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Should We Amend the Constitution?

by: Teddy Goodson

Sat Jan 30, 2010 at 14:34:00 PM EST

Stop the presses! The Supreme Court of the United States, in an invigorating exercise of judicial activism and scientific legerdemain, has given Money a Voice. Money can now talk, even as you and I, thanks to the 21 January 2010 split decision in Citizens United v Federal Election Commission. The decision has been annointed with Republican approval as reinforcing the  sacred constitutional First Amendment right of free speech. It has also been attacked by Democrats and progressives as giving mega-corporations freedom to use their enormous wealth to pay for advocacy political ads and otherwise employ their resources to influence elections and national policy, thus undermining the democratic proces. Labor unions acquired the same freedom to spend money, but since their money is a hill of beans compared to the Himalayas of moola in corporate coffers, there is no comparison.

Some people are so discombobulated by this decision (including President Obama himself, who mentioned it in his State of the Union address) that various fixes have been proposed in Congress, and a group called is now circulating a petition to amend the Constitution to affirm that "money is not speech," and that, therefore, the First Amendment does not apply to anyone or anything but real human beings. How often it happens that, when someone is dissatisfied with a present legal situation or process, up pops an effort to amend the Constitution, on the theory, I suppose, that will really make it all better, as we all know the Constitution is iron-clad, words of perfection from the all-knowing Founding Fathers. Is this a good idea in this case?

Teddy Goodson :: Should We Amend the Constitution?
The SCOTUS decision is utterly outrageous, I agree, but: Be careful what you wish for. I am not sure amending the Constitution to say money is not speech, for example, is either the best way to go, nor the best way to solve the problem, and it can produce some unintended (bad) consequences..... I want to think this thing through a little more, as the devil is in the details, and in exactly how any amendment is written.

Amending the Constitution is a long, involved process described in Article V of the Constitution, requiring super majorities all the way to approval:

"The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof...."

Once amending the Constitution is in the works, there could be other, less benign amendments thrown into the mix.  If we end up with a Convention, plenty of other amendments could be on the floor, as well, and who knows what might happen. Even if this amendment is the only one, is there anyone who believes, given our present political situation, such an amendment would obtain the necessary super majorities?

My concerns with this particular decision by the SCOTUS include such things as:

1) The basic problem is the so-called personhood of corporations, period. This pernicious (and fairly recent historically) concept can be modified by legislative action, inasmuch as the government itself is the source of the very existence of corporations, having established the concept by legislation. It was judicial overreach in a sidebar comment by a Justice of the Supreme Court which added the fiction of legal personhood. Partial solution: The benefits of the fiction of legal personhood can be more strictly defined legislatively so as to limit corporation's encroaching on the rights of actual human persons (and thus obliterate one evil result of the SCOTUS decision), ending any pretensions to First Amendment rights of free political speech---- puffery in advertising is a separate matter, always allowed

2) Corporations, unlike carbon-based life, are immortal... where is the personhood in that? This gives them enormous staying power in any struggle with puny human persons---- not a level playing field, right?

3)  That money really does talk has always been obvious; the SCOTUS decision makes it absolutely imperative that we establish public financing of elections and campaigns, and strictly limit the number and size of advocacy ads on mass media; it would also help to shorten the campaign period, which has kept growing until the re-election campaign begins the day following the election on the first campaign. There is no way to control vicious gossip and lies, especially on the Internet or talk radio, and I am not sure we should even try on the theory that controlling the consumption of liquor did not work with Prohibition nor the abuse of hard drugs with the War on Drugs, so it is better to spend the effort on educating the public with investigative reporting exposing who is doing what---- a bit of Sunshine can clear up infections. (If Location, location, location is the most important thing in real estate, then I sometimes think Education, education, education applies to politics and government)

4) Far too many mega-corporations which are supposedly American, are no longer, they are controlled by foreigners and often by foreign governments directly or through sovereign wealth funds. The SCOTUS decision enables such foreign interests to spend their huge resources to influence American policy, even to buy politicians---- what Greg Palast refers to as real, true MANCHURIAN CANDIDATES. My memory is hazy on the facts, but as I recall the medieval Venetian Republic had a system of elections which included such things as anonymous accusations against a public figure (someone would stuff gossipy messages  about a scandal in the mouth of one of the Lions of St. Mark, so there would then be a celebrity furor, just the way we do, thus assasinating the character of otherwise prominent citizens in an early version of Swift Boating), and foreign individuals or powers poured money into bribing Venetian leaders. The leaders, despite Venice's canny traders and merchants, were profligate spenders. The Republic eventually became  so corrupt it died. Hmmm.

We absolutely must tackle the inevitable globalization of the American political process---- I have, by the way, pointed out in various blog articles, the coming change to what I call CORPORATE FEUDALISM, and the unfortunate fact that global mega-corporations cannot be successfully regulated or controlled by geographically-limited nation states. Such nation states are already becoming mere functionaries and toadies of the mega-corporations, as we ourselves have seen with Bush's prescription drug "benefit," Obama's aborted health care reform, Big Bank bailouts, and countless banana republic coup d'etats.

We do need to rein in the global elite's arrogance and corporate political meddling and greed, but going the route of a Constitutional Amendment is probably not the best way. We need to do it quickly, as the power of the mega-corporations grows day by day.

