Citizens Only

It's very interesting whatching Lawrence Lessig develop a impetus for a constitutional amendment to deal with the obvious shortcomings of the Supreme Court's Citizens United ruling. Here's his recent thinking:

Corporations aren't people" has become the rallying cry for many opponents of the Supreme Court's Citizens United ruling.

The problem is, the decision does not actually assert that corporations are persons. Instead, the Court notes that the First Amendment focuses on "'speech,' not speakers." That is, that the government is constrained in regulating any campaign speech, whether by a citizen, a corporation, or a foreign national.

One need not be xenophobic to be troubled by the idea of foreign influence in American elections. Selecting our leaders is a private decision to be made by us as citizens, and it is perfectly appropriate to limit the disproportionate influence of non-citizens in this process.

To remedy this problem, my proposed constitutional amendment is simple:

Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.

Such an amendment would give Congress the power to limit campaign expenditures by non-citizens -- including both corporations and foreigners -- during a narrow window when Americans are focused on the question of whom to elect to represent and lead them.

Here's what Lessig is getting at:

One need not be xenophobic to be troubled by the idea of foreign influence in American elections. Certainly the Framers were. The point is not that foreigners are evil. It is rather that elections are private. It is we—citizens—who are to select who is to govern us. And it is completely appropriate for us to protect the debate we have about that selection by limiting disproportionate spending by non-citizens.

This insight gives a clue to perhaps the most sensible constitutional response to the Supreme Court’s decision. Not, as an angry gaggle of activists have proposed, through an amendment aimed at denying what Citizens United never asserted—that corporations are persons. But instead, through an amendment that recognizes what no one has ever asserted—that whether or not they are persons, corporations are not United States citizens. And if there is something appropriate to keeping the conversation about who is to govern us to us citizens, there may well be something appropriate in protecting elections against undue influence by non-citizens.

I can certainly get behind the gist of this amendment, and believe it has a really great chance of happening. But I don't agree with Lessig's argument of maintaining a "last 60 days before the election" clause.

First, the whole "last 60 days" framework is from a pre-internet mindset that believed only post Labor Day did campaigning happen (McCain-Feingold CFR was passed in 2002 just as the netroots was beginning to revolutionize politics). That world doesn't exist any longer. Second, there's really not any reason at all to allow for anyone besides a citizen to make political expenditures at any time.

Tags: CFR (all tags)




This may be a great idea in an ivory-tower academic sort of way, but it doesn't really get at the heart of the problem.  While the possibility of foreign influence over elections has been a useful talking point in the wake of <i>Citizens United</i>, I don't think most of us are primarily concerned about the possibility that China will spend billions of dollars to elect a Manchurian Candidate.  I think our primary concern is that the government will become even more bought and paid for by good old American corporations like Exxon, AT&T, and Halliburton.

by Steve M 2010-03-16 06:53PM | 0 recs

I think that's your first take, but I would say to read a bit more carefully. Lessig is being very sly here, and its easy to mistake the intention.

Corporations are not citizens.

by Jerome Armstrong 2010-03-16 10:26PM | 0 recs
RE: non-citizens

I do not think that, without more, you could count on the courts to interpret "non-citizens" in that manner.

by Steve M 2010-03-16 11:20PM | 0 recs
RE: non-citizens

As long as we are amending to prohibit non-citizens, can we also strip corporate personhood as well?    Take away some of the rights of the corporation that the courts have given them over the years.

I do like Lessig's amendment... I agree on the 60 days being pointless... if a compromise was needed then let congress determine the number of days.   However, I'm not sure they can get enough Senators to support something like this as it favors the GOP greatly.  Of course, I will be happy if I am wrong.

by FUJA 2010-03-17 03:29AM | 0 recs
True enough, Steve

But it is a strong idea for those who don't particurlarly mind corporations spending billions for their very own government representatives. In the minds of conservatives, Exxon isn't the enemy, they're the ones everyone should be thankful for.

However, suppose Renault, a company owned in-part by the French government, spends vast amounts of money to get someone into Congress? That's the kind of thing that even Glen Beck couldn't get behind.

Of course, Obama couldn't touch it with a mile-long pole, or conservatives would invent a reason to hate it. It would have to come out as some sort of joint-resolution with absolutely no comment from the White House.

by EvilAsh 2010-03-16 07:33PM | 0 recs
RE: True enough, Steve

iirc, didn't Obama talk about this specifically-- foreign-owned companies- SOTU?  Anyway, it's not really the point; or rather, its too shallow a point. The point is to lay down the law as a marker for non-citizens (which includes corporations anywhere): amendment that recognizes what no one has ever asserted—that whether or not they are persons, corporations are not United States citizens.

by Jerome Armstrong 2010-03-16 10:30PM | 0 recs


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