We the People Eugene (WtPE) is no longer an affiliate of Move To Amend. We believe that both organizations seek the same general outcome:
- That everyone should have equal access to the debate over how we govern ourselves, regardless of wealth
- That corporations should have less control over society’s decisions, and society should have more control over corporate decisions
WtPE concluded long ago that MTA’s proposed constitutional amendment would not bring about that outcome, and now MTA has made it clear there is not room in their organization for dissenting viewpoints.
MTA’s amendment proposes three things:
1. Corporations have no rights, and are subject to regulation
2. Governments should regulate campaign finance so that “no person gains, as a result of their money, substantially more access or ability to influence” elections
3. Election money should not be “speech under the first amendment.”
Both #2 and #3 relate to “money is not speech” as it is commonly understood, and MTA appears to link them.
Below is a brief overview of our thoughts on each of these amendment issues, as well as another issue (#4).
1. “Corporations are not people” – This is a non-issue, corporate personhood constitutional doctrine has been dead for most of a century. This has sometimes been phrased as “corporations have no rights”. OK – but what about the rights of the shareholders? MTA has never been clear about the rights of shareholders in a corporation, or members of other sorts of organizations.
Does MTA seek an amendment allowing the government to seize the assets of a corporation? Or would the rights of shareholders or members prevent that? If the first then the amendment would be dangerously broad; if the second, then it would be hollow, as almost any protection granted a corporation could justified as protecting the shareholders or members. What is needed is establishment of a middle ground. But MTA’s proposal gives no hint of a middle ground.
2. A “level playing field” – On this issue we think MTA language is stronger, and has been greatly improved from what was introduced as H.J.Res. 29 by Pocan & Nolan in 2013. MTA seems to have recognized the importance of a political equality rationale for campaign finance regulation. But regulating just money in elections, rather than money used for political purposes more broadly, allows big money to remain in control of our government.
3. Election money should not be “speech under the first amendment” – This is too vague. MTA claims to be overturning the Supreme Court decision Buckley v. Valeo, but nowhere in that decision does the court claim money is speech, so what would MTA’s language actually do? The court’s decision does point out that limiting money can have the outcome of limiting speech; does MTA’s amendment seek to deny that obvious truth? Does MTA believe election spending should have no constitutional protection whatsoever? Do they seek to give the government the power to, for example, limit the spending of money by the Green Party under the guise of restraining environmental terrorism? What are they trying to accomplish by this clause that is not accomplished with clause #2?
4. Most of the amendment does not actually have any effect by itself, but merely allows governments to act. Section #2, relating to political equality, does describe an obligation of government, but if Congress were to fail to act the clause could not be judicially enforced.
A brief history of the WtPE/MTA relationship
WtPE joined with MTA in 2011, after we hosted a workshop with David Cobb. MTA had not yet proposed amendment language, but had stated problems which an amendment should address and gave principles on which amendment language should be built. We heartily agreed with their analysis as stated, and we still do. Later, WtPE hosted the only two statewide gatherings of Oregon MTA affiliates.
Eventually MTA proposed amendment language, which was later was introduced by Nolan and Pocan in February of 2013. By the time MTA first proposed language, we had given considerable thought to the subject, and we recognized several of the problems we discuss on this page. We brought up our concerns with several people in MTA national, and it seemed that they might think about our concerns and give a response. There was never been a response addressing our concerns and trying to explain why we are mistaken.
After Nolan & Pocan introduced the MTA amendment, we noticed that the language MTA was promoting on their website was different than what was introduced by Nolan/Pocan. MTA’s language was much better, and it directly addressed one of our big concerns. We did not know if the change was made in response to our concerns. Although we had hoped for a serious discussion with MTA about our concerns, the fact that a change was made that directly addressed an issue we had was very encouraging.
When MTA groups in Oregon decided, at the second statewide gathering in Eugene, to move forward with an initiative petition for a ballot measure that could be used as an educational and movement building tool, we were very interested. We worked hard to make our concerns known to other MTA groups, who for the most part did not want to hear them. The final prospective petition language did include a concession to our viewpoint, and though far from what we would have wanted, was something we could support. Of course the Oregon Secretary of State ruled against allowing it to move to circulation.
We still thought there might be some openness in MTA national for dealing with language concerns, since they had improved their initial language in a direction for which we had advocated. But at this point, what we would call further improvements are not being considered.
Below is a more detailed discussion of each of the points four points of our concern related to amendment language.
