The Ubiquitous Corporations Targeted by The People’s Rights Amendment

The stupid idea de jour is brought to us today in the form of the People’s Rights Amendment, courtesy of Congressman Jim McGovern.  Catering to the wacky paranoia of the Occupy movement and (less likely) his Massachusetts constituents, McGovern seeks to deny constitutional rights to any corporation, for profit, nonprofit, tribal, foreign, sole proprietorship – you name it. Any entity organized under a state incorporation law would have no constitutional protection against the power of government. George Will had an excellent op-ed on McGovern’s effort a day or so ago where he says the intent is to, “vastly expand government’s power to write laws regulating, rationing or even proscribing speech in elections that determine the composition of the legislature and the rest of the government. McGovern’s proposal vindicates those who say most campaign finance ‘reforms’ are incompatible with the First Amendment.”

This proposal has very real and potentially painful consequences for individuals of all political persuasions.  To show that impact, here’s an illustration based on a real case.

A very well-known civil rights membership group, incorporated in New York, had been operating in a number of other states for many years.  In one state, which we will call “Balalama,” it has been active for almost 50 years. Political winds in Balalama had reached gale force, and the state decided to shut the group down.

Because the group was an out of state corporation, Balalama went after the fact that it had not complied with a list of steps necessary to register as a foreign corporation doing business in Balalama.  Many of these demands were seemingly innocuous – such as designation of an agent for service of process.  One of the demands Balalama made was that the group produce a list of all its members.

Now, nobody would question the power of a state to enforce reasonable rules to identify and regulate foreign corporations.  But Balalama didn’t really want to do that.  It wanted to either jail the activists, or drive them from the state.  The groups members, if revealed, would be in danger, because Balalama wasn’t especially interested in protecting them from mob reaction.  The popular view in Balalama was toxic to the survival of this group.

Balalama lost in court eventually, because the Supreme Court saw through its pretextual imposition of its foreign corporation law.  It lost because the membership corporation possessed due process rights guaranteed by the constitution.  Had the McGovern amendment been in place, Balalama would have operated under no such constraint, because the incorporated group would not be entitled to any rights.  Balalama, given its power to regulate corporations, could have required the group to produce any information Balalama wanted, could exact special fees from it — could operate pretty much with a free hand.

McGovern has aimed his rhetorical fire at multinationals and large publicly traded companies.  But he has overlooked that corporations exist in every sphere of our society.  Your kid’s soccer league, your church, your Congressman’s campaign committee are all corporations.  And the amendment would deny not just the right to speak independently in campaigns (the right preserved in Citizens United and the aspect of this issue that has some people agitated) but other First Amendment rights, Fourth Amendment rights against unreasonable searches, and Fifth Amendment rights that require compensation for takings.

McGovern’s response to that observation could be that nothing in his amendment prevents real live individuals from continuing to engage in protected activities. But by denying protection to the vehicle by which individuals organize, they become less effective.  This amendment, which pretends to enhance the power of “the people” does nothing of the kind.

We wait with eager anticipation to hear McGovern explain to the hard-working people of the Third District exactly why it would be a good idea to allow the government to seize the assets and property of their small business, or their church; or put their preferred advocacy organizations out of business.

Comments

  1. Richard Lewis says:

    Richard Lewis
    502-403-5534

    The so called “press exemption” 2 USC 431 (9) (B) (i) was passed in 1974.

    This “press exemption” ignores the definition of “free press” which our federal constitutrion left to the states and the states defined as the “Right of the People” to use a device a “printing press!

    This so called “press exemption” presumes that an “Inalienable Right”can be changed into a “privilege” and that this “can be lawfully accomplished” by passing an “ordinary law” without public knowledge or conscent!

    The “press exemption” has replaced a “free press” which was understood to be the “Right of The People” to use a device “printing press” with a “state aprroved press”!

    Free press” has been redefined as the “right of industry”, newspapers, broadcast stations and magazine publishers are exempted from the definition of expenditure, contribution and contribution!

    Our “free press” Rights could be regained by amending 2 USC 431 (9) (B) (i) to include
    every “citizen or group of citizens of these United States who pool and spend their money to pay the cost of communicating political ideas, endorsements and opinions!

    I am the chairman of the “Free Speech” committee of Take Back Kentucky.

    Kentucky does not have a “press” or “media” exemption.

    I filed a complaint with the Kentucky Registry of Election Finance in 1999 that clarified

    Kentucky does not have a “press” or “media” exemption.

    Since 2000 Kentucky lawmakers have made four attempts to pass legislation that would

    create a “press” or “media” exemption and each attempt has failed because of strong public

    opposition.

    A “press” or “media” exemption is a “legal artifice” that attempts to create a distinction

    between the speech and press “Rights” of “natural persons” and “legal persons” taking the

    form of newspaper businesses, broadcast businesses, periodic publications and

    magazines.

    When a state is unable to pass a “press” or “media” exemption that state has no legal basis

    for regulating the speech and press “Rights” of natural persons as if their “Rights” were

    inferior to the “Rights” of “legal persons”.

    Despite these facts the Kentucky Registry of Election Finance continues to regulate the

    speech and press “Rights” of “natural persons” residing in Kentucky as if a “press” or “media”

    exemption existed in Kentucky law.

    This is a “News Story” that should be exposed and we need a lawyer that is willing to take

    this challenge to the Kentucky Supreme Court!

The Center for Competitive Politics is now the Institute for Free Speech.