Bernie Sanders proposes constitutional amendment to combat Citizen’s United

| December 8, 2011 | 11 Replies

As I watched this video of Senator Bernie Sanders introducing a proposed amendment to the U.S. Constitution, I felt like standing up and applauding and, even though I was the only one in the room as I watched the video, I did stand up and and I did applaud.

Yes, members of Congress.  You know it in your hearts that we desperately need to clean up our electoral process because it is arguably the only meaningful issue to be discussed.  Why would I say this?  Because without getting the money out of politics, we cannot have meaningful national conversations about any serious issue.  As Sanders indicates, the current system forces members of Congress to spend most of their time raising money and, worse, it invites big businesses to destroy any member of Congress who dares to rein in abusive business practices.   This corruption money=speech system is the reason that Congress is owned by big banks, insurers, telecoms, the military-industrial complex, big pharma and the fossil-fuel industries, and that Congress has repeatedly acted in deference to these industries, in ways that are harming ordinary Americans.

Here is the proposed language to the Amendment Sanders is proposing:

SECTION 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.

SECTION 2. Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.

SECTION 3. Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.

SECTION 4. Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.

The text of Sanders’ entire speech can be found at Huffpo.  Here’s an excerpt:

I strongly disagree with the Supreme Court’s Citizens United decision.

In my view, a corporation is not a person.

In my view, a corporation does not have first amendment rights to spend as much money as it wants, without disclosure, on a political campaign.

In my view, corporations should not be able to go into their treasuries, spend millions and millions of dollars on a campaign in order to buy elections.

I do not believe that is what American democracy is supposed to be about.

I do not believe that that is what the bravest of the brave from our country fighting for democracy fought and died to preserve.

PoliticusUSA discusses the above proposed amendment, offering this comment:

There is one interesting component to the Saving American Democracy Amendment that makes it different from all of the other proposed amendments and remedies designed to overturn Citizens United. Section 4 of the amendment strikes at the basis for every Supreme Court decision related to campaign finance. Sanders is also taking aim at the 1976 Buckley v. Valeo decision where the Supreme Court ruled spending money to influence elections was a form of protected free speech, and struck down limits on expenditures.

The amendment proposed by Sanders changes this by giving Congress the power to set expenditure limits on individuals, organizations, and candidates themselves. The Saving American Democracy Amendment would return the government back to the people by shutting off the money pipeline from the wealthy and special interests. It is also significant that the amendment limits the amount of money a candidate can give to their own campaign. This means that candidates would no longer have to be millionaires, or grovel at the feet of corporate America and the 1% in order to be able to run.

I agree with everything that Sanders’ proposed amendment attempts to accomplish.   I’m concerned, though, that it doesn’t go far enough because it appears to invite “non-profit” organizations to remain financially active in political campaigns.  To the extent that this is true, it is an exception that might swallow the rule.  Under the Sanders’ proposed amendment, the logical move for a for-profit business would be to donate to a “non-profit” that just happens to advocate for candidates and legislation that benefit for-profit entities.  This would give rise to numerous disputes about whether an entity is a legitimate non-profit  that happens to be friendly to for-profits, or whether that non-profit is an illegal facade, agent or co-conspirator money-washer or  joint venturer of a for-profit entity.

I have not yet considered all of the ramifications of the various constitutional amendments that have been proposed so far. I will need more time to do this.  It helps me to understand the Sanders proposal by comparing it to other proposed Amendments that attempt to get money out of politics. I would suggest that anyone concerned about these issues (everyone should be concerned) should also consider all of the ideas being floated, including the approach taken by Move to Amend, which does not limit the scope of its own proposed amendment to for-profit entities.   Here’s that proposed language by Move to Amend:

Section 1 [A corporation is not a person and can be regulated]

The rights protected by the Constitution of the United States are the rights of natural persons only.

Artificial entities, such as corporations, limited liability companies, and other entities, established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law.

The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable.

Section 2 [Money is not speech and can be regulated]

Federal, State and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures, for the purpose of influencing in any way the election of any candidate for public office or any ballot measure.

Federal, State and local government shall require that any permissible contributions and expenditures be publicly disclosed.

The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.

Section 3

Nothing contained in this amendment shall be construed to abridge the freedom of the press.

Where the Sanders approach might be too narrow, the Move to Amend approach might be too broad.   Do we really want to say that Congress should be able to limit advocacy conducted by all non-profits?  I would think that we would want to control only those non-profits that serve as mouthpieces and money launderers for for-profit businesses.  Perhaps the Sanders proposed Amendment already makes this clear enough.  Is there any pragmatic way to quickly and accurately categorize whether non-profits sufficiently independent or whether they are puppets for businesses?

