Amendments are, by necessity, a blunt instrument, and it would be difficult to craft one that directly addressed the problem of money in politics that would ban Citizens United but not Fox News and MSNBC. Further, Lessig aside, the people who work on these things tend to be quite unaware of the obvious revolution in media and journalism going on right now, and I’d bet dollars to doughnuts that any response to Citizens United will address television only. Lessig’s own writing (that I’ve seen) directly mentions only reduced fees for television ads.

  2. If I could write the amendment it would roughly say…

    No living person whom is not eligible to vote could make monetary or monetary equivalent donations to any political party or person actively pursuing an elective office.

    No funds received prior to a legal announcement of intent to run for an elected office can be used to campaign for said office.

    No living person shall make monetary or monetary equivalent donations to a person actively pursuing an elective office if that elected position would not represent the person based upon his legal place of residency.

    Congress SHALL enact laws to reasonably limit the size of an individual’s total annual political contributions to any candidate or political party.

    No person or entity may distribute messages of political intent 30 days prior to an election with the exceptions of the political candidates seeking election or media outlets whom are reporting political related news events, distributing private citizen opinions (which must be clearly stated as such), or editorializing the election (which also must be stated as such).

    Congress and the State shall enact laws to enforce this amendment.

  3. A bigger problem is that in the last three presidential elections, the only Democratic or Republican names on the ballot were George Bush, Al Gore, John Kerry, Barack Obama, and John McCain.

  4. How about legislating that all people will be kind and gentle? All the court did was recognize the reality of the political process. What Congress should now do, is ensure that there are transparency laws in place, so that there is a public record of where the money originates.

    Light is the best cure for darkness, not outlawing the night.

  5. ” but I find it hard to imagine that such an amendment could be ratified today; since the young vote are, for example, disproportionately in favor of same-sex marriage, I can’t see the Republicans going along. ”

    Logically, people might very well be in favor of an amendment aimed at good government, while opposing governement approval of biologic perversity.

    And by the way, young people change their attitudes on things as they age.

  6. The only thing right is that congress is corrupt.

    As long as there are rents to seek, the money will flow.

    The only real solution (maybe necessary for constitutional amendment)is to re-limit the powers of the federal government.

  7. The issue of a constitutional amendment is intriguing, as intriguing as the whole issue behind the Supreme Court ruling. One thing I think everyone is overlooking is the rampant distrust the American public has for politicians and political finance. The idea of having a big corporation running advertising for, or against, a certain politician may not be as appealing as it once was.

    Rather than go the amendment route, pass a new finance law setting up strict rules for political advertising. The core rule can be that whoever is paying for the ad must identify themselves in clear, readable type for at least 10 seconds of any ad 30 seconds or longer. Also, make it a requirement that PACs or committies must now divulge in their ads who are the money people behind them. For example, a Dick Armey or a coalition of health insurance corporations can no longer hide behind a committee moniker.

    I know that any such legislation will have to fight the corporate voting bloc in Congress, but make the fight public by making the members of congress who oppose such a measure come out in front of their voting constituents and say so publically. In these times, it may be a kiss of death to oppose such a measure.

  8. Corporations are not people.

    We need to get rid of the legal idea that they are.

    Barney Frank has a good idea using laws that govern corporations. Corporations exist only through laws that define their existence. We don’t need a constitutional amendment to change those laws. Sadly, I doubt he will go after the core problem and remove the status for corporations as people.

  9. You’re talking about reducing centralized power.
    That’s fine, except it’s already demonstrated that some issues require centralized power.

    How does a nation defend itself – with a bunch of amateur militias, or an organized centralized military?

    How was convential polution controlled – by every city having its own regulations (if any), or rules imposed by a centralized authority?

    How can CO2 emmissions be controlled? Just leave it up to each region, industry or country?

    The countries with centralized control of health care all have better results and much lower costs than the de-centralized system in the US.

    Corporations all operate under laws contianing language about the ‘public good”. There’s nothing wrong with making sure government is kept clean enough to enforce common sense measures designed for the public good.

  10. The problem is not the Constitution, it is the corrupt judges who are deliberately misreading the Constitution to suit the corporate interests. The Scalia gang state that their rulings are based on the Constitution as the writers intended. The people who drafted the Constitution were fearful of corporate power. They equated corporations with titles of nobility. They live on in perpetuity while amassing power and wealth. At the time of the drafting of the Constitution, corporations were limited in both scope and power through legislation. If you attempt to pass similar legislation now, the Scalia gang will just strike it down. The solution is to impeach those judges that are deliberating misreading the law.

  11. The single unifying trait of all members of Congress is their ability and desire to ask for money. This is the skill of the sales person. We are governed by those who can stand the constant search for cash and are good at it.

  12. It blows my mind that anyone would use the First Amendment to justify allowing corporations effectively to purchase elections.

    I do not think it is inevitable that we have a commercial political process. I’d be less interested in limits on spending than on publicly-financed elections that would allow the emergence of other parties/perspectives. People should not have to be able to afford to run for office in this country.

    And it would be nice not to read stuff like this anymore:


  13. If congress is corrupt then it is a manifestation of the electorate that places those persons in that position of power. There is nothing to stop the electorate to not vote for those individuals. The problem comes with creating fair and transparent playing field. There should be a competition of ideas not a competition of who can best warp the political situation to their advantage especially with unlimited capital resources. Any thing short of a total public subsidized election begs to create a system of corruption and it is manifest itself quite nicely in the United States. Limit money for primary and general election and how the candidates can spend it. Guaranteed x number of debates and hours of television/radio broadcast time and that is it! No outside people besides the candidates and their public funding should be involved with the election. It is really time to give the country back to the electorate.

  14. The Supreme Court ruling would seem to be something else to destroy US democracy. I don’t make this claim rhetorically.

    Why don’t corporations merely buy the government they want? “Here’s $200 million. Win the election and then do what I tell you”.

    I could get all sci-fi and suggest that the US be run by a board with representatives from the companies that bought the government. However, it’s hard to do this without it appearing to be reality.

