Proposed Amendments to Overcome Citizens United

July 19, 2016

This is the third in a series on Money in Politics. Last time we discussed the difficulty of getting the Court to overrule Citizens United. Because of that, several constitutional amendments have been proposed as joint resolutions and introduced in Congress in order to undo Citizens United and overrule the idea that a corporation is a legal person. After studying them, however, it became clear they have been so sloppily drafted that no one could tell you what they would do.

None that I’ve seen addresses the associations we join. Political, civil liberties, civil rights, and environmental organizations, and professional associations, all take stands on candidates or political issues. The ACLU went to court years ago to protect its ability to take out an ad over the impeachment of President Nixon.[1]

All except the smallest are incorporated and are protected by the right of association. The First Amendment protects speech, press, assembly and petition. In combination, that’s what our associations do to influence public attitudes about major issues. They incorporate to outlast their founders, use the courts, open bank accounts, organize membership and leadership, seek tax-exempt status and protect members from liability for any mistakes the organizations make.

Those associations matter. The lasting impact that people like Rosa Parks and Martin Luther King had on the Civil Rights Movement depended on the organizations that did the advance work, and drove home the meaning of what they and other great leaders of the Movement did. That’s true of most successful political movements. Yet the proposed Amendments stop after denying that corporations have constitutional rights and authorizing legislatures to regulate them.

A literalist could read the Amendments as superseding and repealing all previous protections for the organizations we rely on to reform politics, the environment, civil rights and just about everything we care about. Nothing in the proposals protects them.

Sometimes courts hang on to interpretations of older text and neuter newer language, as the Supreme Court has with language in the amendments passed in the aftermath of the Civil War. In the absence of any language about associations, it is impossible to say what the courts would do to the proposals regarding associations.

One proposal denies that it limits the people’s rights, but it is attached to text which limits what the Court defines as part of the people’s First Amendment rights. The meaning of that exception is mysterious, just authorizing courts to figure it out.

Only two amendments mention a free press. They merely say they “shall [not] be construed to alter the freedom of the press.” That’s nice but the exceptions swallow the proposals because much of political campaigns is in or can be done by the press. Whoever controls the distinction controls the result, whether authorities can squelch the press or the press becomes the next form of improper power.

Corporations often set up subsidiaries for otherwise regulated functions, such as associations or media companies, like what Murdock did with Fox. Some media companies are owned by conglomerates. Many associations set up separate organizations for tax purposes. The NAACP set up Thurgood Marshall’s organization around 1940 to separate its legal work from other organizational work. Lawyers fashion ways to live with rules. So what would a press exception do?

Nor should media companies and political associations have a monopoly on political speech. The law should be neutral and should not protect the speech of some while shackling the speech of others.

Whatever you think of the Roberts Court, and I’m no fan, these are serious issues and no proposal addresses them. Instead they provide feel good language covering sloppy and dangerous clauses.

— This commentary was broadcast on WAMC Northeast Report, July 19, 2016.

[1] Amer. Civil Liberties Union, Inc. v. Jennings, 366 F. Supp. 1041 (D.D.C. 1973).


Dr. King’s Message of Love

January 20, 2015

Yesterday we celebrated Martin Luther King Day. We are still much too far from a post-racial society. For the big victories of the Civil Rights Movement, we think of Brown v. Board, and the Civil Rights Act of 1964, which the Rehnquist Court did its best to chip away, and the Voting Rights Act of 1965 which the Roberts Court is doing its best to tear up. There was another victory that I’d like to talk about, just a few years after Martin Luther King shared his dream at the Lincoln Memorial.

It often seems like a postscript to Dr. King’s legacy but was actually at its very core. When the NAACP planned its attack on school segregation, they started with graduate schools, racking up a string of victories so that any other decision in Brown would have flatly violated the teaching of a whole group of recent precedents abandoning separation in law school, medical school, graduate school in one state after another. But until Brown they didn’t touch grade school. They had concluded that grade school would be the most inflammatory and most difficult because of southern fear of what they called miscegenation, marriage between whites and Blacks. There was a sense in which worrying about marriage of kids in elementary school rather than adults in graduate school seemed backwards. But they understood the fear and went with it.