As the Move to Amend proposal seems to invite, do we really want to allow Congress to limit the expenditures of individuals relating to the political campaigns of others?  My own physical voice is rather limited–could the use of a personal blog be considered an expenditure that could be limited under the Move to Amend proposal?  These thorny free speech issues suggest the reason that the Sanders Amendment starkly limits its scope to for-profit organizations.

It is important to remember that what Sanders has proposed would become Constitutional law, not mere legislation, and it would strongly restrain further court decisions. The Sanders approach will reverse Citizens’ United. A Supreme Court with integrity would still have some work to do in construing the Sanders Amendment, but it would also understand what needs to be done. I suspect that Sanders took his approach of carving out non-profits because he understands that non-profit organizations are the only meaningful way for most people to be heard. At bottom, under the Sanders approach, the task does seem to be to figure out a way to distinguish true non-profits from faux non-profits. Perhaps this can be done.

I applaud Bernie Sanders for introducing his proposed Amendment.  I doubly applaud his speech, because it clearly identifies what most ails the American political system.   Hopefully the speech of Bernie Sanders will ignite lots of fruitful discussion on Capitol Hill, though the sad irony is that the waves of corrupt money currently flowing through Congress will likely stifle this critically needed conversation.

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Category: Campaign Finance Reform, Civil Rights, Court Decisions, Law, Social justice

About the Author ()

Erich Vieth is an attorney focusing on consumer law litigation and appellate practice. He is also a working musician and a writer, having founded Dangerous Intersection in 2006. Erich and his wife, Anne Jay, live in the Shaw Neighborhood of St. Louis, Missouri, where they are raising their two extraordinary daughters.

Comments (11)

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  1. Tim Hogan says:

    It takes a 2/3 vote in each of the US House and US Senate to send a proposed US Constitutional Amendment to the states where 3/4 are required to ratify the Amendment before the President signs a statement of ratification and it becomes part of the US Constitution. I see zero chance of this proposed Amendment, or any other like it, getting a majority in our current US House or more than 51 votes in the current US Senate. We will not fix Citizens United with any proposed US Constitutional Amendment.

    We CAN do three things: sue the corporate bastards what gave away our shareholders’ monies without our permission; and, change the various states’ corporations’ laws to prohibit corporate political giving by legislation or ballot initiative; and, change the corporate governance rules of businesses we have a stake in to prohibit political giving or require a super-majority vote of shareholders to allow such giving.

    In the past, some have advocated a federal corporate charter instead of state corporate charters. If so, which would only take the normal votes in the US House and Senate and a Presidential signature, corporations could be banned by federal law from making such donations. Some say this would simply raise the original issue ruled upon in Citizens United but, the law would not restrict speech but level it so that the disparate impact of unlimited giving by un-natural persons would not surpass the privileges, immunities and rights of natural citizens who are real people with real rights guaranteed under the US Constitution, the Bill of Rights and the various Amendments to the US Constitution.

    I see no reason commercial speech may not be regulated in the corporate political sphere in a different fashion as it is generally regulated from the normal First Amendment protections of our natural citizens. Please remember, corporate speech is a relatively recent phenomenon in US jurisprudence.

    Do we now give corporations rights to be represented in the census? To be counted for purposes of the decennial Congressional redistricting? To be counted for purposes of the allocation of federal dollars directed to regular citizens?

    Is Delaware now entitled to half the US House based upon the numbers of corporate “people” domiciled there?

    Is Delaware now entiled to a majority of the Electoral College votes because of the numbers of corporate “people” domiciled there?

    Do I now just need to win the popular vote in Delaware to be elected President because of the numbers of corporate “people” domiciled there?

    I don’t think that we have seen the US Chamber of Commerce or any other corporate desperado standing in line armed and ready to go to a fighting war to protect the US from all enemies, foreign and domestic, so help them God.

    To grant any corporation the Constitutional rights of a natural person as Citizens United does is an abomination and cooly calculated to produce a particular political result unrelated to the more than 100 years of precedent it overulled and disrespects generations of Americans who have fought and died to protect our freedom.

    Citizens united to take actions stop the unregulated political spending of corporations in the fashion described stand a chance of restoring some semblance of parity between We, the People and the corporate intersts in America.