    Look at the whole bank bailout thing. The banks bought the government so when they screw up the general populace pays to fix the problem.

    I’m genuinely starting to wonder if we are watching the end of the US.

  15. Show your distrust and anger by voting against the incumbent of your party at primary time. Send half the incumbents in the House and a dozen Senators packing. This is a here and now message.

  16. The real issue is people getting convinced of how to view various political issues by one sided advertising and brainless one sided opinion on radio shows.

    How much of this could be solved by having a Federally funded nationwide broadcast TV and radio channel that does nothing but provide 24 hour forums for political discussion and debates? It would be on local, regional, issue, national scales, and would give time to all credible parties.

    Would people start getting their information from these balanced forums, and start ignoring advertising and Rush Limbaugh type shows?

    Would a contatnt source actual balanced discussion and debate make advertising and Rush Limbaugh ineffective?

  17. Agreed.

    Under current law, the decision is theoretically defensible. An amendment stating that corprations do not enjoy the same rights as individual citizens is entirely appropriate.

  18. That won’t work. Everyone knows where these viral YouTube video’s and email rants against HR3200 come from. The claims they make have been analyzed by FactCheck.org and others and have been shown to be mostly false and misleading. Yet, they are still in circulation, and people still believe them.
    Transparency doesn’t overcome a lazy, uninformed electorate.
    Accoding to Mr. Colbert, “Remember kids, in order to maintain an untenable position, you have to be actively ignorant.”
    This is the motto of our “movement” conservative friends.

  19. Yes, but this ruling removed the small piddling pile of regulations that did apply, all except for the direct contribution bit. The worst part about all of this ruling is that it restricts most NEW regulations that could have been placed on corporations influencing elections, along with the few that we had. All we can do now is require disclosure of who is running the ad, but anything beyond that is “restricting free speech”.

    it also furthers the idea that a corporation is a person, which hasn’t ever explicitly been said by the court in a ruling, but they keep implying it.

  20. I think so too — and maybe a global process, not just the US. It is a self-destruction so irrational it almost seems deliberate. Sometimes I think we are unconsciously helping the natural world restore its well-being. Shades of Avatar.

  21. I think there is a non-amendment way to accomplish to fix things. Congress should use its inter-state commerce clause authority to require all corporations engaging in inter-state commerce to be Federally chartered (sorry Delaware). It would create a new Federal incorporation statute for this purpose (eliminating the “race to the bottom” in standards, which Delaware won). Since corporations would then be a Federal creation, it could define them as non-persons. It has been corporate personhood of corporations that has often extended them the protections under the Constitution. This might or might not work for the 1st amendment, under which the Roberts Court ruled, but it probably would at least apply under the 14th, which is what is used to apply the 1st amendment to the States.

  22. If corporations are persons, then it should be possible to send them to prison or death row.

  23. The issue dates back to a series of late 19th century court decisions that re-defined corporations as legal persons. This begins with the “Santa Clara” decision of 1886 that defined corporations as persons protected by the Fifth and 14th amendment – including ‘life and liberty’ as well as due process of law. Because the Constitution and the laws that derive authority from it are ultimately far more concerned with rights in property than any form of political process (be it democratic, or non-representative), it is easy for the current court’s majority to turn the clock back to the Taft court! The current court has decided ex-cathedra that corporations are persons in every sense of the word. This is equivalent to the Papacy (when under sustained assault in the later 19th century)to pronounce as dogma, papal infallibility -and, one might add, for much the same reason. As the Pope lost authority both temporally and spiritually, he grasped for new ways to stifle dissent and preserve power. Scalia, Roberts, Thomas aren’t much different than a fin d’siecle pope!
    I do not think a constitutional amendment will go anywhere. Most republicans would be perfectly content with corporate authoritarianism as the core and a window dressing of electoral process. Most democrats would have little objection either – on much the same grounds except that they like a potemkin village of ‘civil rights’ to cover authoritarianism.
    The uncomfortable truth – or something like it – is that in a society where only property rights and exchange value are the core values, the rest of the kinds of ‘rights’ and customs we associate with “American democracy” and the hagiography of the founders is so much frippery.
    As Marshall Sahlins once described american capitalist society as a cultural system, it generates, “a cohesive society of perfect strangers.” no politics (because zoon politikon requires a public space and here, everything is private(property)), merely ceaseless exchange and consumption. And now we have it in spades.

    Combined with earlier court interpretations that money is ‘speech’, we now have a legislative body that is inherently corrupt – in the 18th century sense.

  24. So of course this means that we have to revisit the 14 Amendment immediately. And while we’re at it pass a new Constitutional amendment that bans – yes, I said it bans – all lobbing and lobbyist that contribute any remuneration to a political party, PAC, politician, or funnels money to them in any way. Good first project for Scott Brown.

    If you use a grassroots populist approach this could happen. You would have to stress that big corporations, banks, and other similiar entities enable some citizens to get more than one vote. Ron Paul and other non-traditional liberals will get on board if you frame this right.

    One such approach:

  25. Actually the Supreme Court decision probably doesn’t do what you think it does. Most corporations already intervene in politics, but they do it through lobby activities, not through taking out political advertisements. As was noted by political thinkers for a long time but perhaps most notably by Harold Lasswell (Politics: Who Gets What, When, and How) it’s pretty hard to keep people with money from spending some of it to promote their own interests, and laws that suppress political spending generally just make these operations less transparent. In my judgment it’s more important to have transparency: I’d rather the unions and the corporations be more visible in what they do.

  26. I completely agree with you. The electorate must take back the election (and governance) process entirely. (historically, did we ever have it?)

    My fantasy goes like this:

    All individuals who vote pay an elections tax, a minimal, annual flat fee. No other funding is used for elections.

    Candidates’ resumes (and perhaps their responses to a standard set of questions) would be posted on public television and internet sites (like C-Span), and also mailed to residents (are there still people who do not have access to T.V., radio, or internet?).

    Guaranteed x number of debates and hours of public television/radio broadcast time for candidates to present their views on the issues. No “ads” per se. Also, I would add: candidates may ONLY talk about themselves, NOT the other candidates.

