Citizens United resolution moves closer to vote by Winston-Salem council

Tony Ndege of Occupy Winston-Salem urges members of the general government committee to approve a resolution calling on Congress to overturn the 2010 Supreme Court decision in Citizens United v. Federal Election Commission. 

The Winston-Salem City Council will consider a resolution next Monday calling on Congress to amend the US Constitution to establish that "only human beings, not corporations, are endowed with constitutional rights protected by the First Amendment" and that "money is not speech under the First Amendment and therefore regulating political contributions and spending is not equivalent to limiting political speech."


The resolution was approved by a 3-1 vote tonight by the general government committee following an amendment moved by Councilwoman Denise D. Adams to strike a reference to the US Supreme Court declaring "corporations to be persons" in the 2010 Citizens United v. Federal Election Commission decision, based on an objection by Councilman Dan Besse that the statement was not factually accurate.

Councilman James Taylor Jr., who brought the original resolution to council at the urging of Occupy Winston-Salem, reluctantly agreed to the amendment. The amended resolution passed with support from Taylor, Adams and Councilwoman Molly Leight, while Besse voted against it. 

City Attorney Angela Carmon concurred with Besse's reading of the Citizens United decision.

"I don't believe the decision declared corporations to be persons," she said. "I believe it declared corporations to be entitled to the same First Amendment protections as natural persons."

After the meeting, Besse circulated an alternative resolution stating that the Supreme Court's rulings "that unlimited spending by non-candidates in efforts to influence the outcome of an election cannot be regulated" and that corporations cannot be regulated as a class distinct from natural persons should be overturned.

City Attorney Angela Carmon told council members that amendments from the floor at next Monday's meeting are permissible. But Montgomery warned that his colleagues should be cautious about entertaining amendments lest the consensus around the resolution unravel and the matter wind up getting sent back to committee. 

"I believe we should send a clear message to the federal judicial branch to let them know that elections should not and will not be bought in this country, in this state and even in this city," Taylor said. "There are hundreds upon hundreds of cities all across the country that stand with us. It isn't just me presenting this. I represent some people who are here today, who I believe are going to speak. This is a grassroots movement. It isn't just us. There are hundreds of cities across the country, and even cities in this state that have approved the resolution calling for an amendment to the Citizens United decision. Those major cities in North Carolina are Greensboro, Durham, Raleigh, Chapel Hill, Asheville and Greenville."

Kim Porter of Occupy Winston-Salem said about a thousand Winston-Salem residents have signed a petition supporting the resolution, including NC Sen. Earline Parmon, NC Rep. Ed Hanes Jr., Winston-Salem NAACP President Wayne Patterson and former Councilman Larry Little, and 300 other North Carolinians from outside of the city also signed on.  

"When you give money free speech, you give corporations a much larger megaphone than, say, I could," said Adam Price, a resolution supporter who said he is currently homeless. "I don't have as much money. What does my voice count in a democratic system where my voice should count if I don't have as much free speech as the next guy. If we turn money into a form of free speech, then we now have a higher system of the amount of free speech than each person will be able to attain in their lifetime. I'm not going to be a millionaire -- I'm not going to say that -- but I'm probably not going to be a millionaire. But if money is free speech, then that millionaire has a million more free speeches than I do. One man, one vote, and if you support that -- support that democratic view of one man, one vote, you'll push this. Let's do this. Let's take it from the ground up. City Hall to Supreme Court. Let's do it. Come on, guys."

Besse has long opposed the resolution, arguing to colleagues that it is not an appropriate area for city council to get involved and that denying corporations the rights of personhood could have the unintended consequence of preventing groups of people from coming together to advance their interests.

"I voted against the resolution because I don't like the way it handled the corporate personhood issue and because it fails to address some of the problems in the Citizens United decision," he said after the meeting. "I think that Move to Amend and other groups like them take the wrong tack on the Citizens United case. It addresses a related issue and fails to address the fundamental issues of the Citizens United decision. I expect to discuss the alternative resolution that I drafted for the city council on Monday evening and simply lay out the option. I think for those who want this it's best to tell them: 'If you want to see Citizens United overturned, this is a better call. I told my fellow council members we would bring it to a resolution next Monday night one way or another. Whether I'm on the winning side or not doesn't really matter to me."

Tony Ndege of Occupy Winston-Salem indicated that he was satisfied overall with the committee's handling of the resolution.


