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Overturning Citizens United: Is a Constitutional Amendment the Best Path to Limit Dark Money?

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On Tuesday, Independent Sen. Bernie Sanders of Vermont and Democratic Rep. Ted Deutch of Florida introduced a constitutional amendment to overturn the Supreme Court’s 2010 landmark Citizens United ruling that cleared the way for corporations and other special interest groups to spend unlimited amounts of money on elections. The bill is part of a growing movement to overturn the ruling. Today we host a debate on whether the push for a constitutional amendment is the best path to overturning Citizens United. We speak to Mark Schmitt, a senior fellow at the Roosevelt Institute, and John Bonifaz, co-founder and director of Free Speech for People. [includes rush transcript]

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StoryJan 05, 2012Citizens United Backlash Grows from Cali. to NYC Urging Congress to Overturn Corporate Personhood
This is a rush transcript. Copy may not be in its final form.

NERMEEN SHAIKH: We turn now to the movement to challenge “corporate personhood,” the notion that corporations have equal rights to individuals. On Tuesday, Independent Senator Bernie Sanders of Vermont and Democratic Congressman Ted Deutch of Florida introduced the “Democracy is for People Amendment,” which seeks to overturn the Supreme Court’s 2010 landmark Citizens United case. In a five-to-four vote, the court ruled corporations have First Amendment rights and that the government cannot impose restrictions on their political speech. This cleared the way for corporations and other special interest groups to spend unlimited amounts of money on elections.

The proposed amendment states that only “natural persons” can financially influence the outcome of public elections. If enacted, the amendment would completely prohibit for-profit corporations, nonprofit organizations and unions from making expenditures in elections. Congressman Deutch said in a statement, quote, “The Democracy is for People Amendment will stop corporations and their front groups from using their profits and dark money donations to influence our elections while reaffirming the right of the American people to elections that are fair and representatives that are accountable.”

AMY GOODMAN: Meanwhile, state legislatures of North Carolina, West Virginia, New Hampshire have introduced resolutions condemning Citizens United. All three resolutions call on Congress to pass a constitutional amendment to reverse the 2010 decision and limiting money in politics.

However, not all critics of the Citizens United ruling believe the amendment movement is a fruitful endeavor. Mark Schmitt wrote in The New Republic that the amendment movement, quote, “undermine[s] progress on other solutions, including public financing, improvements in corporate governance to give shareholders more say in political contributions, disclosure improvements, and better enforcement of existing laws by both the Federal Election Commission and the Internal Revenue Service,” unquote.

Well, for more, we’re hosting a debate with two critics of Citizens United on opposite ends of the amendment issue. In Washington, Mark Schmitt is with us, the senior fellow at the Roosevelt Institute and former editor of The American Prospect. Here in New York, we’re joined by John Bonifaz, a constitutional attorney, co-founder and director of Free Speech for People. He’s helped lead the amendment efforts.

Mark and John, we welcome you both to Democracy Now!

JOHN BONIFAZ: Thank you for having me.

AMY GOODMAN: Well, why don’t we start with John? Lay out why it is you’re pushing this amendment and where it stands in the country right now.

JOHN BONIFAZ: Sure. Well, you know, Amy, when we launched this campaign, the day of the Citizens United ruling, there were plenty of skeptics who thought it couldn’t be built, this movement wouldn’t have any staying power, it was too difficult. And I think we’ve proven, with our allies in the field—Common Cause, Public Citizen, People for the American Way, Move to Amend and many others—that those skeptics are now wrong. Eleven states are on record calling for a constitutional amendment, 500-plus cities and towns across the country. Members of Congress, business leaders, religious leaders and the president of the United States have all come out in support of this.

And we need this amendment because the only way to overturn a United States Supreme Court ruling is through a constitutional amendment or waiting for a new majority of the Supreme Court to do so. And the people understand in this country that the Supreme Court is wrong on this basic question. Corporations are not people. They do not breathe. They do not think. They do not have a conscience. They’re artificial entities that we create. And people should govern over corporations, not the other way around.

AMY GOODMAN: And so, the constitutional amendment says exactly what?