    This model would be used for elections at all levels, from local to federal.

    So simple. I must be missing something. Oh yeah, it would, no doubt, take a revolution of sorts to make this happen. But, I think the electorate is (finally) fed up enough to take this kind of action.

  27. I am of the opinion that there is now no way to reverse the SCOTUS decision. Plain and simple. As it stands now, any politician that wants to attain or keep office will need to bow to their corporate masters, and this will play out 100% as soon as any attempt is made to reverse the situation to strip corporations of this power.

    Game over. Forever.

    Someone please show me a (nonhypothetical) route out of this blind canyon and I might change my mind. Otherwise this is an extremely bleak turn.

  28. Won’t matter.

    Every seat must be held by someone. A new person running for office will either accept corporate support at election time, and their later influence, or not accept it and lose at the polls.

    An honest person who will not bow to corporations will never again attain any seat in any part of Federal government. And even if a few do, it won’t be enough to matter, and they won’t be re-elected.

    Game over.

    How am I wrong? Please it explain it, because I want to be wrong.

  29. If congress did anything like that, the supporters of the legislation will find themselves under massive electoral attack in the next election by hand-picked corporate lackeys running with billions of dollars in campaign funds to spend.

    You could get a trained ape elected if you had a billion dollars to spend. People at the polls are that stupid.

    Game over.

  30. You might have been able to get some transparency in the past, though it would be hard.

    The chance of that happening now via legislation is exactly zero, unless the corporations sense that they can diffuse a much larger issue by tossing the sop to the voters.

    So if we can stir up a much larger issue, bordering on violent revolution, maybe we get transparency. But no more than that.

  31. Unfortunately the only real way to remove “corporations as persons” is with either a new supreme court ruling which overturn’s the 1886 Supreme Court ruling that said under the 14th amendment corporations have the same rights as a living person (SANTA CLARA COUNTY v. SOUTHERN PAC. R. CO.) or with a constitutional amendment.

  32. Good, but you left off that no non-living person can make monetary or monetary equivalent donations or campaign for or against individual candidates.

  33. …also the press, which isn’t exclusively focused on entertaining news, is crumbling. Blogs won’t be a robust enough replacement.

    So no way in our Democracy to explain why the issue is important to a population that doesn’t even consume news that doesn’t involve something mind numbing.

  34. Transparency laws are already in place for contributions to individual candidates (above 250$). What the court did was say corps/unions could seperately fund their own campaigns for or against individual candidates. And for the large cash rich corp, they could just threaten (via backchannels) to run a negative campaign against a candidate to get said candidate’s promise to vot a certain way. No transparency there!

  35. You can indict a corporation, which is why UBS is scared (to a degree) of the US Justice Dept.

  36. the core issue is whether or not living people using assets of their corporations and acting through them be denied rights. I think the discussion in http://volokh.com/2010/01/22/should-people-acting-through-corporations-be-denied-constitutional-rights-because-corporations-are-state-created-entities/ is really worth thinking through and understanding.

    The same exact argument can be applied to “freedom of the press,” in the sense of that “the press” aren’t corporations but rather that individuals (acting through corporations or not) have certain rights.

  37. The issue is to dampen the need of campaigns and elected officials to have to raise so much money to counter opposing interests, including corporations, or to get in bed with corporations in order to pay for the campaign.

    Take back the airwaves. These were auctioned by the government originally. Any candidate that meets a threshold is granted free airtime.

    Implement a national fund to support campaigns, with the same thresholds.

  38. Except that there is a difference between corporations being protected, and individuals using the assets of corporations to exercise their rights. I think a better system of limits is a good idea, but I don’t really think that a corporation’s personhood is the key issue here. See the link I posted in one of my other comments.

  39. I certainly accept Laswell’s ‘realist’ definition of power – but then it is incumbent to trace the who,the how, and the when. In the ‘how’ the court reflects prevailing clusters of political-economic power (corporations and the elites that manage them) and makes laws that accommodate that reality -just as it did in Santa Clara in 1886. The larger question is whether as citizens this definition of ‘politics’ is desirable and whether the ‘Republic’ has any substantive reality if access to institutional power is permitted in this way.
    If one turns to the work of another set of political theorists say, Habermas, Tully, Ben Habib, our current situation has effectively ended deliberative democracy as it has been understood since Aristotle and replaced it with something else.
    Laswell (like Michel’s iron rule of oligarchy) merely identifies that elites will always seek to undermine polycentric, deliberative institutional arrangements. What one does to counter that reality is what matters and is at the heart of the ‘political’.

  40. Perhaps if corporations have rights as persons, they can also be arrested, imprisoned, declared insane, or even (Texas style) executed — just like the rest of us persons! And if they cannot be, and we can be, then isn’t that an excellent legal argument that they are not real persons?

  41. Lot’s of helpful comments on the topic. Thank you everyone for giving this serious thought.

    However, your remedies are all soooo last century.

    You recommend working within a system that is now owned by sociopathic, immortal corporations who, if push came to shove, need only out live you to get what they want.

    The next generation of citizens won’t even know a day when corporations did not openly and with constitutional protection run and rig elections toward predetermined outcomes. And the MSM will be 100% in collusion on this. Surely the education system will be recruited as well when new textbooks are issued extolling the virtues of corporatism.

    We have a few years only to undo what has been done. I have no idea however how to use those few years. The next election will seal the fate of all elections that follow, forever, if we cannot undo what has been done by that time.

    Am I being unfair? Explain where I am unfair. Explain how mere humans will be able to counter this with their bare hands.

  42. Japan is a big corporate society — yet of all nations, they have the most egalitarian distribution of wealth. How do they do it?

    In contrast to our health care problems, Japan’s economic equality is reflected in their excellent health. Among the nations of the world, inequality, rather than poverty per se, is statistically linked with poor health.

  43. I don’t know what has happened to Lessig’s judgement lately. This seems like a remarkably bad idea, and the main evidence for that is that he can’t even provide a rough outline of what this theoretical and unspecified amendment would say. What does “the power in Congress to preserve its own institutional independence” even mean? Concretely?

