Five years ago, the Supreme Court handed down its Citizens United decision striking down the prohibition on corporate expenditures in federal elections. The court’s 5-4 decision opened the floodgates for corporate and undisclosed dark money to pour into the election process. According to the Center for Responsive Politics, the number of donors giving more than $1 million to outside groups during elections has grown from two in 2006 to 84 in the 2014 congressional elections. The right-wing Koch Brothers have pledged to use their network of conservative advocacy groups to spend a staggering $900 million in advance of the 2016 presidential election.
In the Citizens United case, the Supreme Court ruled corporations are people, with the same right to influence politics as voters. Meanwhile, many corporations, including McDonald’s, Monsanto and Peabody Energy, have cited the principle of corporate constitutional rights in recent efforts to fight back against new laws. McDonald’s and other franchises are now suing the city of Seattle over its new $15-an-hour minimum wage law, arguing it violates its corporate personhood rights. On Tuesday, the International Franchise Association told a federal judge that the law unfairly discriminates against franchise owners by treating them differently than local small business proprietors. They’re basing their case on the 14th Amendment, a constitutional provision written to protect newly freed slaves after the Civil War and ensure equal rights for all people. Monsanto is challenging Vermont’s recently passed GMO-labeling law under the First Amendment, claiming it forces them to speak against their will.
Ron Fein talking:
The idea of a corporate personhood is a doctrine that comes out originally of state law, and it enables a corporation to have some of the legal rights of people when we deem that it is appropriate for them to do so. So, for example, a corporation can own property, sell property, sue and be sued. And that’s all good. But when we’re talking about the Constitution, that metaphor of the corporation as a person becomes extremely dangerous, because it leads to fuzzy thinking. And that’s why we see things like the Equal Protection Clause cases, where corporations are claiming that regulations about the minimum wage that treat certain types of corporations differently from others are a form of discrimination that we should be concerned about. And similarly, under the First Amendment, we see also corporations using the metaphor of personhood to refuse to speak, as if they were a dissenting religious minority, when what’s being asked of them is to disclose information about what’s in the products that they sell.
So when you take that metaphor of corporate personhood from its origins in state law and you transpose it onto the Constitution, it becomes extremely dangerous. And that’s why we’ve seen a sustained and renewed assault on laws, ranging from minimum wage to genetically engineered food disclosure, to disclosure of products coming from war-torn regions of Central Africa, to a St. Louis, Missouri, ballot initiative that seeks only to end public tax breaks for fossil fuel producers and is also being challenged as violating the Equal Protection Clause.
The claim that is being brought by the International Franchise Association against Seattle’s new $15-an-hour living wage law is that the schedule for implementation treats franchise businesses unfairly because it phases them in at a different schedule than local small businesses, so they have to comply with the law at a different time. And the reason for that was the Seattle City Council studied the issue, and they determined that, for example, a McDonald’s restaurant with 50 employees is not really comparable to a small independent restaurant with 50 employees, because it gets the benefits of coordinated marketing and advertising and product development and bulk purchase agreements that an independent restaurant doesn’t get. That’s the basis for their claim.
Now, they’ve challenged the Seattle living wage law under a whole kitchen sink of theories. One of them is the Equal Protection Clause. And that clause is part of the 14th Amendment, which was designed to protect the rights of the freed slaves after the Civil War. And it is good that the Equal Protection Clause has expanded in recent years to protect additional categories of people, like gay and lesbian Americans, as we’ve seen in the marriage equality movement, but it was never intended to protect corporations. And, in fact, our research has shown that the authors of the 14th Amendment in the 1860s, as Reconstruction was occurring in the South, were particularly concerned about whether the newly freed slaves were able to earn fair living wages. And the United States government took action, leading up to the 14th Amendment, to ensure that there were fair living wages available for the freed slaves as they continued working in the South.
So, the corporate claims under the Equal Protection Clause came from after the Civil War, when the Supreme Court determined, with no evidence or interpretation whatsoever, that when the Equal Protection Clause says that a state cannot deny the equal protection of the laws to any persons within its jurisdiction, that persons includes corporations. And the Supreme Court then used this as a tool throughout the Gilded Age, in the late 19th century and early 20th century, to strike down minimum wage laws, child labor laws and a host of other laws. And that continued until the New Deal, when, finally, FDR, with the public at his back, stood up to the Supreme Court, and the Supreme Court backed down. And that led to the postwar era of the 1940s, ’50s and ’60s, when corporations were not asserting any constitutional claims, by and large, and yet we had the greatest shared economic prosperity of this country in generations. So McDonald’s is comparing itself to freed slaves.
Vermont case, Monsanto challenging Vermont’s recently passed GMO-labeling law under the First Amendment, claiming it forces them to speak against their will.
