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Proposition 59, the Citizens United initiative, gets it wrong on corporate civil rights

Larry Rosenthal, adjunct professor, public policy | October 27, 2016

Over-simplification is one of the hallmark symptoms of our beleaguered Election 2016. A campaign by over-simplifiers, seemingly marketed only to distracted, easily manipulated voters.

But don’t pretend that any single candidate or party holds a monopoly on over-simplification. California’s Proposition 59 (2016) shows that progressives aren’t immune to the condition.

An entirely nonbinding, advisory measure, Prop. 59 is one of those ballot initiatives that you can actually read and understand:

flag and moneyShall California’s elected officials use all of their constitutional authority, including, but not limited to, proposing and ratifying one or more amendments to the United States Constitution, to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310, and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that corporations should not have the same constitutional rights as human beings?

The devil’s in the details when it comes to that clumsy last part: “corporations should not have the same constitutional rights as human beings.” Prop. 59’s proponents have their hearts in the right place, but their poor draftsmanship makes this initiative a loser.

The Prop. 59 campaign’s premises are as simple as its message: Corporations have stolen our elections with money; let’s reclaim our politics.

The problem is, for so many in the anti-Citizens United movement, corporations are a generic. Whether you’re Bank of America, or a small regional bank, you’re a corporation and all corporations are bad. Whether you’re Archer Daniels Midland, or a small incorporated family farm, sorry, you’re a corporation and all corporations are bad.

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One question gets to the heart of Prop. 59’s defect:

Q: Should corporations have some of the same rights natural persons enjoy under the United States Constitution, or none at all?

Prop.59’s official answer:

“Dunno. Can we tell you later?”

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The sorry state of the text, again:

The voters are asked whether California’s elected officials shall make clear that “corporations should not have the same constitutional rights as human beings[.]”

A voter like me asks: “OK, but how should those sets of constitutional rights differ, exactly?”

Cue sound effect: <crickets>.

Another try at the reasonable voter’s query: “I mean, what specific rights enjoyed by individuals should corporations lack?”

Cue sound effect: <cavernous silence … a pin drops>.

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People in communities, doing business in corporate form, deserve their rights. And those rights, for the most part, have nothing whatsoever to do with the tussle over Citizens United. In fact, Prop. 59’s overly broad language on undoing corporate civil rights may mean that its proponents have ulterior motives. Problem is, a lot of important social action by community organizations is going to suffer the consequences if this poorly crafted reform program goes forward.

The issue strikes a nerve particularly for those of us serving on nonprofit boards of directors. The nonprofit corporation I’ve devoted the last ten years to serving – a homeless services agency incorporated by honorable people under a valid state corporations law – must continue to enjoy due process and other fundamental constitutional protections in doing its work.

You and I take such things for granted. But Prop.59 doesn’t. Consider:

  • If a homeless services agency gets sued, it’s entitled to the same constitutional protections all litigants have.
  • If the NAACP wishes to pass a corporate resolution supporting Black Lives Matter, it’s entitled to free speech rights.
  • If the land holdings of the Nature Conservancy are threatened with eminent domain, it’s entitled to its defenses and remedies under the Takings Clause.
  • If the Screen Actors Guild is compelled to name names in a government sting investigating ISIS sympathizers, that corporation is entitled to assert its constitutional freedoms of association and speech.
  • If moveon.org suffers an unfortunate visit from a government agency threatening to confiscate files and computers, the constitutional protection against warrantless searches and seizures must be in play.

These examples serve to demonstrate that most of the everyday rights we all enjoy, whether personally or through the work we do in corporate form, can and should remain intact. We should never sacrifice those rights in order to forge real campaign finance reform and overcome Citizens United.

That 2010 US Supreme Court decision does create serious problems for democracy, make no mistake. Once all manner of campaign spending is treated as fully protected speech, reform becomes far more difficult. But there are avenues. We can test how far the courts are willing to go when tolerating the corrupting influence of money. We can seek to guarantee the transparency we need to ensure such monetary speech is “heard” rather than hidden from us. And we can fight for full enforcement of the good state and federal election regulations we already have.

But we should not consider overhauling all the valid protections afforded people conducting business and social action in corporate form. It is unnecessary and beside the point. Prop.59, and numerous constitutional amendments proposed in the wake of Citizens United, simply go too far. Worse, valid concerns about campaign finance appear to have been co-opted by those whose real beef is with free market capitalism itself.