    Corporations being “persons” really isn’t the issue. Speech is either unrestricted by law or it’s not. The speech that you think is obviously not to be allowed today will be your speech banned tomorrow. FOX News is *already* a 24/7 political commercial anyway. That there is no left-wing equivalent isn’t because it wouldn’t be allowed, it’s just that – funny thing – rich people aren’t that left-wing.

    I think RA and Bill are on the right track. As long as elections are won or lost based on a battle of paid TV ads, with an assist from sucking up to TV “news” divisions, then you have already narrowed the possible outcomes to those acceptable to The Money.

  44. It is possible. It takes really strong leadership, which has been conspicuously absent recently.

    With the exception of Dick Cheney. He was a leader, but the exact polar opposite of what The Nation needs.

  45. This is the real problem. If the grotesque twisting of the 14th amendment to call corporations “people” hadn’t happened, the 1st amendment would never enter in to this argument. Get that ruling thrown out and you don’t need to allow corporations these rights at all.

  46. If you form a corporation, you’re looking to be protected from losing everything you have should the business get in trouble. It doesn’t need free speech rights. It’s a protective measure, and should only be a protective measure. Nothing more.

  47. Bill said at one point “Take back the airwaves”.


    The airwaves went into corporate hands easily. They won’t give those back in any form. Period. There is no mechanism that can prise the air waves free, unless we erect a massive pirate network.

    RA said “balanced coverage”. What?!? The MSM is a bunch of corporations with corporate goals, does anyone realistically think they won’t play the game now? And how long do you suppose those laws restricting how many media outlets Ruppert can hold in a single market will remain standing? A year? Less? Then what … he owns them all.

    So what else is there? There is nothing. People are talking like there is a defense mechanism inherent in the system, but there isn’t. The system’s immune system was corrupted decades ago, blown.

    How do we correct this from the outside? That’s the real issue I propose. Lessig is going all “amend the immune system” on us, but unless we scrap it and start over I don’t see how we get around the 1st and the 14th. Ever, forever.

    Means bayonets. God help us.

  48. The tools to use for defense of liberty are: soap box, ballot box, jury box, ammo box. Use them in order.

    Seems to me the ballot box has long been useless and jury box just failed. Guess where that leaves us.

  49. Yeah, Dick Cheney, leader of the lunatic authoritarians.
    We already have a congress full of dicks. One more won’t matter.

  50. Cougar — ‘scrap it and start over’ — that’s why we must go over the falls. I think we have to break up, rather like the USSR did, and try to fix things state by state. Try different experiments, or model ourselves on what works for some other nation — and then replicate the successes. I don’t think it will be a matter of weapons, or violence. The coming generation is really aware of global and environmental issues — and great networkers and communicators. They are going to approach these old problems in new ways.

    As for political cures, I’m probably dreaming here . . but I wonder what would happen if we concentrated on one issue and all got sick on the same day . . dead stop . . say the first of each month . . then two days, then three . . until they set the thing right. Then tackle another issue. We are workers and consumers, we are the blood of their circulation system. Our daily lives in the machine is all we have, so it is what we can refuse — in unison. The rulers are very skilled at divide-and-conquer tactics — so we would have to free ouselves from their divisive tricks to succeed. Right now, we are a long way from being capable of unified action.

  51. Adam, Rick S, David Brizie,

    I don’t get it. If you believe passionately in a cause or candidate, and you wanted to give all your earthly wealth to promote it, he, she, or they, why would you want to disallow this?

    It seems to me the Supremes made the right decision here. Freedom of speech is abridged if you don’t also have freedom to publicize your opinions.

    Please show me where my thinking is wrong.

  52. Steveareno,

    Please allow me to speak for Adam, Rick and David. (And offer my apologies to them in advance.) The reason the Supreme’s made such a blunder is the basis upon which a democracy is founded. That being when society makes decisions all of her citizens are equal. One person, one vote. When money and speech are equivalent, we are not equal. In fact, we are by definition not equal. The tiny sum that I am worth is meaningless compared to most other ‘human’ citizens which in turn is similarly dwarfed by most corporations. What you are supporting (money = speech) will likely lead us down a path that is not dissimilar from a monarchy. Or some other polity where power is concentrated in the few.

    If a citizen feels that a candidate or cause is worthy of such sacrifice that you mentioned, that citizen has the opportunity to quit their jobs and dedicate their lives to convincing their fellow citizens of the wisdom of their candidate/ cause. That is the core of a strong democratic society. Citizens convince one another based on the merit of arguments, not citizens bribing each other or using their wealth to sway opinions.

    As our Declaration of Independence so eloquently states, ‘all men are created equal’. That concept can not be true at the same time influence and wealth are related to one another.

  53. JBlight,

    Thank you for your well reasoned and polite reply.

    “All men are created equal” means only that all persons have equal rights under the law, nothing more. Some people are born with advantages and others without, but all are treated equally under the law. And if all people are indeed equal under the law, why prohibit one person from supporting a candidate or cause with money? You may disagree with this person, and I expect from your reply that you would do so in a polite manner, but so what. If a cause is only supported by a few, yet you believe in it, why not support it with financial backing to bring knowledge of the cause’s merits to a greater audience. If indeed “Citizens convince one another based on the merit of arguments” they should have no fear of “citizens bribing each other or using their wealth to sway opinions.”

    I’m sorry, but I still do not see any evil in in anyone spending their money in support of their beliefs.

  54. If that person is a PERSON, I think you have a point – they probably should have the right to buy an election (leaving that little problem aside for now). But corporations are NOT persons. They cannot vote. They have special legal status that persons cannot have. Equating a corporation with a person is not even comparing apples to oranges – its more like comparing apples to chainsaws.

    That is the problem.

  55. The campaign finance law could easily be changed to eliminate donations directly by corporations: Merely change the law so that only “natural persons” may make donations, and then make the donations possible to only the candidate directly. Eliminate all forms of contributions from bundlers, unions, corporations, 572’s, PAC’s, parties, the works. Eliminate all committees to elect Jim Joe Jacky Bob or other such contrivances; allow donations only directly to the candidate. Place an upper limit of $X per donor per candidate per election cycle.