JOHN BONIFAZ: Well, there are various proposals out there, but there are two major problems that the constitutional amendment needs to address. First, it needs to address the point that Congress and the states shall have the authority to limit overall campaign spending and campaign contributions. This dates back to a 1976 ruling, Buckley v. Valeo, which equated money with speech and set forth this system of unlimited campaign spending we have today. The other problem is the problem of corporations being treated as people under the Constitution. These corporations argue, in court cases after court cases, that they in fact have the rights of people, natural persons. And those arguments are being used to strike down public interest laws protecting our environment, our healthcare, consumer rights, civil rights, and now our elections. And we need to address both problems via these amendment bills.

NERMEEN SHAIKH: So, Mark Schmitt, can you explain why it is that you’re opposed to efforts at a constitutional amendment?

MARK SCHMITT: Sure, and I’m glad to be here. I’ve always viewed—I am not surprised that the constitutional amendment has caught on. I was not a—I wasn’t the kind of skeptic that John describes. I think it’s easy to describe. I think it’s easy to get people to sign a petition for it, because it sounds very clear-cut.

I view it as a real distraction from some real progress that we can make on money in politics, because while you can build a movement around these various—there are like 17 different versions of the amendment. While you can build a movement around this concept, the message it sends is: We can’t do anything until we have a constitutional amendment. And under the current circumstances, “We can’t do anything until we have a constitutional amendment” is exactly the same as saying, “We can’t do anything.” And so, I think that’s just sending the wrong signal to people and overlooking the tremendous progress that’s actually being made, which John knows because he was there at the birth of it, really, on public financing that offsets the role of big money from individuals and big money from corporations, which really are not dramatically different. Whether Sheldon Adelson writes money as an individual or through his corporate entity, it really doesn’t matter all that much. But we can offset that money with good public financing, such as in New York City, Arizona, Connecticut. These systems are popular. They’re resilient. They withstand legal challenges. And that’s really where, you know, the energy ought to be focused at this point.

NERMEEN SHAIKH: But why can’t—Mark Schmitt, why can’t these efforts take place in conjunction with an effort to push through the constitutional amendment?

MARK SCHMITT: Well, as long—you know, to the extent that you’re making clear that you don’t need the constitutional amendment to do—to make some progress, you know, it’s not—it’s not the worst thing in the world. A lot of it depends on which amendment it is. I don’t have a problem with an amendment that overturns Buckley v. Valeo and says that we can limit overall spending on a campaign, as well as contributions.

The corporate personhood issue is a lot more complicated. I mean, a simple example of it is, John works for an organization called Free Speech for the People Incorporated. It’s a corporation. Corporations are how we organize everything in American society. It’s how, you know, political parties are incorporated. It’s really the form of organization we use. And at some level—you know, I work for a corporation. Many of these corporations are actually organized for the purpose of political speech.

AMY GOODMAN: So, in a sense—

MARK SCHMITT: So I think it’s a pretty big leap and goes way beyond what actually happened in Citizens United, in which corporate personhood is a very tangential concept to Citizens United.

AMY GOODMAN: So, in a sense, John, you work for the man, because if a corporation is a person and you work for a corporation—well, I guess, for the man or the woman. But, well, what do you think is wrong with what Mark’s saying, that these other efforts would be more productive?

JOHN BONIFAZ: Well, first let me say that there’s a lot that Mark and I agree on. I mean, public funding of elections is a critical reform, and I couldn’t agree more that needs to happen, as well. Where we may disagree is the idea that somehow these are not complementary efforts. In fact, the constitutional amendment campaign, which returns the country to the first principal question of what we are as a nation, is that we, the people, or we, the corporations, can help propel these other kinds of important reforms. So, I am a longstanding advocate for public funding of elections. I believe in it. But the Citizens United ruling has set us on a course which allows these artificial entities to now spend unlimited amounts of corporate dollars into our elections, undermining any public funding system. We need both efforts to go forward.

As for the point that Free Speech for People Inc. is a corporation and somehow should have free speech rights is just antithetical to what the framers intended, what our Constitution is about. I’m a natural person. You’re a natural person. Nermeen’s a natural person. Mark’s a natural person. But these corporate entities are not natural persons. We are—

AMY GOODMAN: Why were they bestowed with this?

