Feingold opposes constitutional amendment to overturn SCOTUS decision

[ProSense]

Feingold opposes constitutional amendment to overturn SCOTUS decision

By J. Taylor Rushing

Wisconsin Sen. Russell Feingold (D) on Thursday said he opposes a constitutional amendment to overturn a controversial Supreme Court decision last week that allowed an influx of corporate spending in political campaigns.

Feingold, who along with Sen. John McCain (R-Ariz.) has worked passionately for more than a decade to limit the influence of money in politics, said he simply cherishes the Bill of Rights as it stands.

"I think it's very unwise to change the Bill of Rights for any purpose," Feingold told The Hill. "I have taken that position against a number of very unwise ideas from the Contract With America crowd who helped make sure those amendments didn't get passed... The Constitution is the most important thing to me. I do acknowledge that the Supreme Court's lawless decision, which may have been one of the worst decisions in the history of the Supreme Court, does at least make people want to talk about that. And it concerns me, because the court is being reckless. But I am loath to do it."

Sen. John Kerry (D-Mass.) this week came out in support of a constitutional amendment to overturn the decision, and President Barack Obama and New York Sen. Charles Schumer (D) have both vowed to push legislation to blunt the decision's impact.

This ranks right up there with Feingold voting to confirm John Roberts.

[wyldwolf]

1. Russ, I'm confused as to how such an amendment would change the Bill of Rights.

[Kurt_and_Hunter]

9. Well, it would change the First Amendment.. (That's part of the Bill of Rights)

Pretty basic.

[NJmaverick]

12. No it wouldn't change the Bill of Rights

it would just clarify that corporations are not people.

[ProSense]

14. Exactly, this is a bogus concern.

The SCOTUS ruling should never be allowed to happen again. Period.

[onenote]

16. that would, in effect, change the bill of rights

Did you like the court's decision that the first amendment protected Hustler magazine from Jerry Falwell's defamation suit?
Did you like the court's decision that the first amendment protected the NY Times and the Washington Post from an injunction that would have barred them from publishing the Pentagon Papers?

If you do, then you better come to grips with the idea that corporations have first amendment protections. While I have been generally supportive of the idea of a narrow amendment allowing the courts to regulate spending by corporations with respect to elections/ballot initiatives, I have to admit that Feingold's position makes some sense as well.

[rfranklin]

18. Those are Freedom of the Press cases and have nothing to do with...

corporate personhood.

[Kurt_and_Hunter]

20. Wrong on two counts

First, the fact that a corporation has standing in a freedom of the press case flows from corporate-person-hood, as does the ability of a corporation to enter into contracts.

Second, the decision you are referring to did not establish corporate person-hood.

[ProSense]

24. Stop defending Feingold's logic. It's bogus.

This is the kind of stupid discussions that always happen when people try to rationalize other people's quirky decisions.

This discussion is already reminding me of the tax on bonuses, which most Constitutional scholars deemed OK, but some were so determined to make it about Democrats and Obama. Now that the fuckers are giving away money like water everyone is acting like they never opposed taxing them.

[rfranklin]

29. I want an amendment to bar corporate personhood...

I apologize if I was paying no attention to Feingold.

[Kurt_and_Hunter]

46. I'm with you

:hi:

[NJmaverick]

30. The first Amendment specifically mentions the press

while it doesn't mention corporations.

[harkadog]

75. It doesn't mention TV, radio, films or the internet either

So what.

[rfranklin]

37. I just went back and read New York Time vs. U.S. and I just can't..

find anything in there referring to corporate personhood or contracts. "Newspaper" is the operative word in the decision and there is nary a reference to corporations.

[onenote]

39. try looking at the title of the case: New York Times, INC.

The action was brought to defend the first amendment rights of a corporation. If corporations don't have any such rights, the case doesn't stand.

[rfranklin]

42. I actually read what the Justices said...

and they talked about "newspapers." You don't need to be a corporation to publish a newspaper.

[Kurt_and_Hunter]

47. The rights are not exclusive to corporations

A newspaper cannot be censored, whether published by an individual, an association, a corporation, etc.

The only real significance of person-hood in that case is having the standing to sue at all.

Campaign finance gets into a tricky two-rights territory: expressive and political.

