My topic today is Deepening Democracy.
You might expect that I will talk about how to get out the vote, how to get rid of the Electoral College, how we need to reinstate the Voting Rights Act of 1964 which the Supreme Court punched a big hole in recently. Or maybe about, here in Oregon especially, how to control the flow of unlimited money into the political process, specifically by supporting the legislative referral to the Nov 2020 ballot amending the OR constitution to allow limits on political campaign contributions in Oregon. We all need to support this referral in our communities.
But instead I want to talk about Citizen United, because Jan 21st is the 10 anniversary of that awful decision. It struck yet another blow against democracy by allowing even more special interest corporate money into the politics system, swamping the voices of ordinary people like you and I.
I want to talk about corporate personhood and the court system’s granting of human rights to corporations. Court-created corporate personhood has given the rights and privileges of human beings to corporations while removing them from the duties and obligation of being our servants.
Being quite distant from the London power center, the colonies evolved their own economies, industries and trading practices even as the King through the colonial governments attempted to maintain control. The English parliament introduced measures that protected trade by the crown corporations and impeded the independent commercial activities of the colonial merchants, including tax protections which subsidized the East India Trading Company by placing high tariffs on tea imports. That lead to the Boston tea party and the fight was on.
The American Revolution was a revolt against corporate rule as much as a revolt against the King or a revolt against taxation without representation. The 1776 Declaration of Independence freed the colonist not only from Britain but also from the tyranny of British corporations.
Corporations are not mentioned in the Constitution. The constitution’s writers knew that all corporations in America operated within state boundaries and they left the control of the corporations to the individual states.
Those state-chartered corporations had very specific responsibilities they had to fulfill. Failure to meet their obligations meant that a corporation could be dissolved; and if the corporation did harm, then the owners and shareholders could be held liable and penalized, sometimes with jail sentences, and sometimes monetarily for up to two or three times the amount of their investment. All that is so unlike corporations today with their limited liabilities, lack of restrictions and no punishment for doing harm to the general public (if you need an example, think of the too-big-to-fail banks and the Great Recession. Or the pharmaceutical industry and the opioid crisis).
However, during the nation’s first century, corporations learned how to remove themselves from supervision by the various states by forming trust companies and holding companies.
While the corporations were freeing themselves, there was another movement happening – a democracy movement by the people. While our national founding documents speak eloquently about the rights of man, the practice was quite different. For our founding fathers, We the People did not include most of the population. Those recognized as citizens, especially with the right to vote, were limited to rich white male property owners. Who was left out? Women, slaves, the original inhabitants, the indentured servants, laborers, and even those white men who did not own enough property. Citizenship was limited to about 5% of the population.
Our history can be seen as a process of including more and more people within the definition of We the People. American history is a series of heroic, sometimes violent, struggles to gain human rights for all humankind. We fought a civil war, waged labor struggles for the eight hour day and the right to freely associate in labor unions, engaged in struggles for voting rights for women and their right to control their own bodies, conducted struggles for full voting rights for African Americans, conducted grape and lettuce boycotts for farm worker rights. Those struggles continue today for immigrant rights, whether they are here legally or not, and for LGBTQ and sexual identity rights and women’s rights to, for instance, have an abortion .
While We the People were engaged in those struggles to include more and more people within the definition of We The People, the corporations went to the US court system to have their rights given to them. The first major giving of constitutional rights was the Santa Clara County v Southern Pacific Railroad decision in 1886. While the case itself dealt only with taxing fence posts, the court recorder wrote in the headnotes that corporations had 14th Amendment rights to due process and equal protection of the law. A careful reading of that decision finds no mention of this whatsoever. The court reporter just wrote this in the head notes and it became the standard summary of what the decision said and the bases for future decisions to this day.
The 14th Amendment itself was enacted following the Civil War to protect the newly freed slaves but corporate lawyers argued and the courts agreed that when the 14th Amendment talks about equal protection of the law and due process that the amendment’s authors meant not only people but also corporations.
So the 14th Amendment starts: “Section one. All persons born or naturalized in the United States...” How could it be more clear who or what is included in the intend of the 14th amendment? Clearly corporations were not included but the mistaken interpretation became the basis for future court decisions giving our human rights, our constitutional rights, to our artificial creations, the corporations.
Even while the courts gave constitutional rights to corporations, they ruled in favor of Separate but Equal for the human beings for whom the 14th Amendment had been written. Separate but Equal gave the former slaves Jim Crow instead of equality. And it wasn’t until 1954 with the Brown v Board of Education decision that this court-created doctrine was finally overturned.
Naturally, the corporations didn’t just stop with getting 14th Amendment rights. In following decisions, corporations have been given 1st amendment free speech rights, 4th amendment protection against search & seizure, 5th amendment due process rights, 5th amendment takings protection from regulatory law, 5th Amendment ban on double jeopardy, 6th amendment rights to jury trials in criminal cases, 7th amendment rights to a jury trial in a civil case, and with the Hobby Lobby decision, they can now claim a 1st amendment right to freedom of religion. And of course, the Citizens United decision declared that corporations could not be prevented from spending corporate funds on candidate elections (1st amendment free speech right)
I want to give just one example of how these court-created corporate personhood rights have been used to harm you. Let’s talk about a decision involving the Pennsylvania Coal Company. The courts with this decision gave corporations 5th amendment protections from takings. The Takings clause of the 5th amendment states: “nor shall private property be taken for public use without just compensation.” In this case (1922), the state of Pennsylvania had passed a law saying that it was illegal for the coal companies to dig under people’s houses to extract coal, thereby causing them to collapse. Entire towns had in fact been undermined by this coal extraction and sunk as a result. The Supreme Court overturned the law, saying that such laws took profit-making opportunities away from the private corporations and therefore were unconstitutional takings. This decision has been the basis for a host of rulings opposing environmental laws ever since.
I hope that my comments have provided some background for Move to Amend’s proposed US constitutional amendment declaring not just that money is not speech and, therefore, can be regulated but also that corporations are not people and that they cannot use corporate personhood rights as the basis for challenging our laws, because, well, they are not people. Following the Supreme Court’s Citizens United decision, the usual call has been that we need to amend just to say that Money is Not Speech in order to overturn the Citizens United decision but that is just not enough. While all the other proposed US constitutional amendments are directed at the money as speech clause and are directed at overturning only Citizens United, the Move to Amend proposal includes the other critical provision – Corporations are not people and should not have our constitutional rights.
Move to Amend’s proposal has been introduced into Congress as HJR48, the We the People amendment with over 66 Representatives listed now as co-sponsors. All of Oregon’s Democratic US Representatives except for Rep Schrader are among those co-sponsors. The We the People proposed constitutional amendment needs to be introduced into the US Senate as well and we have been meeting with both our Oregon Senators. Both have indicated interest. And a few weeks ago, Senator Ed Markey (D-MA) stated that he will introduce it. Now our job is to get our two US Senators to join him.
I have provided on your tables, two post cards – one blue to Sen Wyden and one yellow to Sen. Merkley asking that they co-sponsor HJR48 in the Senate. Additionally, there are petitions of support for Move to Amend . I ask that each of you sign the two post cards and the petition in support of Move to Amend. On the post cards, please also include your address on the face of the cards.
Let me finish up with this quote from former Supreme Court Justice Louis Brandeis, “We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both.”
and this quote from me: “We can have democracy only if we control both
money from being used as speech and the mighty corporations. It is time to Move to Amend the Constitution to say that money is not speech and corporations are not people.”