Over the last decade more than a hundred cities and towns across the country have passed ordinances putting citizens' rights ahead of corporate interests. They have banned businesses from dumping toxic sludge, building factory farms, mining, and extracting water for bottling.
Some have also refused to recognize corporations as people.
On Jan. 21, 2010, however, the US Supreme Court firmly rejected that idea in the Citizens United v. Federal Election Commission case, ruling that corporations are “persons” with First Amendment rights and cannot be prevented from spending unlimited funds on political campaigns.
David Cobb is determined to change that, and has returned to Vermont this week to promote the next steps in a campaign to amend the US constitution. Last January, Cobb, a former Green Party candidate for president who leads the Move to Amend campaign, spoke about the issue in Burlington, Waitsfield and Montpelier during a tour of the state organized by the Women's International league for Peace and Freedom. He also met with 11 state senators who agreed to support a Vermont resolution calling on Congress to initiate the process.
In a joint interview with Cobb on Vermont Public Radio, Ben Cohen explained this week that he originally felt amending the constitution “was an incredibly high bar. But when the Occupy Wall Street movement came around, I thought this makes it possible.”
On Tuesday evening Cobb took part in a Montpelier panel discussion with Jennifer Taub, a Vermont Law School associate professor, as well as Cohen and Jerry Greenfield, co-founders of Ben & Jerry’s Homemade. Since the Occupy protests, public attention has turned to economic inequality, corporate power and restricting the use of money in political campaigns.
In Vermont several organizations have picked up the call, including the Vermont Public Interest Research Group and Clean Yield Asset Management, which co-sponsored the Montpelier event to “kick-start a statewide conversation.” Sen. Bernie Sanders is leading the charge nationally, VPIRG’s Paul Burns calls the issue “one more opportunity for our small state to take the lead,” and activist groups, in Vermont and elsewhere, have held house parties to plan for a “day of action” on Jan. 21, the second anniversary of the Supreme Court decision.
The day before that, a Friday, Move to Amend will help to organize rallies at more than a third of the country’s federal courts, including the Supreme Court, in many cases while they are in session. Some participants will commit civil disobedience by blocking courthouse steps, Cobb predicts.
In an interview, Cobb agreed with Cohen that the energy and tactics of the Occupy movement can help generate a public groundswell. “One of their main demands is to abolish corporate personhood and get the money out of politics,” he said. Cobb, who has worked on the issue for a decade, has visited several Occupy encampments and participated in teach-ins.
Both Move to Amend and the Vermont Progressive Party want to put corporate personhood-related questions on the ballot for Town Meeting day in March. Meanwhile, Progressive Rep. Chris Pearson may introduce legislation to create new disclosure requirements for big donors who pay for political ads.
In 2009, Democrat Jason Lorber introduced H. 299, which proposed modifications to Vermont's public financing system and a provision to regulate reporting and disclosure of independent expenditures. Last year, the Senate Government Operations Committee introduced S.294, requiring that sponsor identification information be included on electioneering communications.
Cobb says that legislative efforts in areas like disclosure and financing can improve the process. “But we need to understand that this can’t be the end game," he insists. "If you reform the system but don’t deal with corporate personhood people can still raise and spend unlimited amounts.”
The amendment resolution introduced in Vermont last year by Sen. Virginia Lyons, the first of its kind in the country, proposes “an amendment to the United States Constitution that provides that corporations are not persons under the laws of the United States.”
Corporate profits and institutional survival “are often in direct conflict with the essential needs and rights of human beings,” it states. Corporations have used “so-called rights to successfully seek the judicial reversal of democratically enacted laws,” and governments have become “ineffective in protecting their citizens against corporate harm to the environment, health, workers, independent business, and local and regional economies.”
The resolution also points out that large corporations own most of the country’s mass media and use them to “convince Americans that the primary role of human beings is that of consumer rather than sovereign citizens with democratic rights and responsibilities.” With all that in mind, it concludes that the way forward is amendment of the Constitution “to define persons as human beings.”
Cobb calls the resolution a historic document and praised Lyons for showing leadership during the last session. “This is the first state to introduce at the legislative level a statement of principles that corporations are not persons and do not have constitutional rights,” he explained back in January. “It’s the beginning of a revolutionary action completely and totally within the legal framework.”
Vermont Law School Professor Cheryl Hanna, moderator of the Montpelier discussion, is a bit skeptical about constitutional amendment as a strategy, calling it “the least politically viable" approach. Two-thirds of Congress must approve, and then three quarters of the states, she notes.
The argument against focusing on amendment is that, due to the Supreme Court’s ruling on the rights of corporations to spend money during campaigns, changes like disclosure requirements, disclaimers, and increased transparency are probably the best short-term hope for mitigating the damage. “We have to look for ways to try to make it work within our limited power," argues Pearson, who may focus on requiring disclosure of top political contributors.
Another approach is to expand shareholder democracy and rights, requiring management to keep them informed and win their approval before making campaign donations. A model version, introduced last year in Maryland, would prohibit a corporation from publishing or distributing campaign material in the state unless it is true, the board of directors has decided the expenditure is in the best interests of the corporation, and the content of the campaign material and the money have been approved by a stockholder vote.