    Then add in strict accounting and reporting requirements for these donations.

    Since only natural persons have the right to vote, and only natural persons have the right to hold office, this is entirely consistent with our Constitution.

    The reason why we don’t see the anti-corporation-donation people picking up on this idea is that they’re unwilling to eliminate donations from unions, 501(c)’s and the like. Eliminate contributions from all non-natural persons and we rapidly reduce the amount of money in politics.

  56. I’m not endorsing the fascist, I’m just saying that he was a strong leader like Hitler or Stalin. All were inarguably strong leaders that were detrimental to their respective citizens and neighbors.

  57. You are close to the truth here. Transparency is the solution.

    How can anyone seriously think representatives are going to make real campaign donation reform for themselves?

  58. Are unions people? Unions seem to donate more than their fair share….at least this brings back some balance between unions and corporations.

  59. You’ll never reduce the amount of money in politics. You’ll only chase it around with about as much success as herding cats.

    I suppose you believe that government creates jobs too. Sorry, government creates nothing. It only shifts things around. That is called redistribution and is more appropriate when a person invades anothers god given rights. That is one of the few places government is useful.

    But I am glad to see you recognize the unions as the other side of the coin.

  60. So lets follow your lead and abolish government!
    Good idea! Abolish the framework on which our society and economy are based. Yeah, government creates nothing! Kind of like Somalia – they abolished their good for nothing government, and we should aspire to follow their brave example!

  61. DSA, as I understand the problem, your solution doesn’t work because of the 14th Amendment guaranteeing all “persons” equal protection under the laws. Once the SCOTUS decided 5-4 that corporations were persons, we lost the right to have different laws apply to “live” or “natural” persons vs. those other kinds of persons.

    This is why Barney Frank and other are exploring corporate formation theories of solving the problem. Corporations are creatures of the state — they did not exist under common law and are purely statutory entities. Their very existence depends on statutes that authorize their existence at the state level. The theory is that we could condition their existence on following certain campaign finance restrictions or prohibitions.

    Of course, that doesn’t solve the even bigger problem of foreign corporations. I’d love the hear from those on this blog who support the Court’s decision explain why unlimited financing political advertising by, say, Dubai World or PetroChina isn’t a threat to our democracy. I assume none of you believe vote buying or voter fraud is good for our democracy, yet foreign-paid attack ads would appear to have a much greater influence on a politician’s behavior than the possibility of voter fraud.

  62. The responses seem quite pessimistic, but have a few questions to the writers. Where are the heroes, heroines, champions of the people or are they all extinct? If there are any left, why aren’t they making a difference?

  63. Money isn’t speech, period. It may buy ink and air time, but it isn’t speech. Similarly, corporations aren’t “persons”.

    Corporations don’t vote, for a reason. Freedom of the press was added the the First Amendment because the press, unlike other corporations or businesses, held a special place in the discussion of public affairs. Of course, if the founders had anticipated Rupert Murdoch, the citizens of whatever jurisdiction that he wanted to influence(be it country or church), might have omitted the freedom of the press clause. But it seems to me–a mere mortal and not a Supreme with an agenda to return the country to Gilded Age power concentration–the guarantee of freedom of the press might have been intended to grant a very narrow guarantee of freedom of speech to a delimited class of business. Whatever language the amendment takes should find a way to keep corporations from posing as the press, because that is the next step for the Kochs of the world if this activist and unfounded decision is challenged by amendment.

    Corporations don’t vote and they don’t talk. Folks behind corporations can talk all they want, but corporations were neither granted nor deserved free speech rights, at least insofar as political speech is concerned.

    We shouldn’t need a constitutional amendment, but we do. Any politician that votes against it should be made to walk up and down the hard streets of town in hot pants and a tube top (or tight jeans and a beater shirt) to demonstrate her/his true profession.

  64. The court called it correctly.
    The constitution forbids the government from making laws to limit free speech.
    Freedom of speech was extremely important to the founders, they thought freedoms to congregate and discuss the issues would allow for votes to be cast with as much prudence as the people could bring to bear.

    If one believes that ones neighbors are idiots who will not be able to understand their own best interests and act upon them by voting, we admit that the problem is not corporations or money in politics, its that we do not trust each other to make good decisions. The idea that Democracy will automatically get better outcomes than other systems is a myth, Prop 8 in California is a case in point, a decision was reached that is difficult to defend except that it was reached by a democratic process.
    The voters if they choose, can elect good legislators, if they do not choose to, then they have no one to blame but themselves.
    All this talk about corporations is a way to avoid looking in the mirror and taking responsibility for sins of omission and commission.

  65. Heroes? They’re getting hard to find but: Gore Vidal (sample essay, among many, “The Last Empire”) and Lewis Lapham (Harper’s Notebook, “Versaille on the Potomac”) are probably to intellectual and too patrician to appeal to the masses, and are almost extinct due to old age. Matt Taibbi (blistering condemnations of Wall Street and Congress in Rolling Stone) might appeal to younger readers.

    Why aren’t they making a difference? Simple. No access to MSM.

    Change from within the system? Almost impossible. To quote Vidal: “No ruling class has ever abolished or even reformed itself.” How to effect change? Short of violence, the only possibilities I see are mass boycotts of selected corporate products, picketing of polling stations and refusals to vote, or general strikes. Difficult to organize but effective.

  66. I have often said with relation to the criminal corruption going on in banana republics, that one way to solve it is to introduce legislation that would permit lobbying a la USA. Here you see it, here you don’t!

    On the issue of voting age please review a report by the US Census Bureau, titled “Voting and Registration in the Election of November 2004” you can find it here:

    Click to access p20-556.pdf

    In this report the citizens are categorized according to their: Sex, Race and Hispanic Origin, Nativity Status (whether born in the US or naturalized), Age, Marital Status, Educational Attainment, Annual Family Income, Employment Status, Tenure (whether they own or rent the house), Duration of Residence at the place where they now live, Veteran Status and the Region where they originally come from.

