One Year Later, Citizens United Decision Prompts Calls for a Constitutional Amendment on Corporations

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This guest post comes from lawyer and writer Shauna Curphey, who is volunteering for a year in ERI’s Thailand office.

 


Last month marked the first anniversary of the U.S. Supreme Court’s decision in Citizens United v. Federal Elections Commission, which struck down a federal law limiting corporate and union spending in elections. In reaching its decision, the Court overruled its 1990 decision, which held that the government could restrict corporate campaign spending to prevent corporations from obtaining an unfair advantage in the political marketplace. In short, in Citizens United, the Court held that corporations have the same First Amendment rights as individuals to engage in political speech.

 

In the year since the Citizens United decision, efforts have sprung up across the country to call for a constitutional amendment to limit corporate rights. Most recently, Rep. Donna Edwards of Maryland introduced a constitutional amendment that would explicitly allow Congress and the states to regulate corporate campaign spending (see video below). Other efforts, including a recent resolution introduced in the Vermont legislature, call for a constitutional amendment that provides that corporations are not persons under the law and thus would strip corporations of rights, such as free speech, that individuals enjoy.

 

Although amending the Constitution is no easy task – Congress must first pass a proposal that is then ratified by three-fourths of the state legislatures – the amendment efforts will, at the least, nourish a broader conversation about corporate hegemony. People are listening; in a recent national poll, 80 percent of respondents said they opposed allowing unfettered corporate spending on political campaigns.

The proposed amendments might also spark a debate on corporate accountability. An amendment that states corporations are not persons under the law, for example, might affect corporate liability in certain areas. (See, for example, ERI’s Legal Director Marco Simon’s recent post on the Second Circuit’s decision in Kiobel, which held that corporations are not liable for human rights abuses under the Alien Tort Claims Act.) Efforts to eliminate corporate personhood, however well intentioned, may have negative consequences, not only in the area of corporate liability, but also for non-profit and media corporations.

For now, the proposed amendments serve as a reminder that voters have the ultimate power to control corporations, if we choose to use it.

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