Can Congress overturn Citizens United without addressing corporate personhood?

This is a critical development: See .

This article claims that Citizens United and other such recent decisions were NOT, in fact, based on a corporate personhood argument (see the pretty decisive excerpts below and other excerpts in the article). If this is true, then all the anti-corporate personhood activism is barking up the wrong tree and actually distracting us from what needs to be done. In fact, when such activism promotes pushing a Constitutional amendments to solve the problem, it is delaying action that could correct this problem much sooner, in time for the 2012 election. Here’s the remarkable story:

These authors say that the Citizens United and other decisions were based not on the right of corporations to speak but on the right of citizens to hear all sides – which is legally weak in this case (just for starters!) because citizens who were denied their right to being informed were not even plaintiffs in the Citizens United case. The authors describe a number of even more potent legal grounds on which this could be attacked in the courts and under which Congress could go ahead and pass campaign finance reform legislation demanded by the population.

As a related article ( notes, the US Constitution (Article III, Section 2) gives Congress the power to define and regulate the “appellate Jurisdiction” of the Supreme Court. An 1803 Supreme Court also established the precedent that the Supreme Court must not decide essentially “political” questions. And “under Article I of the Constitution, it is Congress – not the court – that has the exclusive power to make or alter regulations regarding the ‘Manner’ of holding elections…[and the] power to judge the elections of its members.”

Thus by deciding “essentially political” cases involving elections, the Supreme Court violated the “separation of powers” principle, usurping Congresses right to regulate elections. And, therefore, “Congress has the power to remove Court jurisdiction over financing election campaigns [which] means that the court would not even be able to take up cases involving financing of elections. Congress and state legislatures will then be free to pass laws removing private money from election campaigns.”

In the authors summarize: “Tragically, the recently initiated drive for a constitutional amendment dangerously leads the public away from demanding that Congress act now using its existing power. It implements delay. It substitutes an incredibly difficult approach. It legitimizes the court’s illegitimate seizure of jurisdiction over a fundamental political question. It also demeans the American revolutionaries, who purposely and intentionally wrote this important check and balance into our Constitution for just such a circumstance as the one we face now. And asserting that the only solution is a constitutional amendment diverts, weakens, confuses and demobilizes people.”

“Even if a heroic public managed to mobilize in great enough numbers to force passage of a constitutional amendment, the amendment would not actually solve the problem if jurisdiction over election financing is left in the hands of this court. The majority on the Supreme Court, having already violated their constitutional mandate, would find other ways to use that continuing jurisdiction to make bogus decisions that maintain and expand the power of the 1 percent.”

I do not know enough to decide that this is the right approach. But THE ISSUE THAT IS BEING DEBATED HERE IS ONE OF THE MOST FUNDAMENTAL ISSUES OF OUR TIME IN THE UNITED STATES. We the people must regain democratic control of our electoral process. I hope this issue is well deliberated and that the salient points needed to coalesce around the most potent strategy become clear.



From the Citizens United majority decision:

The Court below [the Supreme Judicial Court of Massachusetts] framed the principal question in this case as whether and to what extent corporations have first Amendment rights. We believe that the [Massachusetts Court] posed the wrong question. The Constitution often protects interests broader than those of the party seeking their vindication. The first amendment, in particular, serves significant societal interests. The proper question therefore is not whether corporations “have” first amendment rights, and if so, whether they are coextensive with those of natural persons. Instead, the question must be whether [the statute] abridges expression that the first amendment was meant to protect. We hold that it does.

The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.

The First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.

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