The most notorious case of activism by the Roberts court was its ruling inCitizens United v Federal Election Commission, which overturned key provisions of the McCain-Feingold campaign finance law, rules that kept corporations — and their lobbyists and front groups (as well as labor unions) — from spending unlimited amounts of cash on campaign advertising within 60 days of a general election for federal office (or 30 days before a primary).
To arrive at their ruling, the court’s conservative majority stretched the Orwellian legal concept known as “corporate personhood” to the limit, and gave faceless multinationals expansive rights to influence our elections under the auspices of the First Amendment.
Early on, the plaintiffs themselves had decided not to base their case on the First Amendment. It was the conservative justices themselves who ordered the case re-argued fully a month after a ruling had been expected, asking the lawyers to present the free speech argument they’d earlier abandoned.
In his dissent, Justice Stevens noted that it was a highly unusual move, and that the court had further ruled on a Constitutional issue that it didn’t need to consider in order to decide the case before it — the diametric opposite of the principle of “judicial restraint.” He charged that the conservative majority had “changed the case to give themselves an opportunity to change the law.”
Corporate personhood's origin in English law was reasonable enough; it was only by considering companies “persons” that they could be taken to court and sued. You can’t sue an inanimate object.
During the 19th century, however, the robber barons, aided by a few corrupt jurists deep in their pockets, took the concept to a whole new level in the United States. According to legal textbooks, the idea that corporations enjoy the same constitutional rights as you or I was codified in the 1886 decision Santa Clara County v. Southern Pacific Railroad. But historian Thom Hartmann dug into the original case documents and found that this crucially important legal doctrine actually originated with what may be the most significant act of corruption in history.
It occurred during a seemingly routine tax case: Santa Clara sued the Southern Pacific Railroad to pay property taxes on the land it held in the county, and the railroad claimed that because states had different rates, allowing them to tax its holdings would violate the Equal Protection Clause of the 14th Amendment. The railroads had made the claim in previous cases, but the courts had never bought the argument.
In a 2005 interview with BuzzFlash's Mark Karlin, Hartmann described his surprise when he went to a Vermont courthouse to read an original copy of the verdict and found that the judges had made no mention of corporate personhood. “In fact,” he told Karlin, “the decision says, at its end, that because they could find a California state law that covered the case ‘it is not necessary to consider any other questions’ such as the constitutionality of the railroad’s claim to personhood.”
Hartmann then explained how it was that corporations actually became “people”:
In the headnote to the case—a commentary written by the clerk, which is not legally binding, it’s just a commentary to help out law students and whatnot, summarizing the case—the Court’s clerk wrote: “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.”
The discovery “that we’d been operating for over 100 years on an incorrect headnote” led Hartmann to look into the past of the clerk who’d written it, J. C. Bancroft Davis. He discovered that Davis had been a corrupt official who had himself previously served as the president of a railroad. Digging deeper, Hartmann then discovered that Davis had been working “in collusion with another corrupt Supreme Court Justice, Stephen Field.” The railroad companies, according to Hartmann, had promised Field that they’d sponsor his run for the White House if he assisted them in their effort to gain constitutional rights.
So here we are entering the 2012 election cycle officially next week with the Iowa caucuses, and rich corporations can spend as much as they want to influence our democracy. Citizens United is a decision of epic, horrible consequences that ranks up there with some of the worst in our history.
One way to overturn what the Supreme Court says is to change the Constitution itself. It's not easy, as you might recall from civics class: Congress must either propose amendments with 2/3 of each chamber passing or call a national convention when 2/3 of state legislatures ask for one, then 3/4 of the state legislatures or state conventions must ratify what comes out of that process.
I am a proud sponsor of a number of bills that would respond to Citizens United and begin to get a handle on the problem. But more needs to be done, something more fundamental and indisputable, something that cannot be turned on its head by a Supreme Court decision. That is why I proposed the constitutional amendment in the Senate as a companion measure to an amendment proposed in the House of Representatives by Congressman Ted Deutch.
We have got to send a constitutional amendment to the states that says simply and straightforwardly what everyone – except five members of the United States Supreme Court – understands: Corporations are not people with equal constitutional rights. Corporations are subject to regulation by the people. Corporations may not make campaign contributions — the law of the land for the last century. And Congress and states have the power to regulate campaign finances.
You can see more about his proposal and sign a petition in support at his official website. But in Vermont we can do more than do the online petition thing. We've got a long, vibrant history of the People making our voices heard through direct democracy at Town Meeting, so you might also consider helping get an item on ballots and meeting agendas across this state this March.
In light of the United States Supreme Court’s Citizens United decision that equates money with speech and gives corporations rights constitutionally intended for natural persons, shall the city/town/gore of___________________________________ (municipality name) vote on ___________________(town meeting date) to urge the Vermont Congressional Delegation and the U.S. Congress to propose a U.S. Constitutional amendment for the States’ consideration which provides that money is not speech, and that corporations are not persons under the U.S. Constitution, that the General Assembly of the State of Vermont pass a similar resolution, and that the town send its resolution to Vermont State and Federal representatives within thirty days of passage of this measure?
To get an article placed on the warning for Town Meeting:
The petition must contain signatures of 5% of the voters requesting placement of articles on the warning for the Annual Meeting and must be received by the Selectboard or the School Board at least 40 days prior to Town Meeting. 17 V.S.A.§2642(a).
- Although the law requires that petitions be received 40 days before the meeting, most Selectboards and School Boards like to post their full warning as soon as possible (40 days before the meeting), so it would be most courteous and a best practice to deliver your petition to the Town Clerk before the last Selectboard or School Board meeting that will occur before the 40th day before the town meeting. Call your Town Clerk and they can advise you of the best time to file.
So we have until no later than January 26th, 2012, to gather the appropriate signatures. In our little town of Fletcher, we need about 45 registered voters to sign. In other locales that number will obviously be higher. If you would like to sign in your town or otherwise get involved, please check out the growing contact list. And please spread the word to all the real persons you know, whether it be via Facebook or, you know, real life.
The more we build a groundswell at the local and state level, the more chance we have to restore “one person, one vote” and take our democracy back from big spending corporations whose mantra is “one dollar, one vote.”