Authors: Jeffrey D. Clements,Bill Moyers
Some scholars call the constitutional amendment process a “republican veto.”
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By that they mean that the American people, the real sovereigns in our system of government, retain the last word when egregious Supreme Court decisions undermine our understanding of democracy and the Bill of Rights. At least six times, Americans amended the Constitution to overturn Supreme Court decisions.
Citizens United
deserves the same fate.
Amendment campaigns, even campaigns like the Equal Rights Amendment that fall short, spur national conversations in times of crisis and doubt. They define our values and shape us as a people. They keep the Supreme Court honest and accountable to the people. They make government of and by the people real again.
The People’s Rights Amendment will overturn
Citizens United
and settle once and for all what most people have always known: our Constitution protects the rights of people, not corporations.
Here’s what the amendment says:
Amendment XXVIII
S
ECTION I
. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.
S
ECTION II
. The words
people, person,
or
citizen
as used in this Constitution do not include corporations, limited liability companies, or other corporate entities established by the laws of any state, the United States, or any foreign state. Such corporate entities are subject to any regulation as the people, through their elected state and federal representatives, deem reasonable and as are otherwise consistent with the powers of Congress and the States under this Constitution.
S
ECTION III
. Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and all such other rights of the people, which rights are inalienable.
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This is not radical; just the opposite. The People’s Rights Amendment returns the Constitution to what it always has meant. The People’s Rights Amendment makes clear, once and for all, that the Bill of Rights was created for and by the American people, not corporations, and that corporate abuse of the judicial power to declare laws unconstitutional must end.
A robust campaign for the People’s Rights Amendment already is under way. Fully 82 percent of Americans—Republicans, Democrats, and Independents—already support a constitutional amendment to overturn
Citizens United
.
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In the year after the
Citizens United
decision, nearly a million people signed
resolutions calling for a constitutional amendment, and people are organizing in every state in the country.
As a cofounder of Free Speech for People, I traveled to Washington in late January 2011—the first anniversary of the
Citizens United
decision—to join others from Free Speech for People, as well as Public Citizen, People for the American Way, Move to Amend, the Backbone Campaign, and many people from across the country. We went to the Capitol to meet with staff of several senators and representatives, including Max Baucus, John Kerry, and Donna Edwards, about the People’s Rights Amendment. We presented more than 750,000 signatures on petitions calling for the constitutional amendment to reverse
Citizens United
and corporate rights.
It was another cold January day, as it had been the year before when the Supreme Court announced the
Citizens United
decision. This time, though, the grass between the Capitol Building and the Supreme Court was filled with people of all ages, races, occupations, and political viewpoints, people who had come from all over the country to stand to object to
Citizens United
and to demand a constitutional amendment to reverse it. Similar meetings have taken place in state capitals, town meetings, law schools, colleges, religious institutions, and every sort of assembly.
Scores of leading law professors and lawyers have joined the call for Congress to consider a constitutional amendment to reverse
Citizens United.
Increasing numbers of American businesses are supporting the amendment campaign. Free Speech for People has partnered with the American Sustainable Business Council, representing more than seventy thousand businesses that stand as “Business for Democracy” to oppose corporate rights. Free Speech for People is also working with the American Independent Business Alliance and other business groups to organize
the majority of American businesses that want nothing to do with crony capitalism and corporate rights.
As in Theodore Roosevelt’s day, this cause is not partisan. Libertarians and tea party activists, conceding nothing of their concern about big government, are joining the battle to keep America free of dominating global corporate power. The Transpartisan Alliance, headed by the libertarian Michael Ostrolenk, is organizing conservatives who recognize the need to contain the government-created and -subsidized transnational corporations that wield such power over American lives and communities. Chuck Baldwin, the 2004 nominee of the conservative Constitution Party for the office of vice president, calls corporate America the greatest threat to freedom. “I will be even so bold as to say,” said Baldwin in 2007, “that America has much more to fear from today’s Chamber of Commerce than it does from al Qaida.”
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Clearly, there is no reason to stay on the sidelines, but how do we win? Article V of the Constitution provides at least two approaches to amending the Constitution. Congress may pass a resolution with a two-thirds vote, and the resolution is then ratified by three-quarters of the states. Alternatively, amendments can be passed in a constitutional convention called by the states and then ratified by three-quarters of the states. The convention route has not been taken since the initial Philadelphia Convention of 1787. All twenty-seven amendments to date have been passed by a two-thirds vote of Congress and ratified by three-quarters of the states.
Achieving a vote of two-thirds of Congress and three out of four states sure sounds challenging, and it is. But don’t buy the discouraged or cynical claims of those who say that the Twenty-Eighth Amendment will never happen or those who think that Americans cannot achieve dramatic constitutional reform anymore. That admission of weakness, masquerading as sophisticated political
analysis, has never worked when Americans faced a fundamental challenge to the vision of liberty and equality that is our birthright.
It would be one thing if the constitutional amendment proposal were a novel or untested path, but it is not. We have amended the Constitution twenty-seven times, seventeen times since adopting the Bill of Rights. We have done this repeatedly, and not only back in the distant days of history. The Twenty-Seventh Amendment (requiring an intervening election before any congressional pay hike takes effect) became part of the Constitution only in 1992. Before that, the voting age amendment came in 1971. Indeed, going back to the Seventeenth Amendment in 1913, almost every subsequent decade in the twentieth century saw a new amendment become part of the Constitution. The only exceptions were the wartime 1940s and the 1980s. We’re overdue.
