Amendment could strip press freedom in effort to curb corporate political spending

Steven Nelson | Associate Editor

Twenty-five congressmen are co-sponsoring a resolution to amend the U.S. Constitution to block the rights it protects from applying to corporations, a change that could also strip newspapers of First Amendment protections.

The proposed People’s Rights Amendment is a reaction to the 2010 Citizens United v. Federal Election Commission Supreme Court decision, which decreed that restrictions on corporate political spending were unconstitutional.

Although she isn’t one of the 25 co-sponsors, House Minority Leader Nancy Pelosi announced Thursday her support for amending the Constitution to prevent corporations from “oozing slime into the political system.”

UCLA law professor Eugene Volokh warned Friday that the amendment would have far-reaching and unintended consequences. Analyzing the proposal’s language, Volokh wrote that it would give the government power to “ban the speech of nonmedia business corporations [and] ban publications by corporate-run newspapers and magazines.”

The text of the amendment “makes clear that the preservation of the ‘freedom of the press’ applies only to ‘the people,’” wrote Volokh, and “expressly provides that corporations aren’t protected as ‘the people.’”

Boston College law professor Kent Greenfield agrees. In a January op-ed he wrote, “If The New York Times had no constitutional rights of its own, it could be prohibited from printing or distributing its newspapers. Its website could be shut off. Its printing presses could be seized. It could be prohibited from paying employees. The fact that individual reporters would still have rights to distribute homemade handbills or orate from a soapbox would mean little.”

Greenfield told The Daily Caller that eliminating protections for non-human entities “would be dangerous, regardless of whether you are a progressive or a conservative. Everyone organizes themselves in groups,” he explained.

Massachusetts Democratic Rep. Jim McGovern, a sponsor, said the amendment “would make clear that all corporate entities — for-profit and non-profit alike — are not people with constitutional rights.”

McGovern spokesman Michael Mershon told TheDC that since the bill was introduced in November, there has been “no real legislative movement, nor do we expect any in the current Congress.”

With Pelosi’s support for a constitutional amendment, however, the bill might advance if Democrats regain control of the House. The resolution has one Republican co-sponsor — North Carolina Rep. Walter Jones. A spokesman for Jones, a libertarian-leaning member, was unable to immediately comment on his support.

Asked about objections to the amendment, Mershon directed TheDC to an article by Ben Clements, a former adviser to Massachusetts Gov. Deval Patrick. “That kind of critique has been floating around,” said Mershon. “We would point people to Ben’s post.”

Clements argues that the proposal “does not distinguish between an individual ‘natural person’ and groups of ‘natural persons.’” Therefore, he writes, “All that the People’s Rights Amendment does not protect are contrived constitutional rights of artificial government-created entities.”

Greenfield told TheDC that amendment supporters point to its affirmation of press freedom and say, “if The New York Times doesn’t have press or speech rights, at least the reporters will.” But, he said, “I don’t think that’s right given the text of the People’s Rights Amendment. … I think the press clause wouldn’t save them.”

Discussing defenses of the amendment, Greenfield said, “if the answer is The New York Times can sue to vindicate the rights of their reporters and subscribers, that’s essentially what the court said in Citizens United… that corporations are acting as proxies for their shareholders. Then we’re back to where we are now — if that’s the way that the People’s Rights Amendment is being interpreted then we’ll fight over it for a decade, and it won’t change anything.”

Greenfield, who identifies as a progressive, said that new disclosure laws would be a far better remedy for opponents of the Citizens United decision. “I think there’s a lot of disagreement among progressives,” he said, noting that “the [Republican donor] Sheldon Adelson problem won’t be dealt with by this amendment.”

For the amendment to actually become part of the Constitution, it would first need to be passed through both houses of Congress by a two-thirds vote, and would then need to be ratified by three-fourths of the states. Vermont, New Mexico and Hawaii have passed resolutions calling for a constitutional amendment.

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