This is a line of cases known as “compelled speech.” And it starts with the 1940s, where the Supreme Court held that Jehovah’s Witnesses shouldn’t be forced to recite the Pledge of Allegiance against their will, because it violates their human dignity. In recent years, the courts have begun extending that same principle to corporations. But corporations are artificial entities created by state laws. They’re not endowed by their creator with inalienable rights; they’re endowed by state laws with specific rights provided in their charters.
But the courts have now been granting the right to avoid disclosure of product ingredients to corporations. And so, when Monsanto and other grocery food manufacturers are challenging Vermont’s law, saying that they do not wish to reveal whether their products contain genetically engineered ingredients or not, they’re actually standing on some recent Supreme Court First Amendment precedent that’s in their favor. And unfortunately, as our legal adviser, John Coates of Harvard Law School, has shown, in recent years there’s been a corporate takeover of the First Amendment, where an increasing percentage of the courts’ First Amendment dockets are occupied now by corporate claims of this type.
the criminal justice system, a person commits a crime, they go to jail. A corporation commits a crime, it gets a fine. Or, I mean, a corporation can’t be jailed. a factory blows up, and you kill several of the workers. Or a mine, there’s a mine accident, and your negligence results in the deaths of several of your workers. Nobody goes to jail, in terms of a corporation.
There are two constitutional amendments that we at FreeSpeechForPeople.org and other allies in the field are promoting. One is called the Democracy for All Amendment, and that would overturn the Supreme Court’s campaign finance decisions. So that would enable local, state and federal government to set limits on spending money and raising money to influence elections. The other constitutional amendment that we’re promoting is called the People’s Rights Amendment, and that would clarify that the rights in the Constitution are rights of natural persons, not corporations.
Now, that doesn’t mean that there will never be a case where a corporation can come into court asserting the rights that belong to natural persons. The problem is, the way the Supreme Court has it set up right now is that corporations are always assumed to be asserting rights that ultimately belong to actual people. A corporation can just waltz into court assuming it has a constitutional right, and it might win or lose on the details, but no one questions whether it has the right. What our amendment would do is it would force the courts to do a two-step analysis. The first step would be to say, “Who are the actual people who are being affected by this law, and do they have a constitutional right at issue here?” The second step would be to say, “Do those people have a constitutional right to use the corporate tool to exercise that right?” And so, what that would mean is that we would have to look behind the corporate form to say, “Are there actual people here whose rights are actually being violated?” And that would change the entire discourse that we’ve been having.
And in terms of the question about corporate crime, I think that there are two things that need to happen. One, we need to have continued individual responsibility. White-collar criminals should be prosecuted more than they have been. But also, it is in fact true that a corporation can get the death penalty. Every state of the union has some provision for revoking corporate charters. And these powers belong usually to the attorney general of the state. They’re not often used nowadays. But at FreeSpeechForPeople.org, we are very shortly going to have on our website a model corporate charter revocation law that would provide that when a corporation has committed repeated multiple felonies within a short period of time, then its corporate charter can and should be revoked.
when we began the constitutional amendment campaigns the day of the Citizens United decision, a lot of people thought that they would never go anywhere. But, in fact, we have got 16 states and over 630 cities and towns across 38 states that have passed resolutions, either by ballot initiative or by votes of the legislature, endorsing the constitutional amendment movement. And we had a Senate vote on the floor of the Senate this past fall, which got a majority of Senate votes, although it didn’t reach the necessary two-thirds threshold. But constitutional amendments take a long time. These are not processes that happen quickly, because the Constitution itself provides for a process to make sure that constitutional amendments are deliberate. So right now we’re in the phase of building grassroots support and educating people about the need to restore and repair our Constitution to the vision that the founders had. And for that, I think you for the opportunity to appear on this program.
most often an assertion of corporate rights, as part of this new corporate civil rights movement, acts directly against human rights. So, again, to review just some of the cases, in the living wage challenges, which we’re seeing not only in Seattle, but also in Los Angeles, when the corporation is asserting an Equal Protection Clause right to not pay the living wage on the same schedule that they would be required to by the law, that goes against the human rights of the workers to receive that living wage on which they can feed their families. When Monsanto and other grocery manufacturers are asserting a First Amendment right not to reveal what products they are selling that contain genetically engineered ingredients, that violates the rights of Vermont consumers who want to know that information. And when you see the National Association of Manufacturers challenging a federal law that requires them to disclose whether their products contain minerals that come from the Democratic Republic of Congo, because, again, they don’t want to speak about it, that has a direct impact on the lives of people who live in Africa who are being harmed by the ongoing conflict and by the minerals trade that fuels the militias. So, when you see a corporation asserting a constitutional right, whether it be in the case of Hobby Lobby, with the shareholders asserting a right that acts to the detriment of their employees, or in any of these other cases we’ve discussed, it’s usually to the detriment of people.
— source democracynow.org
Ron Fein, legal director at Free Speech for People.