    Nowhere is there to be found how fathers and mothers voted! Clearly the children and therefore the families are of little interest to political analysts and therefore presumably to the candidates.

    I invite you to http://onechildonevote.blogspot.com/

    Finally, with respect to Lawrence Lessig I believe it is good to remember that without his strong and clear voice for freedom on the web and which has served as a counterweight to all those commercial interests in using the web by limiting it, we could all for any practical purposes be sitting in China now having to send our comments to Baseline by US Post.

  67. You don’t have to limit free speech, especially political speech. But you can limit commerce. Anyone who speaks freely shall forfeit their right to trade on what they lobbied for. That would keep money out of politics.

  68. What’s the old saying which we have heard so many times? Money talks and BS walks. In this case a lot of money talks really loud and a small amount of money in the electoral process is, in fact, these days, nothing by BS. Obama got elected by raising money from many small sources, and a few large ones, including, unfortunately, Goldman Sachs, notice that he is, by having S & G making economic policy and B now reconfirmed, listening to the money, and has grown deaf to the multitude of BS in his campaign coffers. This is yet one more example of the power of money in influencing public ruling and policy. I know that if the Supremes’ decision goes unchallenged, that it will truly mark the end of anything resembling democratic representative government. We must find some way to act effectively to forestall the end of America as it was intended to be and should be.

  69. Can we look for examples in other parts of the world? Which nations are the most democratic and the least corrupt? How do they prevent corruption?

  70. I do not know how to prevent corruption but as a citizen of a country that has a lot of oil, Venezuela, I know very well how you foster corruption… you hand over all the oil revenues to the State, in other words the Indian chief who runs the state, currently chávez… who then has to graciously sparse out oil favours, through cadres of close bureaucrats and advisors.

  71. I don’t think you can prevent corruption. It’s like getting older. Defects in your body start to accumulate and in the end you are a sick (wo)man. Purification starts with rebirth, but you have to die before that can happen.

  72. Googled it up — seems they have international conferences about control of corruption. Who knew?
    Transparency International, using a 1-10 score, rates New Zealand first with a score of 9.4. U.S. comes in 19th. (Canada 8th) Failed and failing states come in with scores between 1 and 2. So 19th is not too bad. I think the US scores rather well because on the local government level one need not bribe officials to get something done. The corruption is at the top where the big money is. But then, even locally, how many people who work for corporations are violating their consciences in order to keep their jobs?

  73. “Stemming corruption requires strong oversight by parliaments, a well-performing judiciary, independent and properly resourced anti-corruption agencies, vigorous law enforcement, transparency in public budgets, revenue and aid flows, as well as room for independent media and a vibrant civil society.”
    Hughette Labelle, Chairwoman of Transparency International

  74. Thank You Mr. Leonard.
    I truly appreciate someone who’s commentary reflects a solid grasp of history.
    So what is at stake in these discussions is not only the concept of “corporation as person” but the one equally important of “money as speech”. Why would money be equated with speech, I wonder? What is the rational reasoning for such a leap?
    I had, in deed, forgotten that the American constitution was more concerned with issues of private property than the democratic political process. No surprised Republicans cling to it with such fervor!!
    I guess that’s what’s understood in America when the idea of “Democracy” is spoken of. It is so easy for a foreigner to misunderstand all of this.
    America (i am a Canadian) does appear to have an antiquated system of government based mainly on capitalistic “laissez fair” prerogatives thus less flexible than is required to function properly.

  75. Why not try a simpler approach that is sure to stem the tide of money in politics. Congress has the authority to write its own rules. Congress could create severe penalties on members who vote for legislation to benefit any of their contributors.

    I think that it should be a felony, but it is doubtful that they would go that far.

    Corps are a creature of federal statute and not constitution. Congress can regulate corps.

    A quick look at the tax code will find numerous Corps, registered to a mail box off shore as a foreign corp to avoid federal taxation. Each foreign corp should be banned from making contributions. It would be up to the Supreme Court to rule and Alito has prejudged the issue by telling the world that he not allow foreign corps to contribute.

    Are political / issue advertising or contributions tax deductible? If so, eliminate the deduction. This will stop some or make it more expensive.

    Additionally, look at what percentage of the net income of a corp could be used for political purposes.

    Make sure you do not appoint to the Supreme Court any more Conservative Judicial Activist’s. It appears, that these judges believe that the elite corps should have more power in the nation than the rest of us. Contrary to the fundamental principles of our democracy.

  76. Enough with the SCOTUS. Real simple. I want a “no” vote next to each canidate’s name for national office.
    You would not have to vote for the other party’s choice or your own party’s choice.
    You still get one vote.
    Set a minimum on the votes needed based on the total number of registered voters in that state you vote in. If you can’t make that number, you were not able to secure enough positive votes, you’re out.
    Third party independents would have a chance. The left and right party would would have to stand up people who were NOT the lesser of two evils.
    The corporations can spend as much as they want. You can spend as much as you want. No restrictions on money.
    It’s time to tell both party’s leadership and their corporate backers, fine, spend all you want. We can just vote no. The left didn’t get enough votes and the right got too many no votes.
    Do it again. Its your dime. Spend it. You have deep pockets and plenty of money.
    You will get what you paid for.
    We the votes will decide if its’ the flavor we like the most.
    Would it be messy? I hope so.
    Is it going to happen? Not as long as the left-right party gets to do what it wants to do.
    It would put the power of the vote back into the hands of the citizen’s who do vote.

  77. I’m not saying you are entirely wrong, but you should read Greenwald’s (of Salon.com) take on this. He brings up a lot of point as to why limiting corporations breaks the system and in the end, doing so is somewhat arbitrary.

    As a simple example, why should say “MoveOn.org” get a free pass to spend when say “Shell” shouldn’t? It’s a very thin line to be walked.

    Again, I am sympathetic, but it’s a very nuanced issue that would be difficult to put in a coherent amendment.

    All that said, I do agree that it does not spell good things for our democracy.

