The stupid idea de jour is brought to us today in the form of the People’s Rights Amendment, courtesy of Congressman Jim McGovern. Catering to the wacky paranoia of the Occupy movement and (less likely) his Massachusetts constituents, McGovern seeks to deny constitutional rights to any corporation, for profit, nonprofit, tribal, foreign, sole proprietorship – you name it. Any entity organized under a state incorporation law would have no constitutional protection against the power of government. George Will had an excellent op-ed on McGovern’s effort a day or so ago where he says the intent is to, “vastly expand government’s power to write laws regulating, rationing or even proscribing speech in elections that determine the composition of the legislature and the rest of the government. McGovern’s proposal vindicates those who say most campaign finance ‘reforms’ are incompatible with the First Amendment.”
This proposal has very real and potentially painful consequences for individuals of all political persuasions. To show that impact, here’s an illustration based on a real case.
A very well-known civil rights membership group, incorporated in New York, had been operating in a number of other states for many years. In one state, which we will call “Balalama,” it has been active for almost 50 years. Political winds in Balalama had reached gale force, and the state decided to shut the group down.
Because the group was an out of state corporation, Balalama went after the fact that it had not complied with a list of steps necessary to register as a foreign corporation doing business in Balalama. Many of these demands were seemingly innocuous – such as designation of an agent for service of process. One of the demands Balalama made was that the group produce a list of all its members.
Now, nobody would question the power of a state to enforce reasonable rules to identify and regulate foreign corporations. But Balalama didn’t really want to do that. It wanted to either jail the activists, or drive them from the state. The groups members, if revealed, would be in danger, because Balalama wasn’t especially interested in protecting them from mob reaction. The popular view in Balalama was toxic to the survival of this group.
Balalama lost in court eventually, because the Supreme Court saw through its pretextual imposition of its foreign corporation law. It lost because the membership corporation possessed due process rights guaranteed by the constitution. Had the McGovern amendment been in place, Balalama would have operated under no such constraint, because the incorporated group would not be entitled to any rights. Balalama, given its power to regulate corporations, could have required the group to produce any information Balalama wanted, could exact special fees from it — could operate pretty much with a free hand.
McGovern has aimed his rhetorical fire at multinationals and large publicly traded companies. But he has overlooked that corporations exist in every sphere of our society. Your kid’s soccer league, your church, your Congressman’s campaign committee are all corporations. And the amendment would deny not just the right to speak independently in campaigns (the right preserved in Citizens United and the aspect of this issue that has some people agitated) but other First Amendment rights, Fourth Amendment rights against unreasonable searches, and Fifth Amendment rights that require compensation for takings.
McGovern’s response to that observation could be that nothing in his amendment prevents real live individuals from continuing to engage in protected activities. But by denying protection to the vehicle by which individuals organize, they become less effective. This amendment, which pretends to enhance the power of “the people” does nothing of the kind.
We wait with eager anticipation to hear McGovern explain to the hard-working people of the Third District exactly why it would be a good idea to allow the government to seize the assets and property of their small business, or their church; or put their preferred advocacy organizations out of business.