JOHN BONIFAZ: Well, this is an artificial creation, really, of corporate America over the past 30 year, in the most recent era, to undermine the First Amendment and the Constitution, the argument being made that these entities need to have free speech rights alongside natural persons. But, you know, the point here is that the members of Free Speech for People Incorporated, the supporters, all have constitutional rights. Nothing is going to be changed by these constitutional amendments on that point. What will be changed is restoring democracy to the people, making clear that we govern over corporations, not the other way around.

NERMEEN SHAIKH: John, can you also respond to what Mark Schmitt said about there being something like 17 versions of this amendment?

JOHN BONIFAZ: Well, look, we’re in an early stage in the drafting of this amendment language. The key thing that has to be done here is to build a broad grassroots movement for this amendment, and we’re more than a quarter of the way there, with over 11 states on record—takes 38 states to ratify—and now many members of Congress coming forward. We support Congressman McGovern’s amendment bills that he’s introduced, the “People’s Rights Amendment,” H.J. Res 21, and the amendment we call the “Political Equality Amendment,” H.J. Res 20, which would deal with these two basic problems: unlimited campaign spending and the problem, the fabricated doctrine of corporate constitutional rights.

But we’re not at the point now where we have to all come together behind one specific language. What we really need to do here is build this broad movement, which is being built. And as you said in the opening, there are many other states where these resolutions are advancing. Again, this propels other reforms, including public funding of elections, transparency, shareholder approval. We need this vibrant democracy movement if we’re going to protect the promise of American self-government, of, for and by the people.

AMY GOODMAN: In unveiling his “Democracy is for People Amendment,” Florida Democratic Congressman Ted Deutch said, quote, “Any constitutional amendment that simply gives Congress the option of regulating campaign finance fails to immediately achieve what the American people want, and that is a complete reversal of Citizens United and other Supreme Court decisions that have allowed corporations and the wealthy few to drown out the voices of everyday voters.” John Bonifaz?

JOHN BONIFAZ: I think it’s an important new introduction, another amendment bill that needs to be put forward and debated in the Congress. But again, we really have to build this from the states. And that’s the work that’s happening today.

NERMEEN SHAIKH: Mark Schmitt, can you also respond to the comments that Florida Congressman Ted Deutch made, and also elaborate a little on what kind of campaign finance reform you think is plausible and should be pursued?

MARK SCHMITT: Sure. I mean, I think, you know, Citizens United was wrongly decided. It went way beyond even the question that was before the court, without even—without even requiring any of the issues related to corporate personhood. I think we’ve made a lot of progress in this—we’re really undergoing a grand experiment with how much we can do with public financing of elections. And I think we’re beginning to find that those systems—those systems that either provide a fixed amount of money to candidates who agree to forgo most private money or that match small contributions, like New York’s system of a six-to-one match, or the system in Minnesota that’s been defunded but, while it was there, was a tax credit, so essentially you got a fully refundable tax credit, so essentially you got like a free$50, every citizen, to contribute to campaigns—that those can really help candidates get to the point of being heard without—without turning to big money, and get them enough that they’re not necessarily shot down by big money. So that has to be, I think, the biggest priority. And I don’t think that—you know, I don’t want to send any signal that you require a full reversal of Citizens United in order to make progress on those grounds, because you really—you really, really don’t. And there are at least two or three bills in Congress, such as Senator John Sarbanes’s Grassroots Democracy Act, that can begin to move in this direction.

I would hope—I would hope we’d have a change in the tide at the court. You know, there are five members in that Citizens United majority. I think two of them are in their seventies, one of them in his sixties. You know, the odds are not bad that President Obama or the next Democratic president will have an opportunity to remake that majority. You know, the four who were in the Citizens United minority hold it very strongly. Those four don’t—you know, they—if their position prevailed, you certainly don’t need a constitutional amendment to do that. So I think that—I think that there’s reason to hope that the Supreme Court could shift without this very, very, actually quite sweeping amendment, that I don’t really know what happens after a full corporate—you know, “corporations aren’t people” amendment. I don’t know what happens to the rights of organized groups like Free Speech for People Incorporated after that.

