Guest Editorial by Ernest A. Canning
On Wednesday, by a bi-partisan vote of 26-3, the Vermont state Senate passed a resolution "calling for an amendment to the [U.S.] Constitution that corporations are not people and money is not speech and can be regulated in political campaigns" according to advocacy group, Move to Amend.
A majority of Senate Republicans joined with all of the Democrats in voting to approve the measure. The three nay votes came from Republicans after similar resolutions were passed in March by 64 different communities in Vermont.
Move to Amend observed that the Green Mountain State's Senate resolution goes much further than similar resolutions passed in Hawaii and New Mexico, which sought only to overturn the infamous U.S. Supreme Court decision in Citizens United vs. Federal Election Commission [PDF]. (The CA State Assembly also passed a resolution last month to overturn Citizens United).
In 2010, President Barack Obama blasted Citizens United as "devastating to the public interest." During his 2010 State of the Union Address, the President said the Court's decision would "open the floodgates for special interests --- including foreign corporations --- to spend without limit in our elections."
However, the President has, as yet, not offered a rejoinder to the presumptive Republican nominee, Mitt "Gordon Gekko" Romney, by squarely stating that "corporations are not people!"
If the President followed Vermont's lead, would it portend to a Democratic landslide in November? Would the SCOTUS, faced with the prospect of a Constitutional Amendment that would put an end to corporate personhood altogether, feel pressured to either overrule or, at a minimum, curtail the reach of Citizens United?...
President Obama may be in a position to achieve the greatest Democratic landslide since President Lyndon Johnson defeated Sen. Barry Goldwater in 1964. That reality, should it occur, could come via the enormous blow back being seen from the GOP's "war on women" that has already produced polls showing the President leading presumptive Republican nominee Mitt Romney among women 54% - 42%. The GOP's virulent anti-immigrant rhetoric has also led to a commanding 54% to 38% Obama lead over Romney amongst Latinos as of January.
In light of the fact that, last month, 53% of likely U.S. voters supported an immediate and complete withdrawal from Afghanistan, as compared to only 31% who are opposed, the President could receive an enormous boost by ordering all troops to leave by October. In the event the SCOTUS should strike down the health care law, Obama could also boost his standing by way of a response to the SCOTUS decision in the form of a pledge to work towards a single-payer, Medicare-for-All system that was supported by 2/3 of Americans as of the end of 2009.
But the real prospect for a Democratic route may well lie in the fact that his presumptive Republican opponent is not merely aligned with Wall Street. Mitt Romney is Wall Street --- a candidate who was not only foolish enough to say "corporations are people, my friend," but one who amassed a fortune through Bain Capital LLC, a predatory, leveraged buyout firm.
As revealed by an October 9, 2011 Time Magazine poll 89% of Americans agree that Wall Street exerts too much influence on our political system and 79% believe the gap between rich and poor is too large. Other polls reveal that 83% of Americans oppose Citizens United.
In announcing his support for a Constitutional Amendment that would end corporate personhood, Obama certainly runs a risk for both himself and the Democrats running below him, for example, in congressional races. But it's a calculated risk, and one that would help to underscore the campaign of "Hope and Change" he originally ran so successfully on in 2008. Analysts have predicted that the President "will build a war chest of $1 billion" for the 2012 campaign. Support for a Constitutional Amendment that would end corporate personhood, would certainly lead to a loss in some measure of anticipated corporate revenue. But given the overwhelming number of citizens, on all sides of the aisle, clearly opposed to Citizen's United, and factoring in the ability of an incumbent to utilize the bully pulpit, any such cost in corporate contributions would likely be offset by a wave of popular support for the policy, both in donations and at the ballot box on Election Day.
The greater risk of such a full-throated endorsement by the President would likely be to Democrats running on the lower part of the ticket. Though they too would likely enjoy a similar increase in popular support by joining with the President --- and The People --- in an unambiguous endorsement for the end of the corporate personhood concept which has so grotesquely perverted both our electoral system and our entire system of governance.
