OPINION: Santa Monica Council Should Oppose “Absurd” and “Dangerous” Constitutional Amendment

May 10, 2013 -- “How can the City achieve and maintain its goal to be “business friendly” or promote economic growth if, at the same time, it is encouraging the adoption of a constitutional amendment denying business owners basic constitutional rights? How can it claim to be a progressive and open society while supporting the suppression of robust public discussion?”

Those are among the key questions asked by land use attorney Tom Larmore in a letter to the Santa Monica City Council Thursday opposing staff’s recommendation to adopt a resolution supporting an amendment to the U.S. Constitution to abolish corporate personhood.

Following is the entire text of the letter:

Dear Mayor O’Connor and Councilmembers:

I’m writing to strongly object to the Staff recommendation that the Council adopt a resolution in support the Move to Amend Campaign (“MAC”) proposal to deny constitutional rights to “artificial entities” - organizations formed by people to conduct business, engage in charitable or religious activities, or advocate for important social or political causes - and urge that you reject this proposed Resolution.

On January 24, 2012, Staff recommended adoption of a resolution supporting MAC’s proposed constitutional amendment to abolish “corporate personhood,” generally in reaction to the Supreme Court’s decision in Citizens United which recognized First Amendment rights for corporations and labor unions. Concerned about the broad wording of this proposed amendment covering significantly more issues than are presented by Citizens United, the Council directed Staff to come back with a more limited resolution. Staff did so on March 27, 2012 in response to the Council’s concerns. The following is from the March 27, 2012 Staff Report:

“At that meeting Council members discussed the draft resolution but did not vote to approve it citing concern over its wording. Council asked staff to return with a revised version of the resolution that:

1. Expresses support for overturning the Citizens United decision

2. Expresses support for the idea that money is not the same as speech

3. Expresses support for an amendment to the U.S. Constitution so as to prohibit corporate contributions to political campaigns.”

The Council adopted a revised Resolution on March 27, 2012 which focused on the role of corporate spending in election campaigns.

On April 30, 2013, the Council directed Staff to return with a new resolution “updating” the one adopted last March which would include a reference to the May 10, 2013 “mobilization” organized by MAC. However, instead of “updating” the previous resolution, Staff is returning with a proposed resolution similar to the one this Council rejected in January, 2012 supporting MAC’s proposed amendment in its entirety. The basis for this recommendation is set out in the extensive “whereas” clauses which focus on the alleged evils of large corporations, particularly in the context of elections. However, Staff failed to give you the language of MAC’s actual proposal which it recommends be supported. According to MAC’s website, Section 1 of its recommended amendment reads:

Section 1. [Artificial Entities Such as Corporations Do Not Have Constitutional Rights]

The rights protected by the Constitution of the United States are the rights of natural persons only.

Artificial 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.

The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable.

What this language clearly means is that every business, except those operating as sole proprietorships, and every non-profit corporation or association, would be denied all rights and protections under the United States Constitution, including freedom of speech, press, assembly and religion, freedom from unreasonable searches and seizures, the right to just compensation if property is taken by the government, due process and equal protection of the law, and the sanctity of contracts -- virtually every media outlet, including newspapers, would be denied First Amendment rights. Examples of significant impacts of such an amendment had it been a part of the Constitution would include:

The New York Times would not have been able to publish the Pentagon Papers.

In fact, the New York Times might well have been driven out of business as a result of libel actions instituted in the South during the Civil Rights era instead of having the Supreme Court uphold its First Amendment rights in New York Times v. Sullivan.

The Constitution would not prevent the government from appropriating property owned by a business entity or non-profit corporation without paying just, or any, compensation.

The Constitution would not prevent the police from entering the offices of almost any business, charitable or religious organization or labor union or other association without a search warrant and seize any property it desired. This result would be similar to the dreaded “writs of assistance” issued in colonial times - one of the major issues leading to the Revolution.

Non-profit religious organizations would not be protected by the Constitution’s free exercise and establishment clauses.

Non-profit organizations such as The Sierra Club, Common Cause, and the ACLU, among others, would be denied First Amendment rights, even the right to advocate for political reform.

As Mark Schmitt pointed out in the January 20, 2012 issue of The New Republic:

“And while corporations aren't people, and they can be and should be regulated, such efforts to regulate ought to at least begin with the presumption of a right to free expression. Regulations on corporate speech, just like limits on speech by individuals, have to be justified as serving a valid public purpose. A law, for example, barring all corporations, including Common Cause, from speaking out in favor of campaign finance reform would be a disgraceful encroachment on free expression — but perfectly permissible in a world in which corporations have ‘no rights.’ Are corporations such as Common Cause really willing to endorse the idea that they have no basic right to speech?”

Lest you think this is an overreaction, the Move to Amend website explicitly calls for the abolition of all constitutional rights and protections for any “artificial entity,” specifically listing those of free speech under the First Amendment, protections against unreasonable searches and seizures under the Fourth Amendment, requirements for the payment of just compensation for government taking of property under the Fifth Amendment, protection against double jeopardy under the Fifth Amendment, requirements for due process under the Fifth and Fourteenth Amendments, protections against arbitrary, discriminatory and capricious government actions under the Fourteenth Amendment and the Commerce Clause, and protection of the rights of contracting parties to reliably enforce agreements under the Contract Clause.

Corporations, non-profit corporations, partnerships, limited liability companies and other entities are not alien beings. They are formed and operated by people and most are small companies running local businesses, not massive international conglomerates. I think there is a fair discussion to be had regarding the participation of large corporations in the political process and I would not object to a resolution which focused on that issue. But what Staff is recommending is much more extensive going far beyond Council’s previous resolution and is far more than just an “update” of that resolution.

How can the City achieve and maintain its goal to be “business friendly” or promote economic growth if, at the same time, it is encouraging the adoption of a constitutional amendment denying business owners basic constitutional rights? How can it claim to be a progressive and open society while supporting the suppression of robust public discussion?

I realize that this is little more than a symbolic vote but those votes mean something and a support of MAC’s proposal would send a very unfortunate signal to existing local businesses and those considering a move to Santa Monica as well as to charitable and religious organizations.

The MAC proposal is absurd and, if successful, would be extremely dangerous - it should be opposed by this Council, not supported.

I regret that I will be out of town on May 14; however, this letter expresses what I would have said at that meeting.

Thomas R. Larmore