Cobb says it is essential to combine such legislation with a constitutional amendment strategy. “Abolitionists and trade unionists were also told that their strategy wasn’t viable,” he notes. “Our job is to expand the definition of political viability. When people are offered a choice an overwhelming number choose to do both.”
On the other hand, he acknowledges that it could take a decade or more to reach the final goal. “In the meantime, we need to create political space, have protests and political campaigns, and also go into state legislatures,” he says.
How a resolution calling for amendment of the constitution is worded will also make a significant difference. “It’s not like legislation, which can be passed and then altered,” he explains. “We have to get this right. If it’s just about money in elections we will have missed the boat. Disclosure is not going to solve the problem.”
Move to Amend offers some basic language, much of which is incorporated in Lyons’ version. Rejecting Citizens United, it calls for a Constitutional amendment to “firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights.” Linking that issue to participation and the right “to have our vote and participation count,” it also demands protection of communities, the economy and democracy “against illegitimate ‘preemption’ actions by global, national, and state governments.”
Somewhat different wording is advocated by Free Speech for People, a Massachusetts-based group founded by John Bonifaz, who has worked with Cobb in the past. This group’s approach, which has the support of Sen. Sanders, calls on “the United States Congress to pass and send to the states for ratification a constitutional amendment to reverse Citizen United v. Federal Election Commission and to restore constitutional rights and fair elections to the people.”
At the conclusion of a 90-page dissenting opinion on Citizens United, Justice John Paul Stevens wrote: "At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”
While eager to work with almost anyone on the issue, Cobb advocates an approach that combines careful legal strategy with political engagement and direct action, along with a straight-forward challenge on both corporate personhood and campaign finance.
“We should learn from the past,” he advises. “When the demands aren’t sufficiently concrete and systemic, they end up compromised.”
“Look, I’m a trade unionist,” he continues, “so I know we can’t compete with the Chamber of Commerce and Wall Street on raising money. Our strength is organizing people. A movement to amend will embolden and empower labor itself, and not simply organized labor.”
Cobb acknowledges, however, that neither unions nor non-profit groups have inherent, inalienable constitutional rights. Like corporations, they are also creations of the state. But their members have those rights.” This focus on individual rather than institutional rights is part of why a movement to amend the constitution can win support “across the ideological spectrum,” he believes.
The problem can be traced back to the mid-1970s. Congress amended the Federal Election Campaign Act in 1974 in an attempt to regulate campaign contributions and spending. Two years later, in the case of Buckley v. Valeo, the Supreme Court said that spending money to influence elections is constitutionally protected speech and struck down parts of the law. It also ruled that candidates can give unlimited amounts of money to their own campaigns.
In 2008, the dispute that led to the Citizens United decision was over the right of a non-profit corporation to air a film critical of Hillary Clinton, and whether the group, Citizens United, could promote the film with ads featuring Clinton's image, an apparent violation of the 2002 Bipartisan Campaign Reform Act, also known as McCain–Feingold.
The US District Court for DC denied a motion by Citizens United for a preliminary injunction to stop the Federal Election Commission from enforcing provisions of McCain–Feingold that prevented the film, Hillary: The Movie, from being shown on TV within 30 days of Democratic primaries.
The Supreme Court struck down a provision of McCain–Feingold that prohibited all corporations, both for- and not-for-profit, as well as unions from broadcasting “electioneering communications,” defined as a broadcast, cable, or satellite communication that mentions a candidate within 60 days of a general election or 30 days of a primary.
On the other hand, the Court did uphold requirements for disclaimer and disclosure by sponsors of advertisements. The case didn’t involve the federal ban on direct contributions from corporations or unions to candidate campaigns or political parties.
Justice Stevens wrote at the time that the Court's ruling "threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution." His dissent also said that the majority had "changed the case to give themselves an opportunity to change the law."
Until Citizens United, a century of US election laws prohibited corporate managers from spending general treasury funds in federal elections. Instead, they had to make expenditures via separate segregated funds, commonly known as corporate political action committees. Shareholders, officers and managers who wanted a corporation to advance a political agenda could contribute funds for that purpose.
But the Supreme Court's ruling says that corporations have the same First Amendment rights to make independent expenditures as natural people, and restrictions prohibiting both corporations and unions from spending their general treasury funds on independent expenditures violate the First Amendment.
According to Robert Reich, a public policy expert and former Secretary of Labor, the 2012 presidential race will probably be the priciest ever as a result, going as high as $6 billion. “Yet all this money is drowning out the voices of average Americans,” he noted in a Nov. 27 column for the San Francisco Chronicle. “Most of us don't have the dough to break through. Giving First Amendment rights to money and corporations has hobbled the First Amendment rights of the rest of us.”
Despite those odds, Cobb remains optimistic – at least that the current wave of Occupy activism, as well as legislative and Town Meeting activity in Vermont, can light a spark. “My commitment is to make democratic representation a reality again,” he says. “To do that we need to abolish corporate personhood and destroy the fiction that money is speech.”