Of course the New York Times can print what it wants and even endorse candidates, but it cannot vote.

Is a campaign donation expressive, associative or some special category of political action open only to entities that can vote?

This stuff is quite tricky.

[NJmaverick]

43. The first Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

[onenote]

58. exactly. And how do you define "the press" today?

what exactly is the press? Presumably its a newspaper. Is it a movie or other video content? Is it a blog on the Internet? If you think about the future, in which most content will be delivered over the internet, how exactly would a restriction that distinguished between a corporation and "the press" work?

[onenote]

38. Thank you.

I think your post is first one I've seen that makes the point that the protection that the press enjoys from state-enacted laws of censorship etc. arises because the courts have found that the term "persons" in the due process clause of the fourteenth amendment encompasses a corporation. Without that ruling, the first amendment only protects the press against action by the United States Congress.

[Kurt_and_Hunter]

48. And that expansion of rights vvia the 14th amendment is called, irronically, incorporation

[onenote]

33. you couldn't be more wrong, particularly about hustler v falwell

A little constitutional law:

The Bill of Rights, and specifically the First Amendment, are by their terms, restrictions on action by the federal government. To quote: "Congress shallmake no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press...."

Prior to the ratification of the Fourteenth Amendment, it was settled law that the First Amendment did not restrict the states from enacting legislation or taking other actions that would be impermissible for Congress to take under the First Amendment. It was only after the Fourteenth Amendment was ratified that the Court, through the doctrine of "incorporation" began finding that various elements of the Bill of RIghts were part of the "liberty" guaranteed to "persons" by the due process clause of that amendment: ("nor shall any State deprive any person of life, liberty, or property, without due process of law..."). Indeed, it wasn't until 1931, in Gitlow v US, that the SCOTUS finally held that the "freedom of the press" clause in the First Amendment applied to the states through the due process clause. But since the due process clause on its face talks only about not depriving "persons" of their rights, that result only could be reached with respect to a part of the press that is corporate in nature if the word "persons" as used in the fourteenth amendment was read to include corporations. That, in fact, is what the clerk's headnote in the Santa Clara case was about -- whether the term "persons" as used in the due process clause of the fourteenth amendment, encompassed corporations.

So, in order to apply the first amendment to block an action brought under state law, as was the case in the Falwell/Hustler litigation, you need to apply freedom of the press to a corporate entity.

Admittedly, the Pentagon Papers case is different because it involved a federal injunction so you don't need the incorporation doctrine. (But you would have the same issue and the same need to recognize that corporations are persons under the fourteenth amendment if it had been a state-issued injunction). In any event, saying that the Pentagon Papers case involved the freedom of the press not freedom of speech, and thus its alright for it to protect corporate "press" speech merely points up something that Justice Stevens and numerous others have acknowledged: it is increasingly difficult to determine what speech is "press speech."

[NJmaverick]

45. Do you realize the amendment can address your concerns that the 14th amendment doesn't apply to the

press, don't you?

[NJmaverick]

31. Freedom of the press is spelled out in the first amendment

freedom of corporate $$$$ is not

[Kurt_and_Hunter]

53. That does not refer to what we call "the press"

It isn't about a journalistic social institution called "the press."

It's the printing press.

Had they said, "the freedom to publish shall not be abridged" it would have been a little neater and may have obviated a long series of decisions expanding the right to new media.

The Constitution is far from flawlessly written but the intent there is clear.

(I would hate to have the artistic rights of painters described as "freedom of the brush" but here we are...)

The First Amendment is a series of limitations on government. The people are presumed to already have the rights. The Constitution secures those rights against the government.

So the First Amendment is saying that Congress (later encompassing all government) cannot abridge the freedom to publish.

The holder of the right being secured is vague, and probably intentionally so.

[Kurt_and_Hunter]

19. Are you referring to the OP?

The OP refers to overturning a decision.

The decision being discussed did not establish that corporations have person-hood.

The decision IN QUESTION was decided on first amendment grounds.

You are probably (giving you the B of the D) saying that you want an amendment to overturn Santa Clara County v. Southern Pacific Railroad, which is not the decision being discussed.

If you want to overturn Santa Clara by amendment then have at it but since that wasn't the question Feingold was answering you're arguing with air.