We will begin with a concern that is a combination of #1 and #3 above. WtPE feels that it is important to protect the people’s right to assemble to express common political views. Expressing such common political views is in fact the raison d’être of both WtPE and MTA. This is clearly protected by the first amendment, and is clearly a right of individuals. But if the individuals form an organization that is recognized as an artificial legal entity, how would courts interpret MTA’s language regarding allowable regulations on artificial entities?
Suppose a state passed a law saying that no organization may spend money to campaign for a candidate espousing views that interfere with our free market system. MTA’s language states that election spending is not to be protected, so it seems the court could not overturn such a law on free speech grounds. It might be argued that other groups are allowed to spend on the candidate of their choice, so equal protection could overturn the law. But MTA language is very clear that equal protection applies only to individuals.
Does the election spending language in MTA’s amendment include spending on ballot measure elections? Would an initiative petition process be considered part of an election? In Oregon, to be able to circulate a petition for a measure that has any legal chance of appearing on the ballot, a committee must register with the Secretary of State, becoming an artificial legal entity. For the 2016 ballot, more than 90% of the committees have said they may pay circulators. If spending on elections by artificial entities has no protection at all, can approval for circulation be openly determined by the content of the petition?
WtPE feels that it is important to protect the people’s right to assemble to express common political views, and to be able to spend money to do so, subject only to political equality (see discussion related to #2 below) and corruption limitations, and certainly not subject to content limitations or other nefarious ideas governments might have.
1. “Corporations are not people”. Surely corporations have no inherent rights, as people do. Governments should have control over their own creations, and be able to appropriately regulate corporations and other artificial entities created by law. But shareholders are individuals with rights, and their assets in a corporation need protection from arbitrary government action. Would the language in MTA’s proposal allow government to arbitrarily search corporate property, or to arbitrarily seize and hold that property? Not if the court understood that the rights of the shareholders extended to their shared assets in the corporation. But how is that so different from the corporation having 4th amendment rights?
What if the corporation were a non-profit working for social justice, say working towards policing that did not regularly shoot unarmed black men. Should the local government be able to search the non-profit’s office and seize records/computers that allow it to function? If not, how is that not treating the corporation as if it had 4th amendment rights? If the court appropriately protected the non-profit’s records by claiming it was protecting the rights of the individuals within the organization, what other rights could the organization exercise on behalf of its members? Shouldn’t an amendment give the court clear guidance? If not, we would be leaving the details to the court, which would get us to where we are now.
Consider Move to Amend’s article discussing the NAACP v. Alabama Supreme Court decision (1958). Alabama sought to prevent the NAACP from conducting business in the state, and the state demanded records, including membership lists, which the NAACP refused to divulge (see http://en.wikipedia.org/wiki/NAACP_v._Alabama). The court ruled in favor of the NAACP:
“We hold that the immunity from state scrutiny of petitioner’s membership lists is here so related to the right of petitioner’s members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment.”
MTA correctly states “In other words, the organization was properly asserting the constitutional rights of its individual members.” But couldn’t any of the cases MTA claims are giving rights to corporations be construed simply as allowing the corporation to protect the rights of its members?
The crucial question is when should a corporation be able to assert the rights of members/shareholders/donors/etc, and neither MTA’s amendment proposal nor its NAACP article shed light on this question. The Supreme Court’s errors regarding corporate immunities seem more a result of bias than doctrine, so a single constitutional amendment is unlikely to effectively mend these multiple and disparate errors.
Instead of attempting to fix all these flaws, WtPE has chosen to focus on mending the court’s errors regarding corporate involvement in politics. Within that narrower scope we can articulate principles clearly enough to bind a corporate-friendly Supreme Court. And fixing these errors is a step toward electing legislatures that will appoint judges less biased in favor of entrenched economic power.
2. “A level playing field”. Too often, the 1976 Buckley v. Valeo decision is summarized as “money is speech.” In our view, the court correctly understood that “virtually every means of communicating ideas in today’s mass society requires the expenditure of money.” The problem with the Buckley decision is that the court unequivocally rejected the promotion of equality of political influence as a basis for limiting such spending. That is what needs to be corrected.
MTA’s newer language, put on their website shortly after Nolan and Pocan introduced MTA’s older version in Congress in 2013, seems to recognize the importance of the political equality rationale, or of a “level playing field.” The change from what Udall introduced in 2011 to 2013 also indicates recognition of this by Senator Udall and his cosponsors.
A major problem remains with both the Udall and Nolan language on this issue. The problem with excessive money in politics is not related just to elections. Regulations to level the playing field are important for all resources used to influence government or political decisions.
Regulating only election spending just won’t work. Those wealthy interests that now bankroll election ads would simply begin funding ads that attack a candidate but don’t explicitly advise people to vote for or against anyone.