Fear of intermarriage was a very big deal with reason. Sociologists have been finding that one of the main ways Americans have been putting stereotypes and prejudices behind them has been intermarriage, not just Blacks and whites, but Jews and Christians, whites and Asians, different white ethnic groups, and now the marriage of gay or lesbian children of straight families, all of us to some degree have been marrying out of our ancestral groups, introducing our families and producing children who celebrate all sides of their heritage. Marriage and intermarriage matter.

Rabbis don’t like Jews to intermarry – they’re afraid to lose another Jew to the assimilated culture. When Jeanette and I married, it was hard to find a rabbi who’d marry us. There are a lot of mixed families in our Temple, creating the loving, open community we love.

In the 1950s Mildred Delores Jeter grew up down the road from Richard Loving in rural Virginia. Richard was a white bricklayer; Mildred a young Black girl. In that part of the state, Blacks and whites often socialized, but didn’t marry. Mildred and Richard weren’t thinking of Dr. King or making a racial statement. They just fell in love, married and wanted to raise a family together. For that they were arrested, jailed, convicted and kicked out of Virginia. They were together until, tragically, Richard was killed in a traffic accident nearly twenty years later.

The year Martin Luther King shared his great dream with us, Mildred wrote to U.S. Attorney General Robert Kennedy about their inability to visit family and friends in Virginia. Kennedy sent them to the ACLU whose lawyers brought their case to the U.S. Supreme Court. In 1967 the Warren Court gave us the historic decision of Loving v. Virginia, one of its great decisions, establishing the right to marry, and marry without discrimination.

That part of the Civil Rights Movement seems resilient and lasting – we keep meeting, befriending and learning to love each other. The world changes, though slowly. It has always seemed appropriate to me that they were Mildred and Richard Loving. Dr. King’s was a message of love; love needs to run this world.

— This commentary was broadcast on WAMC Northeast Report, January 20, 2014.


Mandela by Comparison

December 10, 2013

 I want to explore an important comparison that has not been addressed about Nelson Mandela.

There have been many great twentieth century leaders. Some like Mahatma Gandhi, Martin Luther King and Aung San Suu Kyi never became presidents or prime ministers. But three did – Mandela in South Africa, Jawaharlal Nehru in India and Franklin Roosevelt here. Nehru and Roosevelt held onto power until they died in office.

In Roosevelt’s case I’m glad he did. Read the rest of this entry »


The White House Butler

September 3, 2013

My wife and I went to see The Butler Saturday evening. There were important differences between the lives of the actual Butler, Eugene Allen, who served eight presidents, and Cecil Gaines, the butler in the film. But those differences actually got to larger truths it is worth thinking about.

In the film Cecil learns from the rape of his mother and the murder of his father what he has to do to survive in the white world. He creates a safe place for his family and is distraught when his son puts body and soul at risk in the Civil Rights Movement. That didn’t happen to Eugene Allen but it did happen to hordes of African-Americans in the South and many elsewhere. The demonstrators, trained to be peaceful and nonviolent, to take it without giving it back, were met with bombings, beatings, murders and jail. And their families were in anguish. Read the rest of this entry »


Race & Economic Justice, for Martin Luther King

January 17, 2012

Yesterday was Martin Luther King day. That actually led me to think some more about the Occupy Movement and their slogan, the 99%.

Movements for economic justice have repeatedly had their backs broken over the race issue. In the 19th century, the surging Populist Movement tried to ignore race and bring poor whites and blacks together. But it was destroyed in the South over race. We limped into the 20th century without major reforms although the Progressive Movement that brought Woodrow Wilson to the White House enacted pieces of the Populist creed and the Roosevelt Administration enacted more.

But the Roosevelt Administration also steered clear of race in ways that would have an enormous impact on America. Read the rest of this entry »


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