Why We Need Bernie Sanders to Change His Amendment Proposal

Senator Bernie Sanders (VT-I)
April 15, 2012
Nicole Gaudiano

While we have great respect for Senator Sanders, his amendment proposal is flawed. Learn more about the different amendment proposals here. Check out Move to Amend's amendment proposal here.

Sanders proposal on 'corporate personhood' faces early challenges

WASHINGTON — Sen. Bernie Sanders is among congressional lawmakers leading the call for a constitutional amendment to end corporate spending in elections. 

But his ideas on “corporate personhood,” the treatment of corporations as people under the law, are drawing criticism from some amendment advocates. They say his approach unfairly favors unions and nonprofit corporations and might clash with the wishes of some Vermonters.

The Vermont independent’s amendment resolution — and an identical House resolution co-sponsored by Rep. Peter Welch, D-Vt. — aims to overturn the Supreme Court’s controversial 2010 ruling in Citizens United v. the Federal Election Commission that gave corporations and unions the same First Amendment rights as people to spend unlimited money on campaign ads.

Introduced in December, the resolution would strip for-profit corporations and corporate interest groups of claims to constitutional rights, ban them from spending money in elections and reaffirm that Congress and the states can regulate and limit all campaign spending.

“The goal right now is to make sure that Wall Street and coal companies and oil companies and other for-profit corporations cannot go into their billion-dollar treasuries, take that money out and spend as much money as they want,” Sanders said.

But when it comes to the constitutional rights of certain nonprofit corporations, including political action committees and unions, Sanders’ resolution is silent.

That surprised some people in Vermont, where 65 cities and towns have passed resolutions calling for a constitutional amendment specifying that corporations aren’t people, said state Sen. Virginia Lyons, a leader in the movement.

Even before town meetings in March, she said, some Vermonters said they would oppose excluding any corporations under such an amendment.

She and others argue that under Sanders’ proposal, political action committees for unions could do more to influence elections than other PACs.

“People want a pretty clean separation from what we’ve had,” said Lyons, a Democrat. “We don’t want to show favoritism for one side or another. It’s really about leveling the playing field.”

Lyons authored a resolution that urges Congress to pass a constitutional amendment saying money isn’t speech, and corporations aren’t people. The proposal passed the state Senate on Wednesday and is awaiting approval in the state House. Lyons said it’s intended to cover all corporations, including nonprofits.

Sanders said he isn’t suggesting nonprofits and unions should be allowed to spend unlimited money on elections. If his amendment succeeds in overturning the Citizens United ruling, he said, spending by nonprofits and unions still would be limited by the Bipartisan Campaign Reform Act of 2002, known as McCain-Feingold.

“There should be limits as to how much any and every entity should be able to spend,” he said.

Sanders and other lawmakers will host an amendment summit in Washington this Wednesday.

“The goal of all of us is to work together to overturn this disastrous decision,” he said. “It’s going to be a monumental task, so splitting hairs is not what interests me. It’s rallying people around a common purpose.”

Sanders’ proposal lends itself to different interpretations.

Before the Citizens United ruling, Congress and the states had authority to ban — not simply limit — campaign expenditures by for-profit and nonprofit corporations, said John Bonifaz, director of Free Speech for People, a nonprofit promoting a constitutional amendment that would apply to both nonprofit and for-profit corporations.

While Sanders’ amendment would re-establish that authority over for-profit corporations, it would allow lawmakers only to limit expenditures for non-profits, he said. If Congress tried to ban such spending by nonprofits, those groups could claim a constitutional right to make such expenditures, he said.

“Our point is that, whether you’re a for-profit corporation or a nonprofit corporation, you are not an individual human being with free-speech rights,” he said. “The Constitution was not designed to protect corporations.”

Robert Weissman, president of the advocacy group Public Citizen, however, said Sanders’ amendment would give Congress and the states “full authority” to regulate campaign spending — without restrictions.

Nonprofit organizations, just like for-profit corporations, shouldn’t have a constitutionally protected right to “buy elections,” said Weissman, who supports the Sanders amendment.

But because nonprofit corporations represent people organized to express a point of view, not to pursue business interests, they should have constitutional rights to speak out on matters of public import and to be protected against unreasonable search and seizures and government taking without just compensation, he said.

“The idea that nonprofit associations, whether they’re Public Citizen or the NRA, are organizations coming together for political speech — that’s what the First Amendment is there to protect,” he said. “Corporations for profit are not organized for coming together for expressive purposes. They’re organized for business.”

Some critics note that Sanders’ amendment would even allow Citizens United, the plaintiff in the Supreme Court ruling, to claim constitutional rights. The nonprofit conservative group accepted corporate money with the aim of airing a film attacking then-Democratic Sen. Hillary Rodham Clinton during the 2008 presidential election.

“We appreciate Bernie Sanders for many things, but we think that he has created an exemption that is intellectually dishonest,” said David Cobb, of Move to Amend, a grassroots group that has worked on local campaigns in Vermont and elsewhere. “It’s a political non-starter, because principled conservatives will not support it, and it creates a huge loophole for nonprofits like Citizens United.”

A Sanders aide said the proposed amendment’s ban on for-profit corporate election spending would prevent nonprofits such as Citizens United from taking corporate money to finance political ads. That means such nonprofits would be limited to spending money donated by individuals — not by for-profit corporations — who support the organization’s mission.

Bonifaz at Free Speech for People disagreed, saying nothing in the amendment would bar nonprofits from taking corporate donations.

In fact, he said, the amendment could lead to for-profit corporations funneling their dollars to nonprofits for campaign spending, undermining the intent of the amendment.

“You would see a significant rise in the nonprofit sector to effectively marshal corporate treasury dollars into our elections,” he said.

Sanders’ resolution has one Senate co-sponsor: Sen. Mark Begich, D-Alaska. The House version has 44 co-sponsors.

It is among several amendment proposals in Congress that will be considered later this session by the Senate Judiciary Committee’s subcommittee on the Constitution, according to Sen. Patrick Leahy’s office. Leahy, D-Vt., who chairs the full committee, has not signed onto a resolution but supports efforts to reverse the Citizens United ruling, his spokesman said.

Each proposal is at the beginning of a long road. Passing a constitutional amendment requires passage by two-thirds of Congress and ratification by at least 38 states. That seems more improbable, given that many Republicans oppose limitations on campaign spending.

“I think that all of these amendment proposals serve an important purpose in terms of keeping the heat on the Supreme Court for its wildly unpopular Citizens United decision,” said Rick Hasen, a professor of law and political science at the University of California-Irvine School of Law. “But I don’t think we should take them seriously as actual legislation, because their chances of passing seem smaller than winning the next mega-millions lottery.”

But grassroots groups say momentum is building at the state and local levels. They are organizing efforts in hundreds of cities to pass resolutions calling for an amendment.

This month, 11 state attorneys general — including Vermont Attorney General William Sorrell — wrote congressional leaders calling for an amendment to reverse Citizens United.

At this early stage, the Peace and Justice Center in Vermont supports an amendment to overturn Citizens United but is unconcerned about the exact language, said Gabriela Ochoa Brenneman, the center’s program director and an organizer with the Vermonters Say Corporations Are Not People coalition.

Brenneman recalled that at meetings she helped organize, people said they’re just tired of the excessive influence of money in politics.

“We are supporting change,” she said. “We want transparency. We want equal access to political speech and I think this is what Vermonters want.”

Contact Nicole Gaudiano at ngaudiano [at] gannett.com. Follow her on Twitter at www.twitter.com/ngaudiano.