[rfranklin]

17. No, no, no...an amendment barring personhood to corporations would not...

Our Founding fathers were sceptical of corporations and thought they had put reins on them by making them subject to review and renewal of their charters.

It was only after the Civil War that corporate lawyers worked incessantly and successfully to give corporations personhood and the rights of persons, hijacking the Fourteenth Amendment for their own venal interests.

[Kurt_and_Hunter]

23. Is this thing on? Let's try this again...

Feingold was not referring to an amendment to overturn Santa Clara County decision (1886)

He was referring to an amendment to overturn Citizens United v. Federal Election Commission (2010).

If you want an amendment to overturn Santa Clara (which you do, whether you realize it or not) then don't say you want an amendment to overturn the recent decision.

This is simple. The recent decision said that people can fund political movies if they want. Is that what you want to overturn?

It did not establish that corporations are people. That was established ages ago.

If you want to overturn that then go for it but please stop saying you want to overturn Citizens United v. Federal Election Commission.

Overturn has a meaning.

[rfranklin]

27. You are right...I was off on another tangent which is where we should all be...

The problem is corporate personhood.

[Kurt_and_Hunter]

44. This issue was primed to create friction

The decision seems to have been the first time a lot of folks found out that corporations have constitutional rights so two different issues got jammed together... a lot was written on the internet saying that the SCOTUS had just given person-hood to corporations.

If a person had never encountered the concept it sounds outrageous. It IS outrageous.

But it's not really a campaign finance issue. The campaign finance stuff flows from the deeper doctrine.

So yeah, get the thing at the root.

I am all on board for limitations on corporate rights and always have been.

[NJmaverick]

32. The Amendment being discussed to overturn the decision

is one that eliminates the concept of corporate personhood. You need to have very carefully worded amendments. So you don't write one over one issue, but rather you eliminate the fundemental flaw. In this case it was the justices claiming personhood for corporations so they could get equal protecion as citizens.

[onenote]

35. I'd be careful about asking for an amendment to overturn Santa Clara

as described in a previous post, if corporations are not deemed to be persons under the due process clause of the fourteenth amendment then the first amendment's protections for speech and for the press don't apply to the application of state laws or regulations against a corporation (which was the situation before the fourteenth amendment was ratified). Falwell's suit against Hustler? It would not have been invalidated on first amendment grounds if hustler inc wasn't a "person" for purposes of the fourteenth amendment. Same goes for various other first amendment cases striking down state laws censoring books, movies, magazines, etc etc.

[NJmaverick]

41. You are not taking into account that the "Press" is specifically mentioned in the first Amendment

unlike corporations which the framers decided didn't deserve those rights.

[onenote]

74. you are not taking into account that the first amendment only applies to the federal government

and that it restricts states from acting as censors only because of the 14th amendment which applies to "persons". Since a newspaper isn't a "person", it requires interpreting the term persons to be broader than just natural persons in order for the Court to be able to protect Hustler INC from state censorship laws or from Jerry Falwell's lawsuit

[Kurt_and_Hunter]

56. You are right, and it's all very tricky

My Santa Clara comments were to draw the issue... that if one is concerned with person-hood it's pretty weird to focus on the 13,456th case to rely on the doctrine.

I would probably be looking to overturn Santa Clara only as it applies to some very narrowly defined "x"

This whole issue is a headache... the problem isn't so much corporate rights as corporate power and scale which are practical realities and almost an independent consideration.

Some folks would probably sign onto an amendment stripping corporations of all person-hood and then be surprised to find that they could no longer enter into a contract with a corporation!

[Vincardog]

40. No we need to amendment the 14'th amendment to make it clear that Corporations are not people. We do...

have to touch the 1'st.

[onenote]

57. if the fourteenth amendment does not apply to corporations

what in the constitution, as now written, prevents states from censoring the press? Keep in mind the first amendment by its terms only restricts the US Congress. The only thing in the constitutino that keeps states from censoring the press is the due process clause of the us constitution, which applies to persons.

[Vincardog]

66. Are you are worried about the states restricting freedom of the press? Is that your argument to

make corporations 'Persons'?