  78. The only way to reverse the SCOTUS decision will be with a future SCOTUS decision. Given the 5-4 vote in this case, it could happen.

  79. But of course, any type of organization would have to be excluded since the more organizations have a direct voice the less the individual citizen have theirs, and Constitutions are written to defend individual citizens.

  80. One difference between the U.S. and most of the other OECD countries is levels of electoral participation. In the U.S. a far lower percentage of those eligible actually exercise the franchise – often well less than 50% whereas in most of Europe the rate is 70-80%. Declines in electoral participation are not new. Active party affiliation first occurs during the ‘progressive era’ – at exactly the time when the corporate re-organization of the economy took place. Combined with widespread alterations of municipal government structure (e.g. a shift from ward-based to at-large aldermanic representation) undertaken purportedly to end ‘corruption’ (i.e. ethnic bloc voting), political parties became increasingly detached from popular sentiment. This left popular democracy to various ‘fringe’ elements in the form of populism (which has always had both left- and right-wing versions). But serious political competition effectively ceased. It was replaced by the appearance of political contest; that is: throwing out the majority party in times of crisis (e.g. great depression or the last election) but corporate liberalism has ruled without interruption since Teddy Roosevelt’s time. What has altered is the cluster of corporate interests – a shift from a mix of manufacturing, extraction, and railroads to the present finance + defense contractors. Is it any wonder that electoral turn-outs across the board (from municipal to national) are less than 50%? There isn’t real political competition! There is managed political competition equivalent to a corporate managed economy.

  81. Neither MoveOn nor Shell (your examples) should have free passes. Neither are persons.
    “We the People…” is the main point of the Constitution because without People, what is the point?

  82. Historically in Western civilization for many centuries money was directly associated with excrement. It is interesting to read what psychologists have to say on this subject — filthy lucre. Norman O. Brown is a good source on this.
    As for “money is speech” — I too find that a stretch. I have heard that in some cultures a male’s seed is known as “his word.” And then there is Christ as the Word of God. Perhaps it is associating the word with power. As in “Money talks.” As in “dictator.” But if desire for money is not a driving force in your life, then the idea of money-as-speech would not be very meaningful. Personally, I have chosen to be independently poor. I think of money more as a circulation system like blood cells. We are victimized by those who create systems of free-flowing abstract money. I wonder if we could solve our problems by somehow making money less virtual, more local and concrete .

  83. Managed political competition for sure. It is just weird how many elections are decided by a mere handful of votes. What are the chances, with millions of voters, that elections should so often be so extremely close?

  84. Steveareno:

    “It seems to me the Supremes made the right decision here. Freedom of speech is abridged if you don’t also have freedom to publicize your opinions.
    “Please show me where my thinking is wrong.”

    First, a logical point upon which I think that we agree. Money is not speech.
    Second, we agree that freedom of speech is meaningless if we are unable to disseminate it, if we are unable to tell others what we think.
    It does not follow that freedom of speech is abridged if we are allowed to spend unlimited amounts of money to disseminate it. Why? Because, unlike speech itself, the broadcasting of speech beyond our immediate audience is an economic good, that is, the supply of it is limited. That is why it costs money. Buying an economic good limits the ability of someone else to buy it, because the supply is limited. Thus that purchase abridges the free speech of others, if free speech means the freedom to broadcast. Limiting — not denying –, the dissemination of one person’s speech protects the freedom of speech of everyone else.

    Note that the freedom of speech is not like the freedom of the press, since the press is an economic good. Now the press can be used to disseminate opinion, and it is. Thus the broadcasting of opinion is protected by the freedom of the press. If the Supreme Court wanted to protect the freedom to disseminate opinion, they could have done so by appealing to the freedom of the press. There was no necessity to enlarge the freedom of speech to cover that.

  85. I wrote: “It does not follow that freedom of speech is abridged if we are allowed to spend unlimited amounts of money to disseminate it.”

    Should be: “It does not follow that freedom of speech is abridged if we are ***not*** allowed to spend unlimited amounts of money to disseminate it.”

    Of course. :)

  86. jw: “All individuals who vote pay an elections tax, a minimal, annual flat fee. No other funding is used for elections.”

    Redleg: “poll taxes have already been banned.”

    Yes, but only as a prerequisite for voting. Better to fund elections on a non-partisan, per capita basis. No need for an actual tax.

  87. DCL writes: the franchise “in most of Europe the rate is 70-80%”

    It might be higher in Northern Europe. In France university tuition is funded by the government. The low franchise in the United States could be related to — the cost — of acquiring higher education. IMHO education and democracy are mutually inclusive.

  88. true. Per capita funding would be a big improvement over the status quo. A well run campaign based on an equal budget (to your opponent) would really say something about the competence of the candidate.

  89. Never re-elect *anybody*. Eliminate the need for
    slumbag qualifications: mucked in local politics,
    then state politics and then….

    Elect good smart well-intentioned people. You know:
    like how America got started….?

    When their terms are up, let them go back to being a farmer, a printer, a lawyer… you know: a person, again.

    We demand the worst, that wannabes bathe in the sewers of minor corruption before moving on to more major corruption. What *good* American would play that game. I certainly would not! …Lady in Red

  90. However, the corporation is a “persona” (despite the fact that this misnomer was a fluke of historic and opportunistic coincidence) so we jump to libertarian ideology that persona means “individual” and not just any individual but a full fledged and pledged “citizen” (?????)
    individual and therefore…ERGO…is consequently entitled by (hint: fallacy of composition…) full protection under the power of Supreme Court predication that all “men” (therefore all fictive facsimiles as well) are created equal.

    With the logic of this meandering through fictive reason it is clear that the end is justifying the means and we are being handed inequality by “other” means indeed. How is it that money can be equated with free speech (to suppress money is to suppress speech? Free expression by tyrannical monopoly is a complete perversion of reality. Every fool knows that people are bought and sold with power broker money. To deliberately subject the political election system to power brokerage is a license to corrupt.
    The only answer for a constitutional amendment is to make public finance mandatory and a fixed rate tax. Every corporation not only has a right to contribute, but because the infrastructure of this great country actually permits and facilitates their ability to acquire a sustainable existence, they are obligated to do so. The primary core of this amendment, however, is that all election money is pooled to an equal share of utilization by appropriate candidates and recognized political party acquisitions for that purpose. No more direct patronage under the systemic umbrella of political market commodity trading.

