How would Bernie Sanders's constitutional amendment overturning Citizens United actually work?

It was described and advocated in this thread from December 2011, and the full text of the proposed amendment is here.

This is something my mom strongly advocates, as do all my friends and basically almost all liberal and even most moderate Democrats. I am a staunch Democrat myself, but it doesn’t make a lick of sense to me. I honestly don’t think this has been thought through, from a legal, logical, or practical angle. It’s just a knee-jerk reaction disdaining and despairing about the billionaires and corporations funding “super-PACs” and so on. Which is understandable, but…well, it probably best illustrates my point to pose a few questions, which the proponents of this amendment can take a stab at:

[li]What happens to FOX News and MSNBC? Those are corporate-owned media entities that inveigle on behalf of Republicans and Democrats, respectively. Do they have to shutter their doors and go dark?[/li][li]How about documentarians like Michael Moore? How can investors or movie studios produce his films without running afoul of this law?[/li][li]Let’s say I’m a rich guy. I clearly can’t give to a super PAC. I guess I also can’t buy ads that call for one candidate to be elected, or another one opposed. Can I also not print up a million T-shirts with a candidate’s name on them and give them out for free? What about running ads calling for a higher minimum wage, single payer health insurance, or protection of reproductive rights? If I’m a celebrity, am I allowed to give speeches supporting a candidate? Oh, but that doesn’t involve spending money. But what if I cater the event, and bus people in?[/li][/ol]

The anti-CU lobby has great slogans: “money is not speech” and “corporations aren’t people”. But I have yet to hear a satisfying explanation as to how this would actually work in practice while *preserving *the right to free speech. I mean, since the beginning of our democracy, rich people have owned printing presses, which allowed them to promulgate their political views far more widely than a pauper with a soapbox could. But the freedom of the press was not just preserved as an obvious corollary of freedom of speech: it was right there in the wording of the First Amendment! We are going to nuke the First Amendment now?!? :dubious:

It’s hard for me to see how, under such an amendment, you could even have op-ed columns. Only the most bland, mealymouthed pablum would pass muster.

Before Citizens United opened the door to super PACs, we had Fox news and MSNBC and Roger Moore, and they were all able to present their views as fully as they wanted to, right?

So, let’s just go back to that. I don’t know if Sander’s amendment would do that, or if it might over-reach or have other unintended consequences, but it’s not like he’s trying to take us into some outlandish legal situation that’s never been tried. It was how this country worked for decades.

There is a clause in there that extends freedom of the press to corporations. Did you not see that?

I say nuke the First Amendment and bring back the Equal Time rule. And that’s the thing. We didn’t have to get rid of the First Amendment to have Equal Time or the Fairness Doctrine. But since the absolutists took over, now we do.

That doesn’t mean that Congress has to ban political speech, just that it can put conditions on publishers.

It also doesn’t mean this proposed amendment is well-written. It looks like useless garbage to me.

ETA: Well, maybe not useless so much as confused. “Corporations aren’t people,” is a campaign line, not useful law.

It’s not an election cycle without blithely chucking around proposals that require an amendment. At least this one if specific that they want an amendment versus the immigration/14th amendment one.

I’m not sure why it takes an amendment in this case since the main chunks of this can be corrected in law. Corporations as people is a matter of law - 1 U.S. Code § 1 “the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” If we can’t get support to change the law how is passing an amendment realistic?

I’d also worry that there might be other side effects in areas outside campaign finance. How much whack-a-mole with code will we need to play to reinsert law applicability to corporations?

I would prefer to simply see corporations et. al. legally classified as “corporations”, a distinct entity all it’s own, with certain rights and responsibilities, but they are most definitely not “people”.

So under this amendment, corporations would no longer have a constitutional right to equal protection of the law and due process. Congress could write statutes to provide those privileges, but they would not be constitutionally protected.

I’m not sure what the consequence of this change would be - would the government be able to seize property owned by a corporation without some judicial process? - but it certainly seems like a big deal.

And I’m totally in favor of limiting the role of corporations in the electoral process, so long as freedom of the press is protected.

