Occupy Wall Street: Crafting A Constitutional Amendment To Stop The 1%

This is a guest post on Citizens United by Greg Colvin, who is a partner at the firm Adler & Colvin. It was originally published on OurFuture.org.

We've seen the signs and heard the chants: "Abolish Corporate Personhood!"

I'm very sympathetic to the cause of reducing the power of big business corporations to control our government, our economy, our consumer culture, our society, and our lives. We can't have democracy without a major shift of power into the hands of the people.

But would an amendment to remove all rights of corporations from the US Constitution accomplish that? Would there be unintended consequences?

There are two problems with a constitutional amendment that abolishes corporate personhood. One, it does too much, and two, it does too little.

Too much? It would affect not just the big for-profit corporations, but small Mom and Pop corporations and all those non-profit corporations as well. And the rights that would be taken away are not just the rights to free speech via election spending, but also the protections of due process, equal protection, search and seizure, and privacy.

So think about it. Do you want the police to search the offices of the Sierra Club without a warrant? Do you want the NAACP to have no right to protect the privacy of its membership list? Do you want the state to take the property of a community hospital to widen a highway, without just compensation under eminent domain? If Planned Parenthood needs to defend itself in court, should it have no right to counsel, no protection against self-incrimination or double jeopardy?

Too little? It wouldn't touch business entities that are not in the corporate form, such as partnerships, trusts, unincorporated associations, LLCs and LLPs, joint ventures, you name it. The business world is very adept at creating new types of legal entities to escape government regulation and they will, count on it.

Even more critically, abolishing corporate personhood wouldn't touch the wealthy CEOs and other individuals who would continue to enjoy the free speech rights to spend as much as they want on elections, whether they be David Koch, Meg Whitman, Bill Gates, or Michael Bloomberg. Most of the money spent by Art Pope on North Carolina elections appears to be his own, not from the corporate treasury of his Super Dollar stores.

The solution? Shift your frame a bit. Focus on the people. Only people can vote, so only people should finance campaigns. Get all the artificial legal entities out of the political spending arena. Clear the field so that only individual citizens can play. And give Congress and the States the power to set limits on what any one person can spend to get someone elected or defeated.

This is what I proposed here last February:

Amendment XXVIII

Section 1. Only natural persons who are citizens of the United States may make contributions and expenditures to influence the exercise of a citizen's right to vote, although Congress and the States may also institute systems of public financing for election campaigns.

Section 2. Congress and the States shall have concurrent power to implement this article by measures that may set limits on the amounts of each citizen's contributions and expenditures, including a candidate's own spending, and authorize citizens to establish committees to receive, spend, and publicly disclose the sources of contributions and expenditures, and by other appropriate legislation.

Short. Only 95 words.

If this amendment were adopted, and the people had the upper hand in our electoral system, would we still think it necessary to abolish all other corporate constitutional rights? Maybe, maybe not.


The author listed as "PRwatch Editors" is for reports attributable to CMD's editors or guest authors.


I think any restrictions on campaign donations will be circumvented in some way. The only way to avoid this is with an amendment like this (these): 1. A CORPORATION IS NOT A PERSON: “Constitutional rights and protections as provided herein extend only to natural persons, not to business entities, trade groups, corporations, or governments. Persons representing or advocating for the interests of entities and organizations must clearly identify themselves as such, and all such communication must occur in a public forum.” 2. MONEY IS NOT SPEECH, LYING IS NOT PROTECTED: “Constitutionally protected speech is auditory or visual messages that are intended to be an accurate reflection of ideas, facts, or artistic expression. Deceit or intentional misrepresentation, whether put forth by persons, entities, or governments, or their representatives is not protected speech. No form of money or barter is protected speech.” 3. GET MONEY OUT OF POLITICS: “All campaign and campaign related expense for public office, whether for federal office or elected office in any of the several states, shall be paid from public funds fairly distributed to viable candidates. No candidate or campaign shall accept donations or spend personal funds for or on behalf of his or her campaign. Actual expenses for post election ceremonies and celebrations of successful candidates may be paid from donations or personal funds. Excess funds from all such post election activities, and from the campaigns, both federal and state, shall be applied immediately toward the national debt.” [Comment: This is the only way to keep people from circumventing restrictions on donations. Campaigning would be through public debates and volunteers. Restrictions on personal funds keeps the wealthy from being the only viable candidates.]

Another idea that would help get money out of politics is to mandate free media time on television and radio. This could be in the form of debates--not the deceptive ads that dominate campaigns today. Or each viable (however defined) canidate could have a block of uninterrupted time to say whatever he or she wants. Smart, fair people could work out the details. The point is, a lot of money in political campaigns is spent on political ads and shouldn't have to be.

What we're really talking about here are rich and powerful organizations (predominately corporations, although that could change) that use the veil of personhood, and its attendant civil rights, to protect and expand their business (Power/control and profit, including ideological influence). This isn't just about election spending, it's about super-civil (human) rights that have been granted to these organizations; Rights which supercede our Constitution. It should be a no-brainer that "people" and "persons" are NATURAL people or persons, but obviously it's not, so it needs to be defined as such in our constitution. If organizations need certain protections (not exceeding what "people" get), then those must be granted through legislation, not the constitution.