The sting of an icy wind and temperatures that dipped into the teens didn't deter a small group of protesters as they marched along the sidewalk across the street from the U.S. District Court in Detroit a few weeks ago.
There are people in their 20s and members of the group that call themselves the Raging Grannies. There's a lawyer and a real estate agent and a woman who does public relations.
What they have in common is the belief that American democracy has been hijacked by special interests with deep, deep pockets.
Dubbed Occupy the Courts, similar protests of varying sizes were taking place across America. The actions coincided with the second anniversary of a U.S. Supreme Court ruling that has opened the floodgates for political spending on the part of corporations, unions and wealthy individuals.
Along with clearing the way for the attack ads from so-called super PACs (political action committees) that have already played a key role in the run-up to this year's presidential election, that case — Citizens United vs. Federal Election Commission — has become the rallying point for a burgeoning movement that seeks to achieve something that has occurred only 27 times in America's history.
What these people marching through the cold and gloom of a Detroit winter's day want to do is amend the U.S. Constitution.
The changes they would make are both deceptively simple and extremely controversial.
In short, what they want the law of the land to say is this:
Corporations aren't people. And money isn't speech.
At this point, you might be thinking, "Isn't that obvious?"
And the answer is: Not to the U.S. Supreme Court.
Beginning in the late 1800s, the court has issued a series of rulings that, in essence, hold that corporations have many of the same inalienable constitutional rights as actual people.
(Ironically, it was the protections provided by the 14th amendment — passed in 1868 to help guarantee the civil rights of recently freed slaves — that lawyers for the railroads pointed to when arguing that they were being unfairly taxed by local municipalities.)
That line of reasoning, coupled with Supreme Court decisions that equate First Amendment free-speech protections to political spending, has sown the seeds for the insurrection that is beginning to foment.
Robert Reich, who served as U.S. Secretary of Labor under President Bill Clinton and is currently a professor of public policy at the University of California at Berkeley, summed up the situation this way late last year as various Occupy encampments across the country were being forced to pack up:
"A funny thing happened to the First Amendment on its way to the public forum. It was hijacked. According to the Supreme Court, money is now speech, and corporations are now people.
"Yet when real people without money assemble to express their dissatisfaction with the political consequences of this, they're treated as public nuisances — clubbed, pepper-sprayed, thrown out of public parks and evicted from public spaces."
The dots are there to connect. As wealth is concentrated at the top, the rich are able to spend more and more to help ensure our government is run by politicians who institute policies that primarily benefit the monied interests.
Which is why Detroiter Lou Novak was among the group of protesters taking part in the Occupy the Courts demonstration.
Amending the Constitution, he says, is vital.
"It strikes at the root cause of the problems we are facing," he contends.
Whether the issue is health care or home foreclosures, climate change or the crushing burden of loans facing college students, the bottom line is that corporations are able to protect their own interests while the rest of us are, symbolically, just like these protesters — left out in the cold.
No one — especially those who are pressing the idea of seeking a constitutional amendment — thinks it will be easy.
The Founding Fathers intended it to be incredibly difficult. (See side story about the amendment process and the reasoning behind it.)
As historian Mary Frances Berry observed in a piece she wrote for the New York Times about the failure of the proposed Equal Rights Amendment to be ratified during the 1970s and '80s, "change requires two elements: consensus and necessity.
"There must be substantive national agreement, as well as agreement in most of the states, that an urgent problem exists that cannot be remedied by the courts, legislatures or Congress, and which can be solved only if the Constitution is changed."
That, according to activists pushing the issue, is exactly where things stand. Even if it takes years to have an amendment approved by Congress and ratified by the states, they say we've reached the point where something as radical as amending the Constitution is the only course of action open to us.
Even if voters were able to rise up and put in office populist politicians with the spine to go against all that special interest money that fills campaign coffers and pays for independently funded attack ads, the fact remains that a conservative majority is likely to be on the high court's bench for years to come. So even when laws are put in place to limit spending or promote disclosure, they are likely to be overturned as unconstitutional.
It is not just lefty diehards like those who joined January's protest outside Detroit's federal court who are saying that America's electoral process is moving in the wrong direction.
Before the South Carolina primary, the nonpartisan Pew Research Center for the People & the Press polled voters to learn their opinion of Super PACs.
"Fully 65 percent of those who are aware of the new rules on independent expenditures say they are having a negative effect on the 2012 presidential campaign," the center reported. "And among those who have heard a lot about these new campaign finance rules, 78 percent say the effect has been negative."
The poll also found something that is certainly encouraging for those who turned out for the January protest:
"There is no substantial partisan divide in awareness and opinions of the new campaign spending rules. Roughly half of Republicans, Democrats and independents alike have heard about the court decision allowing unlimited independent expenditures. And among those who have heard about it, comparably wide majorities in each group say it is having a negative effect on the campaign this year."
In other words, those with the big money attempting to pull electoral strings may abhor the idea of a constitutional amendment such as the one being proposed, but the rank-and-file Tea Party types might be receptive.
"People on the right think government is the problem," says Ken Knoppow, a "semi-retired" attorney who showed up for the protest. Although the two sides may not agree about the role of government, the rise of both the Occupy movement and the Tea Party can be traced to the financial collapse that resulted in widespread job loss, a massive bailout of the banks and financial markets, and a massive wave of foreclosures.