By the way: If God intended us to have corporations, would He not have put them into the Bible? Then too, would not the Founding Fathers have included political parties and corporations in the Constitution?    

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I Wish It Could Succeed
I wish that a constitutional amendment would work, but the process is very difficult and time-consuming. Plus, I do not see such an amendment getting through Congress, much less being approved by the requisite number of states.

I agree that we need a constitutional remedy to declare that corporations, while they may have certain rights in the commercial world that historically were reserved for persons, are not persons. We also need a constitutional remedy that limits the role of money in federal elections.

Unfortunately, my cynicism says neither will happen.

Eat the elephant a bite at a time
This is the tactic that the so-called pro-lifers have followed: restrict access to abortion, deny this procedure or that, require parental notification, and so on, nibbling away at the fringes until the right of a woman to control her own body totally collapses.

So, we can employ similar tactics on this problem, until we can get a Supreme Court that has a complete set of modern brains among them, and is not in thrall to corporations. We can also get constitutional scholars and historians to pound away at constitutional law and theory in articles and speeches, thereby changing the intellectual climate so that corporations are no longer a substitute for God.

It would also help if we could get economists to demonstrate the failures of free market theory and the unacceptable risks of modern corporate capitalism, so that it becomes intellectually easier to regulate these beasts.

[ Parent ]
so you understand what the majority in SCOTUS is doing
I strongly suggest you read this op ed by Linda Greenshouse who was a Pulitzer Prize winner for her coverage of SCOTUS.

This is my world and welcome to it

[ Parent ]
Fascinating analysis,
even more remarkable for both its clarity and its brevity! So the over-reach is, psychologically speaking, making up for the Chief Justice's earlier "failure of nerve," and simultaneously helping him to steel those nerves for a greater over-reach on Civil Rights or perhaps even Roe v Wade? Makes a nice parfait when mixed with Justice Alito's arrogant smarta*s sneer during SOTU.  

[ Parent ]
She rocks, doesn't she?
I "discovered" her some 3-4 month ago and became a rabid fan, instantly :)

Her yesterday's contribution -- on Alito's facial contortions which, "allegedly", spelt "not true" (Supreme version of the hoi-polloi "you lie!") --is pretty good, too. Even though I don't agree with her conclusion :)

[ Parent ]
The more I read
about amendments to the Constitution, the more grateful I am that they're so difficult (two thirds of both houses of Congress) to get started. Yes, depriving corporations of their "personhood" is appealing... But, by the same token, how appealing is a Constitutional amendment which makes the "one man one woman" marriage an iron-clad rule?

I'd much rather see such issues resolved on the Congressional (let's have a new law) level first, even if that's less durable/more prone to change. Constitutional amendments, to me, are like abortion -- the very "last resort" option, not the "first choice" tweak.

Regarding Teddy's advice of slaying the elephant one rump steak at a time (and repelling the latest SCOTUS ruling by trimming its fringes)... A lot of attention hes been paid to the possibility of foreign influence on our electoral system. While I agree that that's what comes to mind first and while I, personally, am amused by the idea of an Inhofe or a Kyl proposing in our Congress that every female over 9yrs old ought to wear a burka and, possibly, a full veil as well... I think the possible import of the domestic corporate influence over the judicial elections might, perhaps, be a better position for that first shot across the SCOTUS' bows:

The election of judges
was, as I understand it, originally a sought-after progressive ideal: it prevented anti-commoner elitist judges of the old school Establishment from being appointed---- it was almost a class warfare thing. It has taken a few generations for the (new) elite to understand how to de-fang such a method of judicial selection, and put the elite back in charge like always.

The "solution," as is often the case, is simply to apply lots of money and buy yourself a judge. To be sure, the "solution" is all dressed up in an attractive philosophical suit---- the familiar suit of free market capitalism, the sanctity of corporate greed and the profit motive, and a patriarchal world view so beloved by macho A-type entrepreneurs

And so we have judicial decisions based on hardline authoritarian conservatism ("father knows best,") and market capitalism across the board, even when an outside observer might find no connection between a case at hand and these philosophies.

[ Parent ]
let me comment on election of judges
which is the pattern in many states.  The Supreme Court has just ruled in a case that a justice in the WV Supreme Court who was actively supported by Don Blankenship of Massey Coal should have recused himself in the rehearing of a case involving Massey.  That precedent might serve to chill corporations actively supporting candidates for elected judicial positions -   it would seem than any judge supported by a corporation (or by logical extension, opposed by a corporation) would have to recuse themselves from a case involving that corporation or substantially affecting its interests.  While there might therefore be some gain in actively opposing some judges to disqaulify them from sitting, that might not hold up, but actively supporting clearly would serve as graounds requiring a judge to recuse self from such cases.

This is my world and welcome to it

[ Parent ]
What about when
a case involving an industry or a sector comes up when a judge was supported by a company engaged in that industry or sector, but that company may not "officially" be involved in that case? And, now that the Chamber of Commerce sees fit to involve itself intimately in elections, what about when a case comes up involving any C of C member? What about support by the NRA, and cases involving weapons and Second Amendment rights (however broadly construed)? Focus on Family support of judges involved in cases involving abortion? Often there is a direct connection here, too. Imagine this: Judge after judge recuses him/herself and we end up with no one clean enough to judge?....?

[ Parent ]
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