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:
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.