We frequently hear of the emphasis in constitutional interpretation on the intent of the framers of the Constitution. That is certainly one important aspect of constitutional interpretation. We ought not to forget, however, how often and how actively Americans have updated the Constitution by using the amendment process as a basic tool of democracy. In the end, it is the American people who are the ultimate interpreters of our Constitution, and it is we who decide how to fulfill the framers’ vision of equality, freedom, and justice for all.
If original intent is the guidepost, we can take comfort in two key facts. The framers intended the Bill of Rights to protect the liberties of human beings, not corporations. And the framers intended that Americans take responsibility for amending the Constitution when necessary to strengthen self-government and protect our liberties. Indeed, the Constitution itself might never have made it out of the Philadelphia Convention in 1787 and on to ratification by the people and states had Article V’s procedure for amendment not been included.
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The road to the People’s Rights Amendment goes through our communities and the states. In the end, Congress will need to vote out the People’s Rights Amendment bill, and it is true that leaders in Congress have already introduced amendment bills that would overturn
Citizens United.
But if we stand back and wait for Congress to do the job, we will fail. Congress won’t do it, not without a national movement.
This movement is growing. It is focused and increasingly organized by passage of amendment resolutions wherever Americans or our elected representatives assemble: state legislatures, town meetings, county and city councils, houses of worship, business associations and trade groups, advocacy and charitable organizations, and anywhere else people assemble. People who support the constitutional amendment campaign have lots of different views on other issues, ranging from limited government, balanced budgets, and local control to environmental protection, climate change, and open space; from labor unions to free marketers; from health care to healthy food; from bar associations to barkeepers. Passage of a critical mass of People’s Rights Amendment resolutions throughout the country will bring decisive pressure on Congress to finish the job. Wherever you engage with other people, talk to your colleagues, pass a resolution, and ask your elected representatives to do the same. Resolutions are available in the Resources section of this book.
Help others who want to strengthen our country with the People’s Rights Amendment connect to one another and bring in new people to join the effort. Sign up at Free Speech for People, and join the many other national, state, and local groups working together to move this forward. If you cannot find a group in your area, start one. Organize people, have a house party, form
committees of e-correspondents, and do all of the varieties of old-fashioned and new-fashioned hard work of self-government and citizenship. Resources for doing this can be found in the Resources section. Help yourself to whatever you find useful.
The Resources section contains the People’s Rights Amendment, a sample amendment resolution, sample petitions, frequently asked questions, talking points, and a long list of additional resources and connections to people and organizations that are already working to make this new American Revolution a reality. You can sign on to the amendment resolution, stay up to date, and download these and more tools at Free Speech for People.
Who says corporations are accountable only to shareholders? Why should we not expect that those who accept the government-created privilege of incorporation balance that privilege with good standards for the livelihood of employees, our economy, and the health of the environment and of the communities in which they do business? And why should we allow multibillion-dollar global corporations to take shelter in the corporate law of Delaware? Should not the size and complexity of a corporation at some point warrant a federal charter rather than a state charter from the most corporate-friendly state that transnationals can find (or can pressure)? Why shouldn’t all Americans decide what standards we expect from global corporations that choose to do business here? Why should the corporate status be perpetual, without some ability of the people to evaluate whether the corporation has complied with the law and served the public interest as intended?
In America, we are free, or should be, to answer these questions in the democratic way: we can debate and then vote to make whatever answers best serve the country. The rules of corporations come from us (see
Chapter Three
).
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If we do not like how the corporate
rules are working out, we need to change them. We need to dust off and use some of the rules that already exist, such as revocation of corporate status when corporations repeatedly violate the law.
At least two principles should guide corporate law reform to restore balance between large corporations and human beings and our government. First, incorporation is a privilege. Second, transnational corporations such as BP should not be able to use the corporate law of a single state, such as Delaware, without proper
national
corporate standards and safeguards.
The corporate charter is a privilege from the public; we should expect public accountability and benefit.
Corporate law is a public matter, not a private one. Corporate law defines parameters of corporate conduct and shapes our world, our families, and our communities in profound ways. We cannot afford to leave it to corporate lawyers to decide what they think corporate duties and responsibilities should be. Corporate law may seem boring at first, but we need to care about corporate law as much as we care about any other law or issue, from the environment to the economy, from healthy communities to strong families, from energy to foreign policy and war. The consequences of corporate law, for better or worse, have as big an impact on those issues and others than any other law, and perhaps more.
Professor Kent Greenfield at Boston College Law School has laid out the kind of clear standard that we should expect our public incorporation laws to have at their core:
No corporation, even one making money for its core constituents, should be allowed to continue unchallenged and unchanged if its operation harms society…. The corporation is an instrument whose purpose is to serve the collective good, broadly defined, and if it ceases to serve the collective good, it
should not be allowed to continue its operation, at least not in the same way. If we all knew that all corporations, or corporations of a certain type, or even an individual corporation created more social harm than good, no society in its right mind would grant incorporation to those firms
.
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