Simply have an amendment that overturns the Buckley decision of 1976. That’s the Supreme Court decision that said donating money to political campaigns is a form of speech and cannot be restricted.

I think most reasonable people would concede we weren’t living in a dictatorship for the first two centuries of our country’s existence and we had freedom of speech and freedom of the press before 1976. So all we’d be doing is turning the clock back to where things were.

People, newspapers, and television networks would still be free to say or write anything they want. The only change would be that Congress would once again have the power to regulate campaign contributions - as it had for two hundred years without a problem.

Would do nothing about super-PACs.

Or rich people buying ads. You are restricting speech if they can buy an ad expressing the opinion that Lucky Charms are magically delicious, but not one that says the country needs a woman like Hillary Clinton in the Oval Office.

I don’t think it interferes with anyone’s freedom of speech if there was a law requiring all campaign donations to identify the donor. I see nothing in the First Amendment guaranteeing a right to anonymous speech.

Corporations have been people since like 1200 at least in English common law. Removing corporate personhood would be a remarkably stupid idea and I have to think that anybody who advocates it hasn’t thought out the implications. All a person is is something that has an independent identity in law…something that can enter into contracts, can sue and be sued. You take that away, everything becomes infinitely more difficult, for a bunch of reasons; liability, death of an owner, what have you.

I’m fine with that. But those who oppose Citizens United want to go much further: they want to “take the obscene levels of money out of politics”. I am challenging such people to explain to me how this can be done in a practical sense, without restricting rich people’s freedom of expression, and I’m hearing crickets in response.

I don’t think you’re understanding the problem – contributions to candidates are disclosed. It’s contributions to some political action committees that can be anonymous. Political action committees are prohibited from coordinating with the candidate, but they can run as many ads as they wish. Contributions to those organizations are not campaign contributions, no more than, say, paying your NRA dues or union dues are.

“Persons”, not “people”. And they don’t have all the rights and responsibilities that you and I have now. Which ones do you wish them to retain, and which ones do you want to remove?

I don’t see a problem with requiring disclosure of NRA and union membership either. If these groups are using public resources like the airwaves and the Internet to advertise, disclosure should be required (and the same goes if the content of their advertising is not political, for that matter). But actually prohibiting them from running ads with political content is another matter, and a Pandora’s Box.

You can do all those things - you just can’t join together with other people to do them.

If I want to spend $100K to promote nuclear power, I can. If I have nine friends and we all want to spend $10K apiece to promote it, I can’t.

I note that Sanders wants to allow unions to do what corporations shouldn’t be able to do. How he is going to maintain the distinction between a union, which is presumably not-for-profit, and a trade organization working on behalf of some industry, I don’t know.


I don’t think this is unsolvable. The IRS code as it stands already establishes a great variety of types of non-profits, each with limitations on what they can and cannot do. If a trade organization were to form, it might be required to be an imaginary 666-k, which would bar it from contributions to campaigns and PACS, while unions could be an imaginary 666-a, which allows those.

I’ve been struggling to believe that such an amendment can be workable - the unintended consequences will be vast and unthought of (look at the blowback from this seemingly innocuous case), but IMO most of the ones discussed here have workarounds.

I hadn’t thought about this – lots of people make fun of the idea that campaigns are legally prohibited from coordinating with PACs.

Just how on earth would anyone police private individuals engaging in political speech without coordination with other individuals? Wow, talk about an impossible task.

As far as the amendment goes, it doesn’t have to include any details, all it has to do is open the door. It will probably say something like “Whereas the state has a compelling interest in controlling the corrupting influence of money in politics, laws regulating the spending of money towards the promotion or denunciation of a particular candidate or party are constitutional.”

This in and of itself won’t restrict anything, it will just allow common sense laws to be passed. Even with this amendment, any congressman who tries to pass a law that shuts down Fox news, is going to fail. But you might be able to pass something that reduces the current plutocracy in which we live.

Still, given that many powerful people like the current plutocracy, even with massive popular support the chances of such an amendment passing are non-existent.
ETA: looking at the amendment as written I think section 3 goes to far and should be eliminated. We don’t need to constitutionally prohibit corporate donations with an axe for all time, when such limits can be made legislatively with more care under section 4.