Constitution Daily

Smart conversation from the National Constitution Center

The "Occupy" amendment's gloomy fate

November 29, 2011 by Lyle Denniston


One of the most passionately desired goals of the "Occupy" movement, in its aim to enhance the power of what it calls "the 99 percent" in American society, is to curtail the influence of business corporations in U.S. politics.   A Democratic Representative from Massachusetts, Jim McGovern, is willing to oblige: He has just introduced what he calls the "People's Rights Amendment."  It would end any constitutional recognition of corporations as "persons" or "people" or "citizens."

Occupy Wall Street protesters in Portland, OR (Wikimedia Commons)

"Corporations are not people," the lawmaker said when introducing his House Joint Resolution. "They do not breathe.  They do not have children.  They do not die in war.  They are artificial entities which we the people create and, as such, we govern them, not the other way around."

He called the offering of the measure "a major breakthrough in the growing movement across the country to end corporate personhood and restore democracy to the people."  It was obvious that he was talking at least partly about the "Occupy" movement in major cities and on college campuses.  Some "Occupy" leaders have explicitly called for changing the Constitution to restrict corporate power.

McGovern also stressed that one of the targets of his amendment was the Supreme Court's decision, in January of last year, giving corporations an unlimited constitutional right to spend their money to try to influence U.S. elections -- the decision in Citizens United v. Federal Election Commission.  Many in the "Occupy" movement are deeply troubled by that decision.

The Court did not base that ruling upon a concept of personhood.  Instead, it said that government may not curtail the political free spending rights of anyone on the basis of their identity, corporate or personal.

McGovern's challenge to that decision would appear to face a very dim prospect in the House of Representatives.  That chamber would not even embrace legislation last year that would limit the impact of Citizens United; the chances that McGovern could muster a two-thirds vote to approve his amendment are very close to non-existent, it would seem.  Republicans, in general, are not displeased with the role of corporations in elections, or in other aspects of American life.

The Massachusetts lawmaker's proposal would aim, if ratified, at overturning the Citizens United ruling by declaring that corporations or other "limited liability companies" are "subject to regulation as the people, through their elected State and Federal representatives, deem reasonable and are consistent with the powers of Congress and the States under this Constitution."

It is very likely that those who drafted the measure advised the congressman that the language chosen would do what he intended.  But since that language added the phrase, "are consistent with the powers" that legislative bodies have under the Constitution, and since the Supreme Court has said that those powers do not include the authority to curtail corporate spending in politics, there could be a hurdle of interpretation that his amendment might have to clear.

Even if his amendment cleared Congress with two-thirds approval in each chamber, and cleared three-fourths of the states, its scope would have to be tested -- and likely would be -- by some politically active corporation if a state or Congress moved to take away its clout in political campaigns.

Introduction of proposed new language for the Constitution is done in Congress with great frequency, and usually without an expectation that the ideas would become a part of the basic document.   They have their political effect, though, and that is to please some constituency.   If the McGovern proposal picks up a substantial number of co-sponsors, that could be an early indication of whether the "Occupy" movement is beginning to have an influence in Washington.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy.  He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.

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