UPDATE: I've decided to vote in favor of Prop 59. I figured that the symbolic force of the measure was a good thing and since the measure is non-binding, there is no real danger to the badly worded clause suggesting that California's elected leaders must advocate a constitutional amendment that “make[s] clear that corporations should not have the same constitutional rights as human beings.”
Some context for non-Americans. In 2010, the U.S. Supreme Court issued its ruling in the case of Citizens United v. Federal Election Commission. The Court ruled with Citizens United, a non-profit political advocacy group, determining that freedom of speech prohibited the government from restricting independent political expenditures by a nonprofit corporation. The Court ruling was grounded in the notion that, as legal persons (including fictitious entities; companies), corporations enjoyed the same constitutional right to freedom of speech as natural persons (human beings). The Court found that money is a form of speech and therefore ruled it was unconstitutional for the government to restrict corporate political spending. The 5-4 decision was controversial, offending people on both sides of the isle. Proposition 59 is a measure by which, if approved by California voters, will non-bindingly require California’s elected officials to use their authority to propose and ratify an amendment to the federal Constitution overturning the United States Supreme Court decision in Citizens United v. Federal Election Commission.
For most liberals, voting yes on Proposition 59 would seem like a no-brainer. However, the LA Times, which declined to endorse Prop. 59, provided a compelling argument for why, at the very least, this initiative requires serious reflection for voters in favor of overturning Citizens United .
The Times reminds us that changing the Constitution is an arduous task — one we must consider carefully before issuing a knee-jerk reaction to any disagreeable Supreme Court ruling. Additionally, the California State legislature already voted in 2014 to petition Congress to convene Constitutional Convention to approve an amendment overturning Citizens United. So if Daniel (my friend who kindly offered me his take via Facebook) is right in that, "[Prop. 59] doesn’t really do anything except for establish an official stance on the matter” then Prop. 59 essentially does nothing. Moreover, since Citizens United was only passed by a 5-4 majority, it’s very possible that a future court will reconsider or narrow the ruling, especially a court comprising a Clinton appointee. Even if that doesn’t happen, normal legislation can still cure some of the issues re corporate influence in politics. We are not at the end of the line just yet.
However, more concerning than the prospect of an unnecessary squandering of effort and monies put forth in support of amending the Constitution is that — as Proposition 59 suggests — a constitutional amendment would “make clear that corporations should not have the same constitutional rights as human beings.” Wait, what? Should Corporations not enjoy any constitutions rights? How about the right from unlawful search and seizer or the right to a speedy jury trial? Surely, we would still want corporations to enjoy some of the rights the Constitution provides for human beings. Does the assertion that corporations should not have the same constitutional rights as human beings mean that corporations are entirely undeserving of those rights viz. any legal instrument (i.e., protections granted through normal legislation)? The language of the measure intimates that the Legislature couldn't even support a constitutional amendment stripping corporations of personhood, on the one hand, but reestablishing some rights through normal legislation, on the other. Prop 59 could force an elected leaders to support legislation that would enjoinder corporations from enjoying any rights bestowed on human beings by the Constitution, and that could also prohibit lawmakers from using normal legislation in order to provide corporations protections to which they ought to be entitled should those protections overlap with constitutional rights of human beings. So Prop 59 is problematic insofar that either the constitution or normal legislation ought to afford corporations at least some of the protections currently enjoyed by corporation. Supporters of Citizens United could use the ambiguous, but specific, wording of the measure to delay support of a constitutional amendment down the line by attempting to use the Courts to remind the Legislature that the voters only agreed to let them support an amendment containing the untenable clause that the rights of businesses could not even overlap (even if granted through normal legislation or a different constitutional amendment).
The call for a U.S. Constitutional amendment to abolish corporate personhood could not only be disruptive for good corporate rights, but may also carry the burden of putting forth a hefty theory of corporate ontology, as we grapple with if, how, and to what extent, to strip corporations of personhood. Overturning Citizens United would not simply result in corporations no longer being "persons." In fact, The Citizens United majority opinion makes no reference to corporate personhood, although Justice Stevens' dissent claims that the majority opinion relies on an incorrect treatment of corporations' First Amendment rights as identical to those of individuals; as Justice Stevens wrote in his dissension: “Legal entities are not ‘We the People’ for whom our Constitution was established” (Citizens United v. Federal Election Commission, Opinion of the Court (2010)).
Since Citizens United ruling didn’t exactly rule that corporations are people, but merely treated corporations in that way in arriving at their decision, the thorny issue of corporate personhood may not even need to be addressed to undo the damage of Citizens United. But the Citizens United Court did rule that money is a form of speech. So rather than calling for a broad and messy Constitutional Amendment spelling out that corporations are not people, a more pragmatic option could be to support narrow constitutional amendment providing that corporate monetary transactions are not forms of speech. This would effectively undermine Citizens United while avoiding the question of corporate personhood altogether. That is not to say, I don’t think the question of corporate personhood should be avoided, but the ultimate status of corporate personhood — which may very well require a constitutional amendment — is not necessary the summum bonum with respect from freeing our democracy from the influence of big money.
As long as these questions hang in the air, calling for constitutional amendment as far flung as the language of Proposition 59 suggests, dilutes the strength of the call to reform. Proposition 59 is a purely symbolic move — hardly evening establishing an official stance on the matter (a stance of what, exactly?) — which is fine. A symbolic measure has the power to inspire the public and also the Justices. However, given the ambiguities in the wording of measure, which adversaries could potentially use to delay the process of California voting to ratify a Constitutional Amendment, we must carefully consider the merit of such a symbolic undertaking given the unpreparedness of lawmakers and the public alike to answer questions that would be key in constructing an elegant Constitutional Amendment, which would succeed in ameliorating the undue role corporate money in politics while preserving compare rights in a way that best serves the interests of American Democracy. In conclusion, I agree with the Times' statement recognizing that:
“…the very reason we opposed placing this question on the ballot — that it’s purely advisory — could be offered as a justification for voting Yes; why not take advantage of this opportunity to ‘make a statement’?
Fair enough, but if that statement is: ‘Amend the Constitution; details to follow,’ we don’t think it’s a message worth sending.”
Although, I am ardently opposed to the Citizens United ruling, I can see there are issues with the measure that deserve serious scrutiny. Merely being against Citizens United (as I am) should not simply translate into a YES vote. I'm still not sure how I will vote, but I am leaning towards a NO on Proposition 59.
I'd really like to hear your opinions on this, as I really care about making the right choice on this one. I invite you to publicly post your comment or send me a private message.
[On Nov. 8, I made typo edits to this post and also added the following sentence to paragraph 4 "Supporters of Citizens United could use the ambiguous, but specific, wording of the measure to delay support of a constitutional amendment down the line by attempting to use the Courts to remind the Legislature that the voters only agreed to let them support an amendment containing the untenable clause that the rights of businesses could not even overlap (even if granted through normal legislation or a different constitutional amendment)." ]