January 19, 2012

No Anti-Corporate Amendment to the Constitution

In Vermont we are watching an effort led by various liberal/socialist elements to amend the Constitution in the wake of the Supreme Court's decision in the Citizens United case. We have slogans such as "Money is not speech," "a corporation is not a person" and others to gin up the emotions of their followers. We see State Senators (Lyons & Campbell) leading rallies calling for a resolution supporting an Amendment to restrict free speech. [There are several versions floating around. The former link is just one.] And the usual activists, including Ben And Jerry's founder Jerry Greenfield, are beating the drum against political free speech by corporations.

I'm not an attorney, but in reading portions of the Citizen's United decision which has raised the hackles of these people who would amend the Constitution, I find this comment by Justice Scalia writing in response to Justice Stevens' dissent most relevant:

"But to return to, and summarize, my principal point, which is the conformity of today’s opinion with the original meaning of the First Amendment. The Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals—and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is “speech” covered by the First Amendment. No one says  otherwise. A documentary film critical of a potential Presidential candidate is core political speech, and its nature as such does not change simply because it was funded by a corporation. Nor does the character of that funding produce any reduction whatever in the “inherent worth of the speech” and “its capacity for informing the public,” First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 777 (1978).
Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate."

Scalia has it right. To the detriment of our public discourse, the 'class warfare' element of today's deeply partisan politics paints large, for-profit corporations as society's 'enemy.' Operating on that belief, some reject capitalism as the basis of our free society and would restrict free speech by restraining corporations from exercising that right.

Americans should reject that belief and premise if they support the Constitution. We should allow and encourage political speech of all kinds, but demand transparency in who pays for it.

No Constitutional amendment is necessary or desirable to constrain free speech in nothing more than a blatant attempt to muzzle certain speakers.

Some argue that the Constitution already provides Congress a remedy for constrain the Judiciary. Whether Congress would act under Article III, Section 2
to restrict the Judiciary

[ this part of Section 2: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."] [emphasis added]

in the domain of political speech/spending is doubtful. After all, they are politicians who are financed by all sorts of 'special interests.'
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