AMY GOODMAN: John Bonifaz?

MARK SCHMITT: I think it’s a weird area.

JOHN BONIFAZ: Yeah. Well, the rights are protected by the Constitution as they always have been. The individual rights is what’s at stake here, not the corporate rights that are a fabrication.

But let me just address the point about movement on the court. You know, there’s a good historical example of how a constitutional amendment can help move a court. The poll tax, which, as we know, was a fee charged to voters in order to vote, was upheld by the U.S. Supreme Court in 1937 and again in 1951. And then, in the heat of the civil rights movement came Annie Harper, a poor Virginia voter, and other Virginia voters with her, challenging the poll tax for the third time, Virginia v. — Harper v. Virginia Board of Elections. By the time they got to the Supreme Court in 1966, the poll tax amendment, the 24th Amendment to the Constitution, had been enacted in 1964, barring poll taxes in federal elections. That case dealing with poll taxes in state elections got before the Supreme Court two years later, and the Supreme Court finally reversed those prior two rulings. So, amendment campaigns and amendment movements are critical for pushing back in the courts, as well. I agree we should push back in the courts, but I don’t think we need to do any one of these things in isolation. They all go together.

AMY GOODMAN: And explain how your organizing is going around the country, how you organize for a constitutional amendment. I mean, the ERA, the Equal Rights Amendment, went down, though there was tremendous momentum for it at a time.

JOHN BONIFAZ: Yeah, well, first of all, the Equal Rights Amendment went down only because there was an artificial seven-year time restriction placed on getting it ratified. Thirty-five states ratified the ERA. Carolyn Maloney, congresswoman from New York, has introduced repeatedly a bill to remove that time restriction, allow the remaining three states to ratify. And we’re not putting any seven-year time restriction on these amendment bills. We understand it can take more—

AMY GOODMAN: Who puts the restriction, the time restriction?

JOHN BONIFAZ: Well, Congress. Congress, when they passed the amendment bill, put the restriction on the ERA. But the ERA very quickly got to 35 states ratifying, and then time ran out, again, on an artificial basis. But the way we’re organizing this is as other organizing movements have done: working with people at the grassroots level, our coalition partners, state-based partners, local organizations, as well as elected officials, leaders in those communities, to pass resolutions at the local level, county level, state level, and really to generate the galvanizing kind of momentum that’s needed to show Congress that they must act. We’re not going to get there necessarily this year or the next year, but we believe that over the next several years there will be enough states on record showing Congress that they must act, while all these other important efforts go forward to reform and defend our democracy.

NERMEEN SHAIKH: And, Mark Schmitt, your comments before we conclude?

MARK SCHMITT: Well, sure. I mean, I think the ERA, the Equal Rights Amendment, is actually a wonderful example of how a constitutional amendment movement, even apart from actually ratifying the constitutional amendment, can kind of galvanize a whole range of efforts, and while that was proceeding, you know, the women’s rights movement, the feminist movement, was making enormous gains both in the workplace, state government, state laws, federal laws, and the culture as a whole, with that as an organizing principle. And I think something like, for example, a constitutional amendment on the right to—guaranteeing the right to vote, would be a similar great organizing tool, and you could do a lot of things kind of in its wake while you waited for that right to be fully established. Those are—those are what I call “yes, we can” amendments. They really give you a lot of room underneath them to organize.

The various amendments here are, for the most part, kind of “no, we can’t” amendments. They send the message: You can’t make the big gains that really matter, until you’ve passed this constitutional amendment, exactly as Congressman Deutch said, which really—which really isn’t the case. So it’s a very misleading message that these 17, or whatever, amendments send, that’s quite different from ERA or poll tax or—

AMY GOODMAN: John, that this could hurt the cause?

JOHN BONIFAZ: We’re not hearing that message. The message we’re hearing from people all around the country is they want to stand up to lift up the promise of American democracy, of government of, for and by the people. That’s the message that’s going across this country.

AMY GOODMAN: Well, John Bonifaz, I want to thank you for being with us, director of Free Speech for People, and Mark Schmitt, senior fellow at the Roosevelt Institute and former editor of The American Prospect.

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