Move to Amend… Your Right to Speak Freely

By Kevin Joseph Ryan

This past December, TNR brought you coverage of an effort here in Vermont to amend the United States Constitution in order to overturn the Citizens United Supreme Court decision, which allowed corporations and other groups to spend unlimited funds to engage in the political process. This happened because Hillary Clinton tried to ban a film made about her that she didn’t like much. The resulting Supreme Court decision, Citizens United v. FEC, is unpopular with liberals, and some polls show opposition as high as 80 percent against the ruling in the general public, depending on who’s asking. State Senator Ginny Lyons is shepherding a resolution in the Vermont Senate to calling for a Constitutional amendment to overturn Citizens’ United, and on Town Meeting Day, 64 towns voted to support Lyons’ efforts. Last week,, the national group behind this effort, brought their road show to the Green Mountains. We talked to Senator Lyons and national spokesperson David Cobb, and, frankly, where they’re going is scarier than you think.

The central pillar behind this concept is that, as the bumper stickers read, “Money is not speech” and “Corporations are not people”. Senator Lyons silently waved money in the air at the Ira Allen Chapel event on March 15th, in a graphic demonstration of money not equating speech. (The bill’s didn’t talk.) However, the flaw in this thinking is that it overlooks the idea that corporations are run by people, and it is impossible to get your speech out in any significant way without money. I understand the fear in the minds of these folks. Sometimes, corporations do bad things, and frequently, we disagree with how money is used to create political change. When we check our wallets, we don’t have enough cash to “out speech” say…VPIRG. I know what they are afraid of. However, even scarier is what happens if Ginny Lyons and those promoting an amendment get their way.

Those who advocate for such a change in the U.S. Constitution are not even in complete agreement with each other. While U.S. Senator Bernie Sanders is promoting one amendment, which establishes that only for-profit corporations have no rights under the Constitution, and David Cobb are supporting an amendment which removes constitutional rights from all entities and groups which are addressed by the law.

According to Cobb, “We applaud Senator Sanders for introducing the save American democracy amendment. However that amendment does not address money in elections and that amendment abolishes corporate constitutional rights for for-profit corporations. We think it’s intellectually dishonest to say that for profit corporations don’t have constitutional rights, but non-profits do.” It takes a brave man in Vermont on the political Left to call Bernie intellectually dishonest, I’ll have to give Cobb that much credit.

What is important to keep in mind here is the wording of the amendment Cobb represents. That Amendment reads as follows: “Artificial entities, such as corporations, limited liability companies, and other entities, established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law.” This list includes Wal-Mart, Diebold and Monsanto, but it also includes your favorite charity, your church, your union and even your marriage…. All of them are “artificial entities…established by the State.”

David Cobb would disagree with this conclusion. When asked his goal, he said, “We want to get all money out of elections and we want to make clear that no corporations, whether profit or non-profit has any inherent inalienable constitutional rights.” I asked him, how did he feel about the rights of individuals? He said, “My rights, your rights, any individual’s rights are inalienable, they are not subject to the political process.” Fair enough. In fact, Cobb and I agreed that rights come from the Creator and that the Constitution merely recognizes them. When asked however, if his amendment allows government to violate the rights of people when they put assets into corporations or another type of group, Cobb simply said no, that those assets wouldn’t belong to the corporation, they’d belong to the people who own the corporation. One wonders why in that case anyone would form any type of group, association or club because in David Cobb’s world, they shouldn’t have the right to actually perform any function, unless government says they can. Government could even outlaw lobbying completely if it wanted to, said Cobb. Unfortunately, that would mean that you would have the right to redress your grievances as the First Amendment now grants, but you might not even have the right to an attorney, because what they do, essentially, is lobby on your behalf.

Herein lies the issue with any type of Amendment which would overturn the Citizens decision. Mr. Cobb did take some offense upon finding out that TNR had published an article on this issue entitled, “Vermonters against the First Amendment”, however, it seems that this is exactly what is at stake. With any version of this amendment being passed, the First Amendment would be severely altered. If the State can regulate the operation of any type of “artificial entity”, a group of filmmakers could be told, “You are an association, because you have made a film as a group. Therefore, you have no rights. Therefore, we have passed a law which says you must buy a license to show your movie for $10,000. No license, no movie…and no lawyer to argue with us about it.” Does that sound ridiculous?

Vermont Title 17 defines a Political Action Committee as “…any formal or informal committee of two or more individuals…”, when they take a political stand. The First Amendment gives you the right to “peaceably assemble,” presumably with other people. Cobb’s Amendment appears to say the State can tell you no, or throw you in jail for doing so, if they choose. State Senator Lyons said that even now, “Under the Constitution, States have certain rights, and those rights allow for the States to declare that this is an association and these are the characteristics.” I’m not sure the Constitution would agree.

Cobb says limited liability and special privileges for corporations is key to why this is needed. He is correct that special privileges should not be granted to anyone under the law. However, Ginny Lyons said that, “I’m looking to undo Citizens United, which declares that corporations are people and money is speech, and we both know that is ridiculous.” (Editor’s note: The ruling does not say that.) When Vermont Title 17 defines an expenditure as “…anything of value, paid or promised to be paid…” is that ridiculous? You are allowed to speak, says the law, but taking out an ad in the paper costs money. Running a commercial on television or radio costs money, and the State can even decide that the sign you hold up saying “Vote for Joe” has advertising value. So, can the State regulate your speech based on how much “value” it has or how much “money” you spend? The First Amendment says no. American values say no. David Cobb, Ginny Lyons and Bernie Sanders say yes, it is ok to regulate your political speech, so long as we get to define how you are regulated. That’s more frightening than someone yelling “Fire!” in a crowded theatre.