They had waited for hours, through discussions of routine municipal business like the naming of a City Hall, acquisition of property and expenditures of tax dollars.
Then, near the end of Tuesday’s Key West City Commission meeting, the people with the “Occupy” T-shirts got what they were waiting for. Commissioners passed a resolution condemning the concept that corporations have the same rights as people, as well as a U.S. Supreme Court decision interpreted as upholding that concept.
By doing so, the city memorialized a formal opinion on behalf of its citizens that now links it to the aftermath of a historic and controversial court decision, which partisans on both sides agree is one of the most important rulings concerning free speech in many years.
But the resolution also states a claim that some free-speech advocates find chilling, rejecting a court decision that affirmed that people gathered into a group — in this case, a corporation — may have their voices restricted in that context.
Supporters of the resolution maintain that the spectre of unchecked corporate spending in political campaigns justifies regulation to protect the voices of individual people from being drowned out.
“This is a perfect Key West ‘One Human Family’ type of statement,” grief counselor Elisa Bishop Becker said when she urged commissioners to pass the resolution, referring to the island’s motto. “I don’t have anything against Kmart or Sears, but I wouldn’t invite them to dinner or a commission meeting or to vote.”
The Rev. Randy Becker of Key West’s Unitarian Universalist Church told commissioners they had an opportunity to make a stand similar to the founders of the nation, the framers of the Constitution.
“It gave to people the rights of assembly, freedom of religion, freedom of speech and of the press, given to people so that the mistakes that had been so evident in the imposition of the colonies would not happen again. Special interests, corporate interests, royal interests, would not have any more rights than one citizen,” Becker told commissioners. “Now you get to be in the seats like those patriots long ago, to say yes, that is the principle on which this country was founded. It is not corporations that are the people, but we the people.”
The resolution, as passed, is an ambitious four-page manifesto; its words echoing those in the cornerstones of U.S. nationhood, with its affirmations that “free and fair elections are essential to democracy and effective self-government,” that “persons are rightfully recognized as human beings whose essential needs include clean air, clean water, safe and secure food” and that corporations are “entirely human-made legal fictions created by the will of the people, and therefore not entitled to the rights that people are guaranteed under the Constitution.”
Passage of the resolution places Key West in league with 59 municipalities nationwide and 28 states that have made similar official statements. It calls on other jurisdictions to join, and condemns the U.S. Supreme Court’s decision in Citizens United v. the Federal Election Commission. More specifically, it expresses support for an amendment to the U.S. Constitution that would declare all rights embodied within that document as those of “natural persons only.”
“Artificial entities, such as corporations … shall have no rights under this Constitution and are subject to regulation by the people, through federal, state or local law,” states the proposed amendment, crafted by Move To Amend, a grass-roots group based in Eureka, Calif., that’s closely aligned with people supporting the nationwide Occupy movement.
Money, as used in political contributions and other ways designed to impact public policy, is not speech and therefore can be regulated, Move To Amend adherents state.
The Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission invalidated provisions of a law restricting spending money on political campaigns by corporations and unions.
Section 203 of the Bipartisan Campaign Reform Act, signed into law in 2002, violated the First Amendment with its criminal sanctions against corporations or unions spending money on “electioneering communications,” the divided court ruled in a 5-4 decision. Electioneering communications was defined in the law as “a broadcast, cable or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary.”
Key to the law the court overturned is the idea that shareholders of a corporation or members of a union who might disagree with the corporate political message would have their dollars used in a way that would spread a political message of which they might not approve or wish to be a part.
Supporters of the decision said it upholds a sacred provision with a long line of case law behind it: that the government has no right to regulate political speech.
Justice Anthony Kennedy wrote the majority opinion, and was joined by Chief Justice John Roberts, along with Justices Antonin Scalia, Samuel Alito and Clarence Thomas. A blistering dissent was written by Justice John Paul Stevens, joined by Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor.
At the heart of the dispute was a documentary film called “Hillary: The Movie,” produced in 2008 by Citizens United, a conservative nonprofit corporation, that was released during the presidential primaries of that year. The Federal Election Commission determined the film fell afoul of the law’s corporate provisions, and sought to block it from being televised within 30 days of the 2008 Democratic primaries. A Washington district court judge obliged, and Citizens United appealed.
The Supreme Court’s majority opinion maintains that First Amendment rights have long been established as applying to corporations. The provisions of law used against Citizens United, the ruling states, unconstitutionally prohibited speech by people gathered into an association, in this case the nonprofit corporation.
“If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech,” Kennedy wrote.
The dissenting opinion by Stevens, which was quoted during the Key West City Commission meeting and in the local resolution, was passionate. The majority, he wrote, had options other than striking down the law at its disposal. Citizens United had options other than direct financing of the film, such as use of its Political Action Committee (PAC), Stevens reasoned. A portion of Stevens’ argument could be summarized as throwing the baby out with the bath water, or tearing down an entire wall because of a few defective bricks.
“In a democratic society, the longstanding consensus on the need to limit corporate campaign-spending should outweigh the wooden application of judge-made rules,” Stevens wrote. “At bottom, the court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics.”
Tuesday’s resolution now places Key West squarely on the side of Stevens’ dissent.
The lone opponent of the resolution, Commissioner Mark Rossi, gave his nay vote without discussion. Interviewed later, he said, “I believe America is not a country where speech should be punished.
“We are entitled to, if nothing else, our freedoms. I figured the Supreme Court ruled on it and they are smart people.”
While it is clear that supporters of the Key West resolution had big global corporations in mind as the targets of their ire, some nationally recognized legal scholars say the Citizens United decision will have little effect on GM or British Petroleum.
Richard Epstein, a New York University law professor who has lectured and written extensively on the Citizens United case, maintains that big corporations are not the driving players in the outright political type of speech that the decision now allows, and that large corporate gifts by Fortune 500 companies will continue to be enabled by super PACs.
Regardless of such complexities, Key West commissioners maintain they made the right vote when they passed the resolution, for the right reasons. Commissioner Clayton Lopez, who sponsored the resolution, said its message is quite clear.
“We have to look at the fourth ‘whereas’ in this resolution, which says ‘whereas corporations are entirely human-made legal fictions created by express commission of we the people and our government,’ ” Lopez said. “We have only to look at two of this nation’s most important documents and the statements in both those documents — the Constitution and the Declaration of Independence — they both begin with “We the people endowed by their creator.”
Commissioner Tony Yaniz commented on the sacred privilege that is the right to vote, stating “that is one that should be the exclusive domain of breathing human beings, period.”