Assemble Freely, and Lose All Your Rights

My new column is up at Forbes, and discusses the proposal by a number of Congressmen for a Constitutional Amendment to strip corporations of speech and other rights.  The post is hard to excerpt but here is just a bit:

This is why this proposed Amendment is so absurd.  In effect, it would mean that we all enjoy the full range of Constitutional rights, except when we agree to assemble and cooperate -- then we lose them all.   If I as an individual bake bread in my kitchen for resale, I could still petition the state to modify regulations relevant to my activity.  If I then join together with my neighbor in a cooperative venture to bake and resell bread, does it really make sense that I would then lose my right to petition the government?

Worse, the proposed Amendment does not limit its scope to just the First Amendment.  It means that individuals, when on corporate property, might have no protection from unreasonable searches and seizures;  corporations would have no guarantee of due process or of a jury trial in civil suits;  corporate assets would no longer be protected from eminent domain seizure without compensation.  Under this provision, the Federal government could seize Apple Computer if it so desired (or even quarter troops in the Apple offices!).  This all sounds like a stalking horse for Socialism, which might seem overwrought until one realizes that Bernie Sanders is the sponsor of a similar proposal in the Senate....

Of all the possible approaches to reducing the ability of private citizens to manipulate government policy to their personal benefit, this is in fact likely the worst.  As mentioned above, there are many different avenues to exercising influence and power, of which election spending and advertising is just one.  But election spending is the most transparent of all of these approaches.  This proposed amendment would in effect substitute highly visible advertising and electioneering with backroom deals and political patronage that is far more hidden from the public eye.  A cynical person might argue that this is exactly the goal.


  1. IGotBupkis, Evoluted Biologist:

    >>> This proposed amendment would in effect substitute highly visible advertising and electioneering with backroom deals and political patronage that is far more hidden from the public eye.

    So, a return to Chicago-style politics, then?

    I wonder who would be all-in-favor of that in this election cycle?

    Or would we go the New York "Tweed" route?

    Is there a real difference?

  2. Jon:

    Similar to our rights to assemble that have been taken away as outlined by Will Grigg:

  3. Ted Rado:

    Does anyone any longer doubt that we are on the way to an elected dictatorship?

  4. David:

    Perhaps a half-measure would be that corporate personhood is left intact, but said person would be enjoined from anonymous political speech or lobbying?

  5. NL_:

    I don't understand why it says "natural persons" but then says it excludes entities formed for business purposes. So do public charities and private foundations still have rights, or do they not? Because they are not natural persons, but they are also not formed for business purposes and are not for-profit. Seems like they could have stopped with "natural persons."

    It also makes me wonder what happens to trusts, which hold many billions of dollars for the benefit of widows, descendants and the physically infirm. Technically a trust is just an arrangement giving legal but not beneficial title to the trustee. But by far the most trusted and competent trustees are large for-profit institutions. It seems like there might be serious consequences for this market if trustee institutions exist at the whim of legislators, especially since trust law in many ways relies on privacy.

    Reading the proposed amendment, I can sum it up this way:

    Section 1: Business can't use courts to block our laws.

    Section 2: We get to make whatever business laws we want.

    Section 3: Corporations can't oppose us in elections.

    Section 4: We can stop challengers from gathering money (even their own) to challenge incumbents.

    It's more or less written to make legislators more powerful, courts less powerful, lawyers somewhat less important, labor unions and political parties more powerful, and incumbency more important than ever.

    By the way, THOMAS says there's a similar proposal H.J.Res. 88.

  6. NL_:

    On another note, I know a lot of lefty types who think of themselves as constantly expanding rights. One of the arguments I heard a lot against the federal marriage amendment was that it would be unique for being a constitutional amendment that limited rights, as all the others expand rights. (Not really true, though, since the 16th Amdt makes it easier to take property and the 18th Amdt makes it possible for the feds to ban alcohol.)