Moreover, corporations themselves would risk a major backlash if they responded to such an announcement with a dramatic and transparent shift in candidate funding. Such a shift, if well publicized, could harm rather than help the Romney candidacy, and those running below him, by driving home the election as one which unambiguously matches Wall Street against the citizens of Main Street.
Pressuring SCOTUS on Citizens United
In response to the controversy that arose following the President’s remarks about the pending constitutional challenge to the Affordable Care Act, Attorney General Eric Holder was quoted as saying that the "courts have the final say."
But, in our system of government, the argument that the Supreme Court has "the last word" is not always accurate.
The 1896 Supreme Court's last word about "separate but equal" in Plessy v. Ferguson was superseded by the 1954 Supreme Court's last word in Brown v. Board of Education. More to the point, the 1857 Supreme Court's last word in Dred Scott vs. Sanford, finding that African-American slaves and their descendants could never be considered "citizens", was superseded by the 13th Amendment to the U.S. Constitution.
In our system of justice, it is the people, through their ability to amend the Constitution, who truly have the last word.
We are at a rather unique cross-roads. Less than three years after it decided Citizens United, the Supreme Court will have the opportunity to revisit its controversial ruling as a result of an appeal challenging the Montana Supreme Court's decision in Western Tradition Partnership, Inc. vs. Attorney General of Montana [PDF].
In that case, the Montana Supreme Court bucked the U.S. Supreme Court's Citizens United ruling, by upholding a century old state law that prevents direct contributions by corporations to candidates or political committees. The majority sought to distinguish Citizens United, arguing that matters unique to Montana rendered it inapplicable. Even though he dissented because he felt Citizens United was the controlling decision, Justice James C. Nelson leveled a blistering assault on the rationale employed by the U.S. Supreme Court decision and called the concept of corporate personhood "an affront to the inviolable dignity of our species."
The U.S. Supreme Court's decision to hear the Montana case was not made in a political vacuum. To the contrary, two Justices, Ruth Bader Ginsberg and Stephen Breyer, wrote when accepting the case, that it "will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates' allegiance, Citizens United should continue to hold sway."
Ginsberg and Breyer may not reflect the view of the majority. After all, both dissented in Citizens United. But that does not mean that the majority are immune from political reality.
Should the President join with the Vermont Senate in calling for a Constitutional Amendment that would not only reverse the holding in Citizens United but end corporate personhood, Justice Anthony Kennedy, the author of the Citizens United majority opinion might well be inclined to revisit his previous ruling as a means to avoid the permanent and complete reversal that would come with a Constitutional Amendment that would end the concept of corporate personhood.
With two of the five-member majority (Kennedy, age 75 & Antonin Scalia, age 76) running up against Father Time, surely both must recognize that, in the face of such overwhelming public opposition, the days of unlimited, secret Super Pac corporate campaign finances may be numbered. Even if they are not persuaded to overrule their prior decision, they could well decide to limit its scope as part of an effort to save it. They could, for example, agree that the circumstances in Montana are unique, so as to uphold that Court's decision. They could reverse Montana's outright ban on corporate contributions but uphold that state's disclosure requirements.
Either way, as in the case of the 2012 campaign, if the President and his fellow Democrats followed the lead of the bi-partisan Vermont Senate and openly supported the repeal of corporate personhood with a full-throated endorsement, it would likely have a positive impact on the legal as well as the political systems --- especially if it were accompanied by massive citizen pressure on multiple state legislatures to pass the same resolution.
Whether this President, who has all too often sided with corporate America, is able to rise to greatness and display the profile in courage necessary to adopt such a course, remains to be seen.
UPDATE 04/20/12: Yesterday, Vermont's House of Representatives "passed the measure by a 92-40 vote." According to the advocacy group, Move to Amend, "Vermont is now the first state to call for an amendment to abolish the doctrine known as 'Corporate Personhood' which gives corporations constitutional rights meant to protect people."
Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.