  91. Redleg,

    The individual vs. group argument, for what it is worth, goes something like this:

    Assume that you as an individual are allowed to spend $5000 to promote your own political speech. You and a friend then decide to collaborate, together spending $10,000 to promote a political cause. You form a non/profit in order to legally pool your resources. Do you now, as a group of people (a ‘corporation’) lose that right to free speech?

  92. 3-D: The basic argument in favor of protecting the free speech rights goes something like this:

    You have the right to spend money to produce works of political speech. You and a friend then decide to pool resources. You form a non-profit corporation into which you each contribute time/money/etc. The group of people (your non-profit corporation) retains the free speech rights of the individuals of whom it is composed.

    So there you have it, for better/worse…

  93. The fundamental aspect with lobbying, and which behooves “the people” to ascertain, is to always make sure the difference between an allowed influencing and a prohibited buying exists… and when doing so the people cannot afford not to be extremely strict.

    How to do it? By allowing all that clearly has to do with influencing such as generating information and strictly prohibiting anything that seems to be even remotely connected with buying, such as a campaign contribution… and by making sure that those actors who do not accept these rules are immediately expelled.

  94. so much to distill here – and please forgive my naivety or ignorance

    to pick-up on some points:
    … quote: Congress could create severe penalties on members who vote for legislation to benefit any of their contributors …
    — any elected representative who is asked to discuss or vote on anything of direct concern to any sponsors is in conflict of interest, needs to declare the conflict, and recuse – this might make any corporation think twice about sponsoring

    … the corporation as a person
    — since a corporation does not enjoy the right to vote, it is really not an equal, and therefore can be subjected to unequal treatment

    … the corporation as a contributor
    — since the majority of the multi-nationals and the large nationals are owned by shareholders, it behoves them to first seek their permission to even take part in politics, and then it should represent the points of views of its majority owners

    otherwise, from an outsider’s perspective, the US does seem to have lost its way, culturally, societally, ideologically, militarily, and financially – it really looks like an empire in decline

    it is below the lowest common denominator in its level of political discourse, and by now it does feel like nothing short of a Revolution ‘à la Française’ could stop this downward momentum or eradicate the moral corruption of its leaders – it’s a question of time

    cleaning house means:
    . to stop thinking that ‘God is with us’
    . discard the ‘either you’re with us or you’re against us’ mentality
    . to become humble and stop trying to export its point of views and way of live to all the other nations of the world.
    . be respectful of the potential of the United Nations and support it’s continued emancipation (by first paying its long overdue account)
    . to stop bragging it is THE best nation in the world (i happen to think MINE is!)
    . mind its own business and stop acting like it is the world police
    . clean its own house thoroughly before even thinking about straightening any others
    . be knowledgeable and respectful of other cultures

    chances that some or all of this will happen = 0%
    guess what? the emperor has no clothes!
    corruption reigns supreme – its all about MONEY!

    and, as Ron Paul has said, the military and the CIA are in charge
    so why should we care at this late stage that corporation do this or that – they will anyway

    politically, as individuals, we are nobodies, which is true for every nations on earth – it is a game of pretension, like religion and the stock market

    and like religion and the stock market, our faith is in the hands of the mighty

  95. If incorporation allows individuals to donate more than once to a campaign (assuming individual limits are still constitutional), I find that detrimental to democracy.

    And allowing unlimited advertising spending against a candidate, rather than endorsing one, is also detrimental to democracy. The government gave away the R-F spectra for free (which was the best way to allocate it – I can argue that topic in great detail but not here/now) – it was a mistake to revoke the equal airtime rule.

    Democracy should be about voters. Corporations, PACs, Unions, etc. can not vote, and allowing them the disproportionate influence that they (already) have through the exercise of their right to “free $peech” lays waste to the democratic process.

  96. I’ve always been against term limits, believing that elections were the limiting factor.

    I was wrong.

  97. That seems to speak to the nature of the issue here. Corporations are given the right to act as real persons, yet are not placed under the same restrictions. They get the legal advantages of being considered a person without the responsibilities and accountability that goes along with it. It has to be a two-way street, if corporations desire to act as a person, then they must be held accountable as a person would be. If a single group of individuals contributed to a global recession, in the manner that corporations have, they would be subject to persecution; the double standard that exists serves to protect the corporations from the consequences of their actions. Personally, I’m fine with corporations being considered as persons, as long as they are held to the same standards of behavior as all other persons.

  98. I personally don’t believe that a Constitution Amendment would succeed. It takes 2/3rd of Congress then must pass 2/3rd of States to ratify an amendment. This would take years and I can’t imagine the folks oppose to this will sit idly by while this is going on.

    Total Public financing of all campaigns to public office based on potential pool of voters for that office is the most sensible solution. Create a high means test to indicate that the candidate is viable. Each candidate needs to provide a voter petition of 3% of available electorate to be able to be placed on the ballot. Third party indirect assistance (Swift boat advertisement) to each candidate will not be allowed. Mandatory debates between candidates are requirement else the candidate will not be placed on the ballot. Plus, if the candidate is incumbent, the candidate needs to explain their past voting record and challengers need explain how they would do things differently. Any information written about the candidates by the press will be fact check(by a non-partisan group) and any mistakes must be posted on the front page of a newspaper or at the beginning of a broadcast if a television show plus pay a fine for each offense. The system is broken because how it is presently done. Money speaks if the whole goal is to raise the most money to drown out any possible competition by any means possible (create an uninformed electorate) — this is not democracy but plutocracy!

  99. Unfortunatley neither you nor I were around in 1886 to make that case to the Supreme Court – we just have to live with the fallout.

  100. I have also been swayed towards favoring term limits. My question now is how can a legislator build up enough clout in a limited time to take on moneyed interests?

Comments are closed.