  2. Erich Vieth says:

    Bernie Sanders discussed his proposed Amendment with Dylan Ratigan;

    Visit msnbc.com for breaking news, world news, and news about the economy

  3. Erich Vieth says:

    Dylan Ratigan interviews Mary Beth Fielder of “Move to Amend,” who offers scientific evidence that corporations are not people. http://www.dylanratigan.com/2011/12/06/the-great-28-debate-grassroots-movement-in-la-wants-to-get-money-out/

  4. Karl says:

    Trying to claim that only corporations are the blight upon a corrupt political system is a sham. It would still be easier to change the IRS into an office of internal affairs that oversees the sources of income and the expenditures “or bribes” paid to politicians so that every collective organizations and even all American’s that possess wealth over a certain minimum level are not allowed to continue with “corruption” as usual.

    This could be passed in Congress without any need for a Constitutional Ammendment. It would be the same as stating the government needs revenue and if you want to influence the functioning of governement with large amounts of money just be aware that the government will get the lions share of your money, perhaps as much as 99 percent.

  5. Well, imagine my surprise to see my old bandmate (where you played guitar and I played drums —Coconuts) having his own website, with such great stuff!

    Bravo Erich!

    I am going to post that video to MY blog (joyannaadams.wordpress.com)because the Supreme Court works for the big guys. And Sanders is right, our politicians work for the banks and big CEO’s, Like Jeffery Immelt.

    Money. Follow the money. Remember when George Bush Jr. wanted to give Dubai the job of watching our ports?

    Good god.

    They should get rid of corporations having the power to take whatever land they want and kick the little guy out of his property. What fools on the Supreme Court forgot to read the Constitution, and our right to eminent domain? They will not overturn Obamacare either.

    We are being run by Banks and CEO’s. Our U.S. Treasury guys: Rubin, Paulson…Goldman Sachs want the world.

    What a joke…and now, those Goldman Sachs guys are running Italy.

    Corzine spent $63 million to become the senator of New Jersey. The rich have taken over…call them what you like…they make Genghis look like a schoolboy.

    Okay, I’m mad,so—Im putting you in my favorites Erich. And god bless Bernie Sanders for this great rant!

  6. Erich Vieth says:

    “Two high level Congressional staffers who have been instrumental in creating or moving forward both PROTECT IP (PIPA) and SOPA have left their jobs on Capitol Hill and taken jobs with two of the biggest entertainment industry lobbyists, who are working very hard to convince Congress to pass the legislation they just helped write. And people wonder why the American public looks on DC as being corrupt.”

    http://www.techdirt.com/articles/20111209/10151917022/shockingly-unshocking-two-congressional-staffers-who-helped-write-sopapipa-become-entertainment-industry-lobbyists.shtml

  7. Erich Vieth says:

    Dylan Ratigan lists 13 proposed versions of an Amendment to get money out of politics. http://www.huffingtonpost.com/dylan-ratigan/on-our-way-to-climbing-ev_b_1151433.html

  8. Karl says:

    The only means of controlling corruption is either through imprisionmsnt or through the pocketbook itself.

    The Schrader Amendment has some merit but that could never fly as a national ammendment. Congress has to take the bull by the horns itself and simply make percentage (perhaps as much as 198 percent) IRS tax levies upon the money that passes through the oversight and use of political candidates, office holders and their associates, but especially the lobbyists.

    Also the pensions of people (including all government employees, volunteers and labbyists) that have been proven to have influenced the expenditures of Congress along factional lines should lose their pensions. Let them see if they want to live without their pensions whether governmental or private.

    If someone even just states as a matter of public record that there should be an investigation into the political connections that awarded public funding that was anything but “physical ongoing product based,” their corporate, union, and even personal gains from such influence must be potentially seen exactly as what it very well could be – corruption.

    This could only be verified as not being corruption by a panel of independent judges with no political motives themselves. Their only motivation would be to keep the public debt under control. If these IRS judges were seen as playing favorites they would lose their jobs and pensions aas well.

  9. Erich Vieth says:

    Bill Boyarsky at Truthdig:

    “It took just 12 minutes and 29 seconds on the Senate floor for Sen. Bernie Sanders to expose the real power of corporate America over our elections. It should be a rallying cry for the embattled minority trying to clean up the system.”

    http://www.truthdig.com/report/item/bernie_sanders_explains_why_congress_fears_citizens_united_20111216/

  10. Adam Herman says:

    Just one minor flaw with this whole idea. If corporations don’t have rights, then corporations don’t have freedom of the press, which means the NY times, Miramax films, and Sony Music do not have rights. If corporations do have freedom of the press, but no other rights, then all you’ve done is give the government license to do whatever it wants to corporations. EXCEPT prevent them from electioneering, which was the whole point of the amendment!

    I think that Sanders is trying to carve out special privileges for the NY Times and Fox News, but where does that leave say, Miramax films and a movie like Fahrenheit 9/11? Wouldn’t that be censorable under his amendment?

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