By Lachlan Markay
Tuesday, September 13, 2016
Tom Steyer wants to amend the U.S. Constitution to allow
the government to regulate religious sermons, tap the phones of the American
Civil Liberties Union, seize phone record and Internet search histories on a
whim, and give bureaucrats veto power over the content of The New York Times.
If that sounds like hyperbole, you need only read the
text of Proposition 59, the California ballot measure Steyer endorsed last
week. Billed as an attempt to roll back the Supreme Court’s Citizens United decision, the measure is
actually far broader and more dangerous: it seeks to eliminate all
constitutional rights for incorporated entities—for-profit companies, but also
nonprofit groups, labor unions, charities, churches, and any other association
given an official government imprimatur.
Steyer has focused of late on the ostensibly pernicious
effects of money in politics as he pours more money than any other individual
into federal elections. But for all of Prop 59’s focus on Citizens United, it never even mentions the separate Supreme Court
case that has allowed Steyer to almost single-handedly finance one of the
wealthiest political groups in the country.
“The United States Constitution and the Bill of Rights
are intended to protect the rights of individual human beings,” declares
California Senate Bill 254, which placed Prop 59 on the ballot. “Corporations
are not mentioned in the United States Constitution, nor have we decreed that
corporations have rights separate from ‘We the People.’”
People in Groups
Lose Their Rights
Put simply, SB 254 says, “Corporations should not have
the same constitutional rights as human beings.” Those rights, as we know,
include not just the right to free speech that produced the Supreme Court’s
2010 decision, but also rights to due process, a jury trial, and freedom from
unreasonable searches and seizures.
Prop 59 calls for the California legislature to back a
constitutional amendment eliminating those and all other liberties in the Bill
of Rights for incorporated entities. It proposes to overturn not just Citizens United but all “other
applicable judicial precedents,” including court rulings that applied
constitutional rights to incorporated entities.
The legal definition of “corporations” includes not just
for-profit entities but non-profits, charities, labor unions, churches, and
virtually every other association recognized under the law. It’s worth
considering, then, what sorts of activities would be permitted if, unlikely
though it is, Steyer got his way, the ballot measure passed, and the
Constitution were amended in the manner SB 254 spells out.
Corporations—which, again, include far more than just
profit-making enterprises—would no longer have rights against unreasonable
searches and seizures. If a government entity decides that it wants some piece
(or every piece) of information from the ACLU, to use a particularly
illustrative example, it could tap the group’s phones, monitor its digital
communications, bug its offices, conduct random and sweeping physical searches,
and otherwise pry into the most sensitive details of its work, all without
obtaining a warrant or any other legal justification. As an incorporated
entity, the ACLU no longer would have any constitutional rights, so all of its
property and communications would be fair game.
Churches and religious organizations are, by and large,
incorporated entities. Under Prop 59, those entities would no longer enjoy
First Amendment freedoms, meaning the government would be free to regulate
religious worship, teachings, sermons, and educational and charitable
endeavors. As officers of incorporated entities, clergy could be barred from
expressing their faith in an official capacity if Congress or a presidential
administration disapprove.
The government could seize any corporate assets it
desires. The Sixth Amendment’s protections against the seizure of property
without just compensation would no longer apply, so the next time the National
Security Agency wanted a full and complete accounting of your cell phone calls,
your Google search history, or your credit card purchases, all it would have to
do is take that information from the relevant company. Of course, any corporate
property would now be government property the minute the bureaucracy decides it
is, meaning every media company in the country must surrender its printing
presses and video cameras if the government decides it wants them.
A Full Assault on
the Press
That gets to perhaps the most pernicious effect of Prop
59, if it were implemented in full as spelled out in SB 254. In high-minded
tones about the importance of democracy and political integrity, it proposes
effectively destroying the First Amendment. Under the banner of political
participation, Steyer and his fellow supporters would make it legal for the
government to censor at will the contents of America’s political press.
The First Amendment would no longer apply to the parent
companies of the New York Times, Washington Post, Des Moines Register, the East
Hampton Star, CNN, Fox, MSNBC, all three news networks and their local
affiliates, National Public Radio, PBS, the Huffington Post, or The Federalist.
If a U.S. president decides he doesn’t like the content of their reporting, his
bureaucracy would be constitutionally permitted to shut them down or, if he’s
in a charitable mood, strike a story or two from their reporting.
Prop 59’s proposed assault on the political press is
nothing novel for those who have followed the political drama over corporate
political spending in the wake of the Citizens
United decision. That decision struck down laws limiting nonprofits’
ability to spend money on speech that criticized a politician during an
election season.
The court rightly noted that it is precisely that type of
speech—discussing public servants, often in critical ways, as the general
public weighs whether they deserve support—that the First Amendment is designed
to protect first and foremost. Efforts to roll back Citizens United, while rooted in legitimate concerns about
corruption and the integrity of elections, are nevertheless coming down on one
side of a particular question: should the government try to maximize speech at
risk of tainting elections with special-interest money, or should it attempt to
restrict that money at the expense of a vibrant national political debate?
That is a question worthy of nuanced debate. But Prop 59
and Steyer’s support for it reveal an uglier side of the campaign finance
debate. Frequently touting the slogan “corporations are not people,” these
sorts of efforts would have radical and disastrous consequences for American
democracy. Prop 59 would not just limit corporate political spending on
elections, it would exempt wide swaths of American society from any
constitutional protections whatsoever, subjecting millions of civic, religious,
financial, charitable, and educational associations to the whims of bureaucrats
and politicians, who would be free to trample on rights their members no longer
enjoy simply by virtue of their association.
Are you worried about either Donald Trump or Hillary
Clinton winning November’s presidential election? Well, now imagine what your
disfavored candidates would do with the power bestowed by Prop 59’s
constitutional amendment.
This Wouldn’t
Actually Get Big Money Out of Politics
For all of the measure’s perhaps unintended consequences,
there is one type of organization that would not be affected by rolling back Citizens United: the billionaire-funded
super PAC.
Many Americans believe Citizens United is responsible for the super PAC. In fact, that
distinction falls to another Supreme Court case, Speech Now vs. FEC, that is not mentioned in the text of Prop 59 or
SB 254. Speech Now struck down limits
on the amounts of money individuals could donate to groups that spend unlimited
sums to elect or defeat a candidate, as long as those groups don’t coordinate
with candidates themselves.
Citizens United
allowed corporations to donate to such groups, creating a system whereby these
groups could solicit limitless funding from corporate entities to spend on
explicitly political activity. Overturning Citizens
United would eliminate corporations’ abilities to finance super PACs, but
extremely wealthy individuals would still be allowed to finance these
independent expenditure groups to their hearts’ content.
It just so happens that Steyer is doing exactly that.
He’s donated $38 million to his personal super PAC, NextGen Climate Action, so
far this cycle, on top of the $72 million he contributed ahead of the 2014
midterms. The group has reported a few donations from labor unions, but Steyer
has provided nearly 100 percent of funding for the group. If Citizens United were rolled back, he
could continue doing so, even as high-dollar super PACs with which he often
clashes, such as the U.S. Chamber of Commerce, would be hobbled considerably.
Steyer frequently proclaims his distaste for money in
politics, but Prop 59 would leave his political operation nearly untouched. The
real damage would be done to America’s political press, civil society, and
every individual who decides simply to exercise his or her right to freely
associate with others.
In fact, they won’t have that right either, if Steyer and
company get their way.
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