Jim McGovern’s flawed war
US Representative Jim McGovern, a Worcester Democrat, generated some unwanted controversy two years ago when he publicly declared: “The Constitution is wrong.”
The context was a discussion of campaign finance during a debate between McGovern and his Republican challenger, Marty Lamb. “A lot of the campaign-finance laws we’ve passed have been declared unconstitutional by the Supreme Court,” McGovern said. “I think the Constitution is wrong. I don’t think money … equals free speech. I don’t think corporations should have the same equality as a regular voter.”
Critics pounced, a minor storm erupted, and a day later McGovern took his words back. A slip of the tongue, he explained — he’d meant to say “court decision,” not “Constitution.” His problem wasn’t with the Bill of Rights, it was with the Supreme Court’s ruling in Citizens United v. FEC, which restored the right of corporations to engage in political free speech.
But McGovern’s problem, it turns out, is with the Bill of Rights. He objects to the way it safeguards fundamental rights — such as freedom of speech, freedom of the press, and freedom to petition the government for redress of grievances — not only when citizens act as lone individuals, but also when they unite as corporations in order to pool their assets and act more efficiently.
Like many on the left, McGovern has gone batty on the subject of “corporate personhood.” This is a perfectly commonplace, centuries-old legal construct that makes it possible for individuals organized as a group to carry out their affairs effectively. Because corporations are legal “persons,” for example, they can rent property without requiring the signature of every shareholder on every lease. They can be sued in court as single entities, without obliging plaintiffs to go after tens of thousands of individual defendants. They can be taxed. They can enter into contracts. They can register patents.
What infuriates many liberals is that corporations can also express political views, spending money to take sides in contested elections. “Corporations are not people,” scowled McGovern at a Democratic forum last week. “They do not breathe. They do not have children. They do not die in war. They are artificial entities which we the people create and, as such, we govern them, not the other way around.”
So the congressman proposes to strip corporations of all constitutional liberties and guarantees.
McGovern has introduced a “People’s Rights Amendment,” which would explicitly limit all rights protected by the Constitution to “natural persons.” All “corporate entities,” on the other hand, would be subject to any laws and regulations that lawmakers “deem reasonable.” At last week’s forum House Minority Leader Nancy Pelosi endorsed the crusade to exclude corporations from the Constitution’s safeguards.
It is hard to overstate how radical and dangerous the People’s Rights Amendment would be. It would overturn Citizens United, all right — along with much of the freedom Americans have always taken for granted.
Under McGovern’s proposal, corporations — for-profit and nonprofit alike —would have no more rights than legislators chose to give them. Congress could ban ExxonMobil and R.J. Reynolds from commenting on any public issue, and they would have no recourse to the First Amendment. But it isn’t only Big Oil and Big Tobacco that could be censored with impunity. So could Planned Parenthood and the National Rifle Association. So could the American Red Cross, Habitat for Humanity, and the Museum of Fine Arts. So could innumerable universities, charities, churches, small businesses, and government watchdogs. And so, of course, could most newspapers, magazines, TV networks, and book publishers. Corporations of every kind would lose their constitutional defenses. Vast swaths of American life would be permanently vulnerable to the whims and vendettas of politicians.
And what is true of First Amendment rights would be true of all the others: Protection against unreasonable searches and seizures, due process under law, the right to trial by jury — corporations could be stripped of them all.
McGovern and Pelosi may honestly imagine that mutilating the Constitution in this way will make American democracy more wholesome and less corrupt. What it would really do is empower the political class to a degree never before seen in our history. Far from reinvigorating the dream of the Founding Fathers, the People’s Rights Amendment would transform it into a nightmare.
“The Constitution is wrong,’’ McGovern said in 2010. Maybe so. But the alternative he proposes is far worse.
Jeff Jacoby can be reached at firstname.lastname@example.org. Follow him on Twitter @jeff_jacoby.