I-1329: A Lesson in Failure

I-1329 failed to make it to the ballot. I can’t say that I am surprised or even disappointed.

It is certainly true that we need to undo the damage to democracy inflicted by dozens of Supreme Court decisions over the past hundred years or more, including recent decisions such as Citizens United and McCutcheon. MoveToAmend (MTA) has proposed a Constitutional Amendment that has been introduced in Congress as HJR 29. I wholeheartedly believe that this language is the best of all the proposals currently under consideration. David Cobb of MTA told me personally that he would not support any of the other proposed amendments, because they were all in some way flawed.

That’s why I am surprised that David Cobb and the rest of the folks at MoveToAmend decided to support an initiative in Washington State (I-1329) that purported, yet failed, to fully address the issues of corporate personhood and money as speech.

For example, HJR 29 states: “The rights protected by the Constitution of the United States are the rights of natural persons only.”

I-1329 Section 3 stated: “The rights of people protected by the Constitution of the United States are the rights of natural persons only.” (Emphasis added.)

The language in I-1329 was flawed in the same way that the 14th Amendment is flawed, because lawyers could argue that corporations are people, so corporations have the rights of natural persons. The language in HJR 29 does not have this “circular logic” flaw which in the case of the 14th Amendment has been exploited by corporate lawyers for generations.

Regarding money as speech, HJR 29 states “The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.”

I-1329 did not contain this language in Section 3; therefore, it failed to address fully the issue of money as speech. The initiative danced around this issue in earlier sections, but just like a resolution, it doesn’t much matter what you say in the “whereas” clauses; it’s the “be it resolved” sentences that really matter, and in the case of I-1329, Section 3 is the “be it resolved” section.

So what, you may ask, did I-1329 resolve to do? It would have called for a Constitutional amendment allowing federal and state governments to place limits on campaign contributions and requiring disclosure thereof. Don’t get me wrong. I think this is a good idea. It would restore the constitutionality of limits on campaign contributions such as those imposed by the Federal Election Campaign Act (FECA) as amended in 1974 and in the Bipartisan Campaign Reform Act (BCRA, aka McCain-Feingold Act) of 2002. But really all this does is set the clock back a couple of decades. Do any of us really believe that money did not unduly influence politics in 1974, much less 2002?

The real core of the problem lies in the need to reverse a nearly 200 year history of the Supreme Court granting constitutional rights to artificial entities (such as corporations). The amendment suggested in I-1329 would not have addressed this problem any more effectively than current efforts in Congress to pass the similarly limited Udall Amendment (S.J. Res 19) and House companion, the Deutch Amendment (H.J. Res 119). Both of these proposals would allow limits to be imposed on campaign contributions without addressing the elephantine issue of corporate constitutional rights. Worse, such proposals, if passed, would be praised as “overturning Citizens United”, and greeted with banners proclaiming “MISSION ACCOMPLISHED”, meanwhile killing any real chance of preventing plutocratic control of our republic, and spelling the end of the American experiment in representative democracy.

Interesting side-bar: MTA has called for S.J. Res 19 and H.J. Res 119 to be amended to state conclusively that corporate entities are not entitled to constitutional rights and to establish that spending money is not a protected form of speech. I find this strange since they did not call for I-1329 to include this essential language.

In conclusion, I would like to add that the efforts to get I-1329 on the ballot in Washington were doomed not because the bar is set too high for the number of signatures required, but because the organization leading the signature gathering efforts, known as WAmend, misunderstood the goals of the movement to end corporate personhood, misrepresented the proposed legislation as being something that it patently was not, and through oppressive behaviors alienated many who would otherwise have supported signature gathering efforts.

The clearest example of this is the wrong-headed missive I received from WAmend announcing that they planned to start using paid signature gatherers and asking for donations to cover the cost–with donations to be matched by an outside, unnamed entity. In the days and weeks that followed, WAmend precipitously backed off from this position and ended the campaign by trumpeting the righteousness of a campaign that relied only on volunteers to collect signatures. Too bad they did not understand the people power aspect of the movement when they started the campaign. Perhaps, if they had, they would have been more successful.