[onenote]

69. my argument is that it was the decision to make corporations persons

as that term is used in the Fourteenth Amendment that results in the application to the states of the first amendment rights of free speech and free press. When the Supreme Court strikes down a state censorship law as applied to an entity that is not natural person, such as a company that makes or exhibits movies, or a book publisher or a book store that is a corporation (or a magazine like Hustler), it does so through the fourteenth amendment which by its terms guarantees the liberty of "persons". If that term doesn't encompass more than natural persons, then the states are left free to run wild over first amendment values.

[Vincardog]

80. Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Why is it necessary for corporations to be people?

[NoNothing]

2. I just don't understand Feingold at all

Does his willingness to stand on principle only apply to hopeless causes?

[harun]

26. Me either. If he came out and didn't support it because it is a waste

of time, I would agree. No way an constitutional amendment gets passed for just this one case. But his reasoning is silly at best.

[MBS]

3. yup, both these Feingold decisions are equally strange

(not to mention totally frustrating .)

[T Wolf]

4. So, he likes the decision. Because if it is not negated by an amendment, any law passed by his

group (Congress) would run into that Supreme Court blockade.

In effect, by challenging the only way to undo it, he is saying that the decision should not ever be changed.

[Kurt_and_Hunter]

15. No, he is not.

To overturn a SCOTUS interpretation of the Constitution requires one of two (2) things:

1) An amendment to the constitution, or

2) Five votes on the court deciding to overturn it.


This issue has provoked some of the most extreme hyperbole I've ever seen on any political topic.

[joeybee12]

5. I actually agree...legislation is better for this...eventually, one hopes,

we'll have non-morans on the SCOTUS and this will be overturned.

[LaydeeBug]

6. well if a stopped clock is right twice a day, I guess Russ got two wrong in his career. nt

[RUMMYisFROSTED]

7. "I think it's very unwise to change the Bill of Rights for any purpose..."

So the rest of the Amendments are bullshit?





Oh, The Hill! :rofl:

[DJ13]

8. Is he worried that a tough stand might upset the corps into supporting an opponent?

If thats the case, doesnt that speak volumes about the danger the USSC ruling resulted in?

[Mass]

10. Which proves that even the best ones are wrong once in a while.

He is still one of the best ones in the Senate, though.

[Blue Owl]

11. If there's a better way to overturn it

then let's move forward with that way.

However, sometimes desperate times call for desperate measures...

[NJmaverick]

13. This is messed up Senator Feingold

you need to rethink your position.

[grantcart]

21. Constitutional Ammendments require 3/4 of the states to agree

This is why most talk about CA are just wasted effort.

There is no way that 35 states are going to back this ammendment.

[NJmaverick]

25. Just because it would be difficult is no reason not to support it

[harun]

28. It would be more than difficult. Wish he would have just said he doesn't

support the effort because it is wasted effort that could be used in other areas.

He should come out and introduce an amendment that calls for:

*) A clear separation of Corporations and State.

Let the courts interpret that as they may.

[grantcart]

34. You would have to get all of the blue and border line states and

Eleven of the following states - (none of whom I believe would come close to passing it)

Alaska, Idaho, Wyoming, Utah, Oklahoma, Mississippi, Alabama, Texas, Nebraska, North Dakota, South Dakota, Kansas, Tennessee, Kentucky, Indiana, Missouri, Arkansas, North Carolina, South Carolina, Montana, New Hampshire, West Virginia and Virginia.


The Equal rigthts ammendment, something that isn't really controversial, failed to achieve passage.

[Arkana]

22. Why? He's got a history of supporting campaign finance reform.

I don't understand this move from Feingold.

[wisteria]

36. I disagree with him on this. n/t

[MessiahRp]

49. I love Russ but he's dead wrong on this...

He's my Senator and I plan to call him out on this.

Rp

[progressoid]

50. Doesn't matter. This is a no-go anyway.

[Cha]

51. So the damn 5 on scotus get to sell this

country down the river?

Can it be overturned if we get another SC Judge who cares more about the people than the corporations?

[stray cat]

52. You want Feingold to eliminate the Bill of Rights?

[Gregorian]

54. Reccommending. And thanking the great DU'ers who steer the discussion logically.

I'll admit I was confused. Corporations should not be considered people. That's where we have to pull the plug.