We all know what Citizens United was about. We all know which provision of the Constitution was most at stake when it comes to the court’s holding with respect to corporate constitutional rights. So why is Prop. 59 so puzzled about this? It knows it wishes to contrast personal and corporate rights. It just doesn’t know how.

If this fight against Citizens United is truly worth fighting — and on many of that movement’s core purposes we all agree, I’m sure — then it’s worth making the initiative’s intentions unmistakably clear to the voters, and to everyone else waiting to be “advised” upon its enactment. After all, confusion and indirection deliver precious little advice at all. On this score, I’m afraid, Prop. 59 collapses. The campaign means well, and it’s raising consciousness when it comes to the terrible problems we have rooting out the pernicious impacts of big money in our politics. But that doesn’t mean we should sacrifice all logic when we make law or pass advisory measures.

Comments to “Proposition 59, the Citizens United initiative, gets it wrong on corporate civil rights

  1. The argument here is baseless, as this is very similar to the bills that passed in both Montana and Colorado in 2012 and to the one that is also on the ballot in Washington this November along with California’s. All of us are pushing CONGRESS to DO IT’S JOB and fix the mistake that was created by a Supreme Court that has made several bad decisions that are deeply affecting our democracy. Congress should be the ones that put forth the language and correct bills that will fix this problem. It is their job to balance out the power, when the Supreme Court has taken a step to far.

    To get an Amendment we will need 2/3 of Congress to pass this law. Currently we don’t have 2/3 of the delegates from the state of California signing on to the two Amendments before Congress – the Democracy For All Amendment or the We The People Amendment. Now we are giving the Legislators who represent the people of California a concise and clear directive that we want them to do so.

    The problem of money in politics has gotten so bad that everyone sees that we have a problem, now let’s all push for Congress to DO IT’S JOB and fix this.

    (Editor’s note: Holly Mosher works with the Yes on 59 campaign)

    • Holly, I’m an admirer of your work. Your film Pay2Play is an impressive treatise on our democracy’s many vexing problems involving money and politics. It is a great watch, engaging and entertaining, and it moves these conversations forward constructively. So it is nice to hear from you, and I do appreciate your chiming in here.

      On the substance of your post, however, it’s important when one describes arguments as “baseless” to carefully address their key points. With respect, my blog post and your comment are kind of like ships in the night on that score.

      My points here: 1) Prop. 59 can’t make up its mind how we should limit corporate civil rights via constitutional amendment; and 2) in the process, the important work of nonprofit corporations and small businesses in California communities is imperiled. No one who reads your comment can learn what the Prop. 59 campaign actually thinks about these issues.

      “Congress must fix this” provides a nice rallying cry, sure. But it neglects to respond to the issues I’ve raised. Worse, it sets aside Prop. 59’s own purported logic: we the people of the State of California, through our representatives, have to act immediately to advise Congress how to proceed. “Just fix it” furnishes precious little meaningful advice.

      Measures in other states are only relevant to the extent they align with Prop. 59. You point to Montana and Colorado. Unlike Prop. 59, Montana’s 2012 initiative (I-166) called for eliminating all corporate civil rights. Where Prop. 59 would only muddy those waters, I-166 (later overturned) came right out and poisoned them. By contrast, Colorado’s Amendment 65 that same year was blessedly free of any overreaching provision on corporate rights like Montana’s. Given its murky language, Prop. 59 actually emulates neither state’s enactment on the questions I’m raising.

      And it’s telling that you reference both the “We The People” (S.6) and “Democracy For All” (H.J.Res.22) amendments now being considered in the 114th Congress. Like Montana’s and Colorado’s, these proposals differ vastly.

      Whereas “We The People” would eliminate all corporate civil rights under the US Constitution (“The rights protected by the Constitution of the United States are the rights of natural persons only”), “Democracy For All” more reasonably limits itself to allowing (not requiring) Congress and the states to draw appropriate distinctions under the Constitution in order to advance meaningful campaign finance reform.

      The point is made: whether we amend the Constitution to overcome Citizens United is one thing. How we do so is quite another. Californians should care.

      Rather than pretending these choices do not exist – as Prop. 59’s poorly drafted “make clear” clause essentially does – leaders such as yourself can build a broader coalition by addressing them head on.

      Are the corporate civil rights of nonprofit-sector organizations and small businesses under the US Constitution truly neither here nor there? It is time for the movement to take a stand on these questions instead of waffling.

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