Elections are important primarily because they affect government actions. We care that elections are bought primarily because political influence is being bought. So the primary reason to advocate for a level playing field in elections is to a establish a level playing field for political influence. There are many ways that wealth influences government other than election spending –
- The American Legislative Exchange Council writes many bills passed by state legislatures.
- More is spent on lobbying Congress than is spent on electing them.
- Advertisements tell us what to believe about fracking, public health care, and environmental regulations.
- Phony research pretends that climate change is a hoax.
Move To Amend has pointed out that it would be a gigantic waste to go through all the effort to amend the Constitution if the amendment isn’t sufficient to fix the problem. They’re right.
3. “Money is not speech”. Of course money isn’t speech. But it does not automatically follow that money spent on speech can be regulated. For example, regardless of what you believe about abortion, it would be silly to assert that a woman has a right to an abortion but not a right to pay a doctor to perform one. It is likewise silly to assert that the right to speak does not imply a right to rent a hall in which to speak, or to print fliers publicizing an upcoming speech. (Even television ads are speech, though typically not very good speech.)
When MTA proposes that “The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment” MTA is either proposing that such money will have no protections against government regulation, or they’re not proposing anything at all. Much like the “corporations have no rights” language, this language gives no hint of middle ground, but middle ground is exactly what needs to be established.
The First Amendment is not absolute. There are a number of cases where the Supreme Court has allowed limitations on speech, when the government has a good enough reason. The court’s error was declaring that equalizing citizen influence over government is not a good enough reason. The proper middle ground is to allow limits on spending money for the purpose of leveling the playing field, while otherwise leaving intact existing First Amendment protections.
Such middle ground has been recognized by several of those proposing amendments. For example, Senator Udall proposed an amendment in 2011 that begins “Congress shall have power to regulate the raising and spending of money and in kind equivalents with respect to Federal elections, including through setting limits on …” In 2013, he introduced essentially the same amendment, but added the beginning phrase “To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, …”. Udall’s proposed amendment had a hearing in 2014, and got modified, but the modification retained this important phrase. In our view, the improvement is still not clear enough that the only new reason for campaign finance regulation is what is stated in this phrase, but it certainly indicates that some in Congress recognize the danger.
Other proposals protect against giving government too much power to regulate in different ways. For example, Senator Sanders’ proposal in 2015 (and 2013) the words “content neutral” as a limitation on government power – “… the imposition of content neutral limitations on all such contributions and expenditures.”
4. Other issues. Many of the proposed amendments, including MTA’s, do not actually change anything directly, they instead obligate (in the MTA amendment) or merely allow government to pass laws to change things. The obligation to regulate campaign finance that has appeared in the latest MTA amendment proposal is a big step forward, but we feel that it could be stronger. This drawback is certainly not sufficient reason to oppose an amendment, since anything that moves the cause forward without causing harm is worthwhile. This point is another on which we disagree with MTA.
We think an amendment should include a prohibition on election or ballot measure spending by for-profit corporations – in fact by any entity that is not expressly formed for political purposes. Some organizations have a political purpose – political parties, PAC’s, petition committees, etc. These sorts of organizations should be protected in their political spending, subject only to limitations narrowly tailored to promote equality of political influence and to prevent corruption or the appearance of corruption. But there is no excuse for allowing organizations such as for-profit corporations to spend money on elections, including elections relating to ballot measures. A strong amendment would say this. Sanders has proposed an amendment that tries to do this.
To address disparities of political influence caused by wealth or income inequality, an amendment could specify aggregate limits on an individual’s political spending. Recognizing that retired or unemployed people could volunteer their time for a political cause, the aggregate limits should be in the neighborhood of the wage of a full time minimum wage worker. Anything in an amendment should be self-adjusting to inflation, so one possibility is the per capita gross national product. Whether it is half of this or twice this, or something else of roughly that amount, is not too important in our view. But 20,000 times this, which is about what the Koch brothers have pledged to spend in 2016, is excessive.
In general, organizations that are not formed for political purposes should not be able to use their resources for political purposes. But we recognize that a corporation that is trying to get a government contract could be considered to be pursuing a political purposed, and industry that is being regulated has an appropriate interest in letting government know the effect of that regulation. The default position should be that organizations not formed for a political purpose cannot use resources for politics, but that governments may allow them to do so. Most of the proposed amendments, including MTA’s, approach this the other way. Artificial entities can use resources for political purposes unless governments prohibit it – this is a much weaker stance.
In summary, while not addressing these issues makes an amendment weaker, these failings are not enough to oppose an amendment. But an amendment that does address one or more of these issues, such as what Sanders has proposed, makes it that much more worthwhile.