[brentspeak]

55. Feingold completely wrong on this, but somehow I get the feeling the OP

isn't exactly on the side of wanting any such amendment passed.

"This ranks up there with Feingold voting to confirm John Roberts."

Like the charlatans who post centrist/corporatist crap on DU while adopting Noam Chomsky and RFK avatars, you're not fooling anyone, OP.

[ProSense]

64. You make no sense. n/t

[Phoebe Loosinhouse]

77. What is his solution for the "lawless" decision? nt

[Lord Helmet]

59. I think he's wrong on this.

[ladywnch]

60. forget overturning SCOTUS.......pass legislation stripping corporate "personhood"

then the SCOTUS decision becomes moot.

[onenote]

62. and so does the application of the first amendment to state laws censoring movies and

newspapers etc.

The Citizens United decision needs to be fixed, but those proposing to do it through some blunt instrument attacking the concept of corporate personhood generally don't understand the full ramifications of such a simplistic approach. Its a more complex issue that needs a more nuanced approach.

[ladywnch]

81. please enlighten me.

you don't think a constitutional amendment to rewrite/regulate free speech isn't a blunt instrument? Corporations are NOT people and were never intended to be. I don't doubt that there is much that needs done but corporate personhood was a mistake the minute is was conferred. It may not fix everything wrong with the military/industrial complex but it's a good start.

[ohiodemocratic]

61. If we change it, wingnuts will try to change another part, then we'll try again

then they'll try to change something else, then we'll try to change something else, and it will become a joke.

[ProSense]

63. Are wingnuts in control of the Senate?

The day wingnuts control the government you can make that argument, and this will be a very different country.

[ohiodemocratic]

70. I'm talking about the future

If we change it now then the wingnuts will feel entitled to change it whenever they next control Congress.

By the way, controling congress is not enough to change the constitution. It takes 67 Senators and 2/3 of the House to do it, and if Feingold thinks it's a bad idea imagine the Blue Dogs.

[cadmium]

65. I'm glad you mentioned that he voted for Roberts.

He voted for Gonzalez and Condeleeza Rice too --- at the time saying that the president deserved to have the people in place that he wanted. This makes his vote against Bernanke a little hypocritical; especially considering that this suggests that he was likely to support a Republcans president's prerogative than a Democratic president's. He is a great senator, but he has his faults and he is wrong on this.

[mochajava666]

67. Russ makes me scratch my head occasionally

Feingold just lived down the street from me in Middleton, WI in the 80's, so I've followed him a long time. Throughout his career, dating back to when he was a state congressman he's had a long history of doing his own thing. Sometimes unexplainable, but most of the time I knew where he was coming from even if I didn't agree with it. This one baffles me, and I await some further clarification.

I have no doubt about his strong belief that money has poisoned democracy. I also don't think that he can be bought, because he is no hypocrite. On the other hand, I have no idea what he's thinking right now with that weak explanation.

[bbgrunt]

68. not only did he vote for Roberts, he also voted to approve Ashcroft.

[ohiodemocratic]

71. He voted against the Iraq war tho

in 2002. Many people died in that war.

[autorank]

72. Is there anyone in that institution with a brain.

What Constitution? It's been trashed. How can you preserve something that's not there.

did it escape these asshats that it's now policy to kill US citizens overseas based on the
defnition of terrorist by whom? The administration's appointees.

Rearranging the deck chairs on the Titanic. Pathetic.

[Faryn Balyncd]

73. Establish a NEW form of "non-personhood" corporate status. Then TAX all corporations retaining....

.....the "personhood" corporate status (as defined by SCOTUS) as persons. Only give the preferential tax treatment now given to corporations to entities which opt to organize as "non-person corporate entities."

[harkadog]

76. The non-personhood corporations would be unable

to sue or be sued. Personhood gives us the right to sue them. That is how the law works.

[vaberella]

78. I give up trying to understand anyone in Congress or formerly in Congress.

At this point, they're all attention whores and I'm done with them. I don't get Feingold, I don't get Koochie, I don't get Dean, I don't get Lieberman, I never got the Repubs. Everyone is everywhere.

[Nicholas D Wolfwood]

79. Feingold is a slightly diluted Kucinich.

Meaning, the only thing he's ever in for is himself.