    This amendment would inarguably be about limiting rights and expanding the power of government. It forces the left to face an internal contradiction between their liberal rhetoric and their statist methods. They talk a good game about letting people make their own choices, but this is an unabashed attempt to make it harder to challenge regulations and harder to challenge incumbents.

    It's worth noting that there would be a lot of side effects against methods, goals and institutions that lefties like. If say sex shops were enjoined by federal law from selling marital aids, or department stores were prohibited from offering wedding registries to gay couples, then the law could only be challenged by an individual, not a business entity. The sole proprietor is not a formal business entity in most states (and does not have any limited liability protections).

    Technically this new Amendment would allow Congress to prohibit businesses from using their funds to support the legal effort of the sole proprietor. After all, the Congress can make whatever business law it wants under Section 2 and the business is unable to challenge it under Section 1. So the court could require a business owner to challenge a law as a sole proprietor (separate from his established business) and then prohibit him from using his business funds to support the challenge. Even though in both situations it could be the same guy: a single-member LLC prohibited from using his business funds to support his legal action as a sole proprietor.

    It's funny how the main thing the Democrats and Republicans agree on is that the courts are too powerful when they block legislatures and presidents from doing whatever they want. As a libertarian, I think the real constitutional flaw is that technically the Congress can alter the jurisdiction of federal courts by a simple majority. If we need any constitutional amendment relating to the judiciary, it's one stripping the Congress of the ability to block judicial review of its own actions. The only thing that stops Congress from doing it right now is political opposition. Which is the same thing that we used to rely on the protect economic freedom from the legislatures, and look how well that worked out.

    The courts are to a large extent the original government watchdog. It's not surprising that the two main political parties believe the courts have little role left to play. The left thinks that the Constitution is so flexible that any new regulatory power with good intentions is justified, making court review irrelevant. The right thinks that courts must exercise the highest level of deference to their betters in the elective branches. Two sides of the same coin - let the politicians do what they want.

    We need a court system that aggressively challenges the flimsy assertions and arrogant usurpations of the politicians.

  7. Not Sure:

    "They talk a good game about letting people make their own choices..."

    You're not talking about progressives here, are you? You know- the folks who insist they know what kind of shower head and toilet and light bulb you should be allowed to use. And what kind of food you should be allowed to buy in restaurtants. And how much seasoning you should put on that food. And... and... and...

  8. Rob:

    Isn't corporate lobbying simply a bunch ofmarketing dollars spent well? Which is easier: convincing 1 central power made up of a handful of people or convincing millions to choose you over a competitor. I doubt that this bill would exist if the govt wasn't so large - the same goes for campaign finance and term limits.

  9. Pat:

    I find it interesting that Democrats that insist that corporations are not "persons", and thus want to take away corporations' ability to "speak" with dollars NEVER say the same thing about unions.

  10. Tom:

    Does this proposed amendment prohibit any group that assembles from having free speech?
    For example:
    A newspaper?
    The League of Woman Voters advocate?
    The Democratic Party?
    The Sierra Club?
    A blog of more than one person?
    A union?

  11. mishu:

    Silly Coyote. Forming a corporation is not peaceful assembly. Assembly only means gathering a mass of people waving puppets, placards, etc. and rhythmically chanting rhyming verse, usually on a government owned real estate.

  12. James:

    We need to simply start calling "Lobbying" what it really is - Bribery - and then take appropriate action. . . Indict indict indict.

    As mishu said. . . forming a corporation is not peaceful assembly. . .

    Forming a corporation is an Act of War against the American people - it is nothing more than a means by which the unscrupulous and unethical band together to carve this country up a little finer than it was the day before.

    If this offends you, you're part of the problem.

  13. caseyboy:

    James, you obviously know nothing of capital formation, cost of capital, market risks, etc. Corporations are a logical vehicle for raising capital, managing its costs and mitigating market risks. And guess who owns corporate stocks? Will, American people through pension funds, 401k's, IRA's and direct stock ownership. American exceptionalism, aligned with free markets and channeled through innovative business models (corporate structures) caused an economic explosion that improved the standard of living for many people around the world. I'd like to see us give that free market thing a try again.