Uncommon Sense

January 21, 2012

The System Ain’t Broke; It’s Fixed!

Filed under: Politics — Steve Ruis @ 11:19 am
Tags: , , , ,

I can’t claim originality for the title of this blog entry. It seems that political discourse is a creative driving force, at least for sloganeers. (My current other favorite is: “I’ll believe a corporation is a person when Texas executes one!”)

On the two year anniversary of the Supreme Court’s Citizens United decision we are now seeing how it is playing out and even conservatives are questioning its wisdom. I feel that it is time to reconsider this decision.

Ignoring for the time being that SCOTUS picked this fight by asking those bringing the suit to ask them to address the bigger question of corporate free speech, it has been a long standing power of Congress to regulate elections, e.g.:

U.S. Constitution / Article 1, Section 4
1: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Plus a long history of Supreme Court decisions have backed up Congress’s ability to do so, for example:

The U.S. Supreme Court decision Buckley v. Valeo (1976) held that limitations on donations to candidates were constitutional (because of the compelling state interest in preventing corruption or the appearance of corruption), but limitations on the amount campaigns could spend (spending limits or caps) were an unconstitutional abridgment of free speech under the First Amendment.

So, we end with, two-years ago today, SCOTUS voiding nearly a century of settled law and declaring corporations “persons” for political reasons when they had been declared persons only for business reasons prior to that point. Of course, conservative icon Antonin Scalia voted in the majority on this opinion. Scalia describes himself as an originalist, which means he claims to interpret the Constitution as it would have been understood when it was adopted. When the Constitution was adopted, in 1789, modern corporations weren’t anywhere on the horizon. In fact, all of the Founding Fathers and every participant in the Revolutionary War was dead by the time the modern corporation was first conceived, albeit in a weak and feeble state at that time.

So, how does Scalia defend his decision? He does so by rejecting the argument made in a dissenting position that the Founding Fathers only thought of free speech in terms of citizens, not organizations. So, the “originalist” Justice basically stated, the Founding Fathers and citizen’s general understanding of the Constitution don’t count . . . because he says so.

This court has picked any number of fights that previous courts have generally shunned for the purpose, apparently, of empowering corporations as that is how they have ruled in every such case.

There is only one solution to this bias in the Court—amend the Constitution. Here is the rule that applies:

U.S. Constitution / Article 5 (in part)
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.

Since there is a snowball’s chance in Hell that Congress will do such a thing, I suggest we try something novel. In at least two-thirds of the state legislatures, pass a Constitutional amendment bill (something like “Corporations are not people” but more careful considered to have the needed effect of curbing corporate political power). Then Congress would have a decision to make. Since it takes only two-thirds of the state legislatures to call for a Constitutional Convention, a zoo all would probably like to avoid, the only other option would be to pass the appropriate bills triggering the ratification process, ratification being almost a foregone conclusion.

Of course, Congress would have the option of invoking it’s favorite strategy, doing nothing, so political pressure would have to be applied continuously throughout (those reluctant to do the right thing being branded corporate lackeys, etc.).

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