"I'm happy that this is moving along," he said. "I am very unhappy that the wording on 'corporate personhood' has been struck, but I'm happy that the language about moving to amend was left in. Whether or not they agree or disagree, the idea that the original intent of the First Amendment, with the Fourteenth Amendment and with the Bill of Rights were for natural persons -- that is the essential argument. And it also boils down to whether or not we choose to stand on the side of corporate power or on the side of people."

A progressive argument against anti-corporate personhood resolutions

Winston-Salem Councilman Dan Besse holds a reputation within the NC Democratic Party as a progressive. He ran for lieutenant governor in 2008 on a platform of public investment and environmental protection, but ended up splitting the urban vote with fellow progressive Democrat Hampton Dellinger in a Democratic primary that promoted the more moderate Walter Dalton to the office.

As a council member, Besse has consistently backed the city's efforts to renovate Union Station near Winston-Salem State University to reintroduce rail service to the Twin City. And Besse was the most vocal advocate on council for investment in a streetcar system to stimulate commercial development and provide a link an attractive transit link from downtown to WSSU and Hanes Mall in 2012, although the majority ultimately decided against a bond referendum considering the precarious state of the budget.

So it's a bit ironic that Besse has found himself at odds with Occupy Winston-Salem, first on the group's right to public assembly and now through his opposition to a resolution by city council calling on the US Congress to amend the Constitution to deny corporations the rights of natural persons. He told me in an e-mail today that he reached out to his fellow council members last week to share some information that he believes they ought to consider before moving forward, and that he's sensitive that his stance puts him "at risk of being misunderstood as anti-progressive."

Besse said he has taken a consistent position that city councils should limit their actions to matters that directly affect their mandated responsibilities. 

"Either we end up taking policy stances on issues on which we're poorly informed, or we have to put a great deal of research and development into topics on which we can effectively do nothing," he told me.

Besse told his fellow council members, City Manager Lee Garrity and City Attorney Angela Carmon that, putting aside whether this is a matter that should be consuming the council's attention, there are reasons for progressives to be cautious about endorsing an amendment to the Constitution to deny corporations the rights of personhood.

"The concept we are being asked to endorse on behalf of the city of Winston-Salem is a US constitutional amendment to make a broad-ranging change in the legal status of all corporations," he said. "That change involves key legal implications that go far beyond the campaign finance issues addressed in the Citizens United case."

As a reference to progressive arguments against a constitutional amendment, Besse provided links to an article by Kent Greenfield in the Huffington Post and one by Garrett Epps in the American Prospect.

Take-away from Greenfield:

Many cases important to progressive ideals were brought by groups, associations and corporations, not by natural persons. The case that saved Roe v. Wade in 1992 was Planned Parenthood v. Casey. NAACP v. Button was a crucial case to the civil rights movement. When Nixon wanted to quash the publication of the Pentagon Papers, it was the New York Times that fought to protect the public's right to know, in New York Times v. United States.  Rumsfeld v. FAIR, a case that challenged the Pentagon on Don't Ask Don't Tell, was brought by a non-profit corporation (which I founded and led), which had as its members other non-natural "persons" (universities, law schools and law school faculties).

Besse also posts a link to an NPR interview with John Witt, a professor of law and history at Yale University, who says this:

I don't think we'd want to end corporate personhood in the sense that ordinary people, including people in the Occupy Wall Street movement, may want to get together and form groups, which should have respect of the legal process. What we might want to do, and this is what the Occupy Wall Street folks have right, is recognize the different characteristic features of large groups invested with powerful amounts of capital in our political process.

The legal doctrine establishing corporate personhood is widely considered to go back to the Supreme Court's decision in Santa Clara County  v. Southern Pacific Railroad in 1886. Witt told NPR's Melissa Block that corporations are considered "metaphysical persons," meaning persons for some purposes but not for others.

"For example, a corporation can be prosecuted for a crime, which is something that usually only persons can be prosecuted for," Witt said. "But on the other hand, corporations get rights. They get rights to contract. They can't marry or run for office, but they can speak."

Besse said he expects his colleague, Councilman James Taylor Jr., to bring a resolution against corporate personhood up for a vote by council on Jan. 21.

"From a practical standpoint, there is also the question of whether a constitutional amendment is the most effective way to pursue change in this arena," Besse told his fellow council members. "My personal view is that it is not, given the rarity and extreme difficulty of success. Personally, I think the only realistic prospect for change in this area will come from new appointments to the Supreme Court who choose to return to a century of prior precedent in the area of campaign finance law — prior court decisions were precipitously overset by the Citizens United decision."