by Lachlan Markay • The Federalist
Tom Steyer wants to amend the U.S. Constitution to allow the government to regulate religious sermons, tap the phones of the American Civil Liberties Union, seize phone record and Internet search histories on a whim, and give bureaucrats veto power over the content of The New York Times.
If that sounds like hyperbole, you need only read the text of Proposition 59, the California ballot measure Steyer endorsed last week. Billed as an attempt to roll back the Supreme Court’s Citizens United decision, the measure is actually far broader and more dangerous: it seeks to eliminate all constitutional rights for incorporated entities—for-profit companies, but also nonprofit groups, labor unions, charities, churches, and any other association given an official government imprimatur.
Steyer has focused of late on the ostensibly pernicious effects of money in politics as he pours more money than any other individual into federal elections. But for all of Prop 59’s focus on Citizens United, it never even mentions the separate Supreme Court case that has allowed Steyer to almost single-handedly finance one of the wealthiest political groups in the country.
“The United States Constitution and the Bill of Rights are intended to protect the rights of individual human beings,” declares California Senate Bill 254, which placed Prop 59 on the ballot. “Corporations are not mentioned in the United States Constitution, nor have we decreed that corporations have rights separate from ‘We the People.’”
People in Groups Lose Their Rights
Put simply, SB 254 says, “Corporations should not have the same constitutional rights as human beings.” Those rights, as we know, include not just the right to free speech that produced the Supreme Court’s 2010 decision, but also rights to due process, a jury trial, and freedom from unreasonable searches and seizures.
Prop 59 calls for the California legislature to back a constitutional amendment eliminating those and all other liberties in the Bill of Rights for incorporated entities. It proposes to overturn not just Citizens United but all “other applicable judicial precedents,” including court rulings that applied constitutional rights to incorporated entities.
The legal definition of “corporations” includes not just for-profit entities but non-profits, charities, labor unions, churches, and virtually every other association recognized under the law. It’s worth considering, then, what sorts of activities would be permitted if, unlikely though it is, Steyer got his way, the ballot measure passed, and the Constitution were amended in the manner SB 254 spells out.
Corporations—which, again, include far more than just profit-making enterprises—would no longer have rights against unreasonable searches and seizures. If a government entity decides that it wants some piece (or every piece) of information from the ACLU, to use a particularly illustrative example, it could tap the group’s phones, monitor its digital communications, bug its offices, conduct random and sweeping physical searches, and otherwise pry into the most sensitive details of its work, all without obtaining a warrant or any other legal justification. As an incorporated entity, the ACLU no longer would have any constitutional rights, so all of its property and communications would be fair game.
Churches and religious organizations are, by and large, incorporated entities. Under Prop 59, those entities would no longer enjoy First Amendment freedoms, meaning the government would be free to regulate religious worship, teachings, sermons, and educational and charitable endeavors. As officers of incorporated entities, clergy could be barred from expressing their faith in an official capacity if Congress or a presidential administration disapprove.
The government could seize any corporate assets it desires. The Sixth Amendment’s protections against the seizure of property without just compensation would no longer apply, so the next time the National Security Agency wanted a full and complete accounting of your cell phone calls, your Google search history, or your credit card purchases, all it would have to do is take that information from the relevant company. Of course, any corporate property would now be government property the minute the bureaucracy decides it is, meaning every media company in the country must surrender its printing presses and video cameras if the government decides it wants them.
A Full Assault on the Press
That gets to perhaps the most pernicious effect of Prop 59, if it were implemented in full as spelled out in SB 254. In high-minded tones about the importance of democracy and political integrity, it proposes effectively destroying the First Amendment. Under the banner of political participation, Steyer and his fellow supporters would make it legal for the government to censor at will the contents of America’s political press.
The First Amendment would no longer apply to the parent companies of the New York Times, Washington Post, Des Moines Register, the East Hampton Star, CNN, Fox, MSNBC, all three news networks and their local affiliates, National Public Radio, PBS, the Huffington Post, or The Federalist. If a U.S. president decides he doesn’t like the content of their reporting, his bureaucracy would be constitutionally permitted to shut them down or, if he’s in a charitable mood, strike a story or two from their reporting.
Prop 59’s proposed assault on the political press is nothing novel for those who have followed the political drama over corporate political spending in the wake of the Citizens United decision. That decision struck down laws limiting nonprofits’ ability to spend money on speech that criticized a politician during an election season.
The court rightly noted that it is precisely that type of speech—discussing public servants, often in critical ways, as the general public weighs whether they deserve support—that the First Amendment is designed to protect first and foremost. Efforts to roll back Citizens United, while rooted in legitimate concerns about corruption and the integrity of elections, are nevertheless coming down on one side of a particular question: should the government try to maximize speech at risk of tainting elections with special-interest money, or should it attempt to restrict that money at the expense of a vibrant national political debate?
That is a question worthy of nuanced debate. But Prop 59 and Steyer’s support for it reveal an uglier side of the campaign finance debate. Frequently touting the slogan “corporations are not people,” these sorts of efforts would have radical and disastrous consequences for American democracy. Prop 59 would not just limit corporate political spending on elections, it would exempt wide swaths of American society from any constitutional protections whatsoever, subjecting millions of civic, religious, financial, charitable, and educational associations to the whims of bureaucrats and politicians, who would be free to trample on rights their members no longer enjoy simply by virtue of their association.
Are you worried about either Donald Trump or Hillary Clinton winning November’s presidential election? Well, now imagine what your disfavored candidates would do with the power bestowed by Prop 59’s constitutional amendment.
This Wouldn’t Actually Get Big Money Out of Politics
For all of the measure’s perhaps unintended consequences, there is one type of organization that would not be affected by rolling back Citizens United: the billionaire-funded super PAC.
Many Americans believe Citizens United is responsible for the super PAC. In fact, that distinction falls to another Supreme Court case, Speech Now vs. FEC, that is not mentioned in the text of Prop 59 or SB 254. Speech Now struck down limits on the amounts of money individuals could donate to groups that spend unlimited sums to elect or defeat a candidate, as long as those groups don’t coordinate with candidates themselves.
Citizens United allowed corporations to donate to such groups, creating a system whereby these groups could solicit limitless funding from corporate entities to spend on explicitly political activity. Overturning Citizens United would eliminate corporations’ abilities to finance super PACs, but extremely wealthy individuals would still be allowed to finance these independent expenditure groups to their hearts’ content.
It just so happens that Steyer is doing exactly that. He’s donated $38 million to his personal super PAC, NextGen Climate Action, so far this cycle, on top of the $72 million he contributed ahead of the 2014 midterms. The group has reported a few donations from labor unions, but Steyer has provided nearly 100 percent of funding for the group. If Citizens United were rolled back, he could continue doing so, even as high-dollar super PACs with which he often clashes, such as the U.S. Chamber of Commerce, would be hobbled considerably.
Steyer frequently proclaims his distaste for money in politics, but Prop 59 would leave his political operation nearly untouched. The real damage would be done to America’s political press, civil society, and every individual who decides simply to exercise his or her right to freely associate with others.
In fact, they won’t have that right either, if Steyer and company get their way.