This blogpost was co-authored by Cato legal associate Kathleen Hunker.
Any prizefighter worth betting on knows that the worst thing you can do in a tough match is succumb to frustration. House Democrats should heed that wisdom. Frustrated by the Constitution’s interference in their efforts to muzzle certain kinds of political speech, Rep. Jim McGovern (D-MA), House Minority Leader Nancy Pelosi (D-CA), and 27 other congressmen have proposed a constitutional amendment that would overturn the Supreme Court’s holding in Citizens United.
Unfortunately, in their haste to deliver a blow against evil corporations, these lawmakers have exposed the Constitution’s flank in a way that would lead to debilitating blows against individual civil rights were this measure ever adopted.
The proposed change, absurdly titled the People’s Rights Amendment, asserts that the Constitution protects only the rights of “natural persons” and that Congress retains the ability to subject “all corporate entities” to any regulation or restriction Congress deems “reasonable.” Its supporters contend that the Amendment is necessary to reduce the role of money in politics and ensure that elections represent the voice of the people. As several commentators have already observed, however, the amendment does far more than subject corporations to new campaign finance regulations.
Although the People's Rights Amendment says that it shall not be construed “to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people,” it radically contracts those and other rights entrenched in America’s political tradition.
George Will's latest column explains this very point. In addition to denying “natural persons” the right to associate and speak in concert,
McGovern stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” — have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.
Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights.
Instead of removing corporate money -- which goes much more to lobbyists (petitioning for redress of grievances) than electioneering anyway -- the amendment grants Congress the power to strip think tanks, advocacy groups, charities, newspapers, political parties, and even a candidate’s campaign of the right to criticize and oppose the government. Any political speech more complex than standing on a park bench at an Occupy rally becomes subject to the whims of federal bureaucrats. Even books don't escape the amendment’s long reach, as the government lawyer admitted would be the case under the pre-Citizens United law that the amendment hopes to reinstate.
McGovern and Pelosi haven’t answered how the People’s Rights Amendment ensures that elections represent the voice of the people when it takes away the very venues on which the people stand to have their voice heard.
George Will makes a second foreboding observation. He notes that, by stripping corporations of all constitutional protections, the amendment would empower the government to do much more than proscribe speech:
[G]overnment, unleashed by McGovern’s amendment, could regulate religious practices at most houses of worship, conduct whatever searches it wants, reasonable or not, of corporate entities, and seize corporate-owned property for whatever it deems public uses — without paying compensation. Yes, McGovern’s scythe would mow down the Fourth and Fifth Amendments, as well as the First.
For more on these dangers, see here and here. Of course corporations aren't human beings, but that brilliant insight is legally irrelevant. Corporations are formed by individuals as a means of exercising their constitutionally protected rights, and those individuals do not lose the protection of the Constitution by choosing to exercise their right to associate and pool their resources.
Thus, while a corporation does not enjoy the full breadth of constitutional rights (i.e., sexual privacy), it warrants whatever degree of protection is necessary for its members to exist as free and rational beings. These rights certainly extend to the ability to publicize and support political initiatives.
Before the supporters of People’s Rights Amendment make that massive lunge against what they view as constitutional frustrations, they should take a step back and reassess whether the satisfaction they derive from sticking it to corporations is worth the potential collapse of our political system’s commitment to a free society.