Moving Toward a 28th Amendment

January 24, 2019
Carrie Seidman

A nationwide effort is underway to overturn corporate ‘personhood’

It’s not easy to pass a constitutional amendment. The last time it happened was in 1992, when the 27th set requirements for changes in compensation to members of Congress.

It had first been introduced more than 200 years earlier, in 1789.

So the forces behind Move to Amend are under no delusion that ratifying a 28th amendment — one that asserts the inalienable rights of the First Amendment apply only to human beings, not to corporations, and that money does not represent a form of free speech — is going to be an easy task.

“A lot of people think this is too hard to accomplish,” said Arlene Sweeting, director of the Sarasota’s Peace, Education and Action Center, which provides a nonprofit umbrella for the Manasota Move to Amend affiliate. “But we can’t legislate our way out of this. We’re looking to pass the 28th amendment, but the larger picture is to build this grassroots democracy effort to address all our most pressing issues.”

The national MTA organization got its start more than nine years ago when a group of concerned citizens met in a living room in advance of an impending 2010 Supreme Court decision in the case of Citizens United v. FEC. As they anticipated, several months later the court granted corporations and organizations the right to make unfettered (and often undisclosed) contributions to campaigns, providing an unprecedented opportunity to alter the political landscape. Since then, the influence of corporate dollars on election results, even in Sarasota, has had a significant and pervasive impact.

While Citizens United was a wakeup call for anyone concerned about preservation of the democratic process, it was hardly the first time the highest court in the land had chosen to favor, as historian James McGregor Burns once put it, “the well-bred, well-fed, well-read and well-wed.”

“Citizens United opened the floodgates for corporations and super PACs to influence our elections,” said Keyan Bliss, grassroots volunteer coordinator for the national MTA group, who spoke recently to a full house at the Fogartyville Community Media and Arts Center. “But the root of the problem is deeper than Citizens United and goes back far further than 2010.”

Bliss detailed a history of more than 130 years of Supreme Court decisions that have expanded rights for wealthy and powerful corporations and organizations while less diligently protecting the rights of individual citizens.

That began with an 1886 decision in Santa Clara County vs. Southern Pacific Railroad, which set a precedent for corporations to receive the same “due process and equal protection under the law” that individuals had, as well as opening a door for corporations to claim additional rights. In effect, that granted corporations legal personhood at a time when many individuals — including women, Native Americans and most African American men — were still being denied the right to vote.

This was followed by a 1906 ruling that granted corporations Fourth Amendment protections against “unreasonable search and seizure” (including of a corporation’s books) and another in 1922 that granted the Fifth Amendment “takings” clause regarding rights to eminent domain. (Which is why a Walmart can be plunked into a neighborhood against the will of nearby residents.) Later decisions, in 1947 and 1976, extended First Amendment rights, including the freedom to give unrestricted funding to political parties and candidates.

Meanwhile, every time individuals have won new rights, such as those earned through the Civil Rights Act, corporations have become eligible too.

“Corporations didn’t earn these rights, they were granted these rights by judges in the highest court in the land,” Bliss said. “And at the same time, actual human beings rights were being restricted.”

At our country’s beginning, our forefathers relinquished some personal power to the government, which was intended to be subordinate to the will of its citizens. “And that would be fantastic, if we actually practiced it,” Bliss said. Instead corporations, which are artificial entities created by state law, have been granted protection of rights, while many disenfranchised individuals still struggle to earn basic recognition.

“We can’t have a real democracy movement without protecting marginalized communities,” Bliss said, singling out women, people of color, immigrants, poor people and the LBGTQ community. “Our old republic was founded on the wishes of wealthy, white men. We need to include everyone who was left out the first time around.”

The proposed new amendment would not take away any legal rights from corporations; they would retain the legal privileges they’ve been granted, such as the right to own property, to sue and be sued and to speak on behalf of their members. The difference is that those and other rights would not be deemed “inalienable” or inherent, as the right to “life, liberty and the pursuit of happiness” is for human beings.

Polling has shown that more than 80 percent of Americans agree with MTA’s resolution and feel strongly that corporate money has tainted the democratic process and campaign finance reform is necessary. Nearly a half-million people have signed MTA’s national petition and more than a dozen political party organizations have pledged support. Nineteen states have passed the resolution — most by legislatures, but a few by ballot initiatives — including conservative states like Montana. And nearly 800 local jurisdictions, including Sarasota, have also signed on.

Thus far, the amendment has been proposed in three previous Congresses. As of the end of 2018, it had 65 supporters in the House of Representatives and endorsements across the political spectrum, from Republicans, Democrats, Independents, Greens and Progressives.

But the question the amendment seeks to answer is not a political one, Bliss said, but one of constitutional law.

“Who is a person? And is money property, or is it speech?” Bliss asked. “We view this as a human rights issue that intersects with every issue of protection today. It should be a litmus test for all candidates going forward.”

Contact Carrie Seidman at 941-361-4834 or carrie.seidman [at] heraldtribune.com. Follow her on Twitter @CarrieSeidman and Facebook at facebook.com/cseidman.

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