"I think the Tea Party should wake up and see what we have in common," says Knoppow, 63.
Spending spree
As of Jan. 20, $33 million has beenspent by Super PACs — which are allowed to raise and spend unlimited amounts of money in support of a particular candidate as long as there is (supposedly) no contact occurring between campaign officials and the PAC.
Giving credence to the contention that the movement to amend could become more of a 99 percent issue than a more traditional dispute between rank-and-file Republicans and their counterparts on the left is the recent turn taken in the increasingly nasty GOP primary battle.
Essentially, we've been witnessing the two leading Republican candidates attacking each other for being ... Republicans!
Former House Speaker Newt Gingrich has gone after former hedge fund manager Mitt Romney for being a vulture capitalist, eliminating jobs to increase profits and picking over the carcass of what remains. And Romney has attempted to tar Gingrich for being a lobbyist for lenders Fannie Mae and Freddie Mac, which are ultimately responsible for the majority of home foreclosures taking place.
Doing much of the dirty work in both cases are commercials being paid for by Super PACs.
In the recently completed South Carolina Republican primary, independent organizations reportedly outspent the candidates by a margin of about 2 to 1.
And we're only a month into the primary season.
Already, we here in Michigan have seen an independent ad — this one from the group Americans for Prosperity — attacking President Obama for the debacle involving the federal government's $535 million loan guarantee to Solyndra, a solar panel maker that went bankrupt, costing taxpayers more than a half-billion dollars.
"It is only going to get worse," says Dave Vance, spokesman for the nonprofit Campaign Legal Center in Washington, D.C. "Most congressional races haven't heated up yet. Once we get to the general election, a huge percentage of the country is going to have to live through these TV commercials. They're only going to fuel public outrage and feed the perception that democracy is on the auction block."
Even more ominous, says Vance, is that some office holders are already floating the idea that limits on direct contributions to campaigns should also be lifted.
In fact, the Republican National Committee has filed a brief with the 4th U.S. Circuit Court of Appeals "seeking an end to the federal ban on direct contributions from corporations to candidates," according to the group Common Cause.
Vance, however, doesn't see amending the Constitution as being the best way to address the problem. Or, at least, the sole way.
"It can't be the only play in the playbook," he says.
A better approach, he contends, is to pressure lawmakers into passing campaign finance and disclosure laws that will pass muster with the current Supreme Court.
"The amendment process is incredibly unwieldy and time-consuming," he says. "We can't afford to wait for a constitutional amendment. The whole system is under attack, from stem to stern."
This much, however, seems almost certain: The idea that our government is for sale to the highest bidder will become more indelible as this election year moves forward.
Britain's Guardian newspaper reports that "two of the biggest forces in outside spending in the U.S., the Koch brothers and Karl Rove, with his American Crossroads GPS Super PAC, plan to steer $240 million and $200 million respectively into the election in the course of the coming year."
Think about that: $440 million in spending by just two of these Super PACs with the intent of influencing the outcome of a presidential election.
Rove is the former adviser for President George W. Bush. The Koch brothers, whose sprawling business interests include oil, chemical and timber companies, control an empire that generates an estimated $100 billion a year in revenue.
It was the Koch brothers, by the way, who founded Americans for Prosperity — a nonprofit organization that doesn't have to disclose to the public the source of its funding. Imagine the glee of oil billionaires able to slam the solar industry and tarnish the president promoting green energy alternatives. It's the perfect right-wing twofer.
Closer to home, the state branch of Americans for Prosperity has run ads distorting issues connected to attempts to build a publicly owned bridge between Detroit and Windsor. That bridge, if built, would provide direct competition to the privately owned Ambassador Bridge, controlled by billionaire Manuel "Matty" Moroun and his family.
Between the anti-public bridge commercials and mailers and the family's abundant campaign donations, the Morouns have so far been able to block approval of a new bridge that's supported by the state's Republican governor, the big three automakers, major unions and a broad swath of the business community.
Moroun could be the poster child representing the corrupting effect large concentrations of wealth have on the political system.
It's no wonder the protesters outside the courthouse are asking the question: Is this any way to run a democracy?
"We are seeing more organizations, many of whom won't disclose their donors," David Donnelly, campaigns director for the nonprofit Public Campaigns Action Fund, told the Guardian. "But we know that their money will come from a very small slice of the electorate. It is people with millions of dollars who are fueling the candidates."
It would be hard to find a more exclusive club.
"If our previous campaign financing system was, effectively, an oligarchy of the 1 percent, the new one is an oligarchy of the .01 percent — the people who really control American politics today are the fewer than 10,000 people able to control closely held corporate assets. This is an oligarchy smaller by far than that which governed George III's England, reminiscent more of a state like Pakistan with its 22 families," declared Sierra Club President Carl Pope in a recent Huffington Post blog.
The Super PACs — often controlled by the lawyers or former aides for the candidates they support — are, at least according to the law, supposed to be acting independently. To see how ludicrous this conceit is, you need only go to your web browser and type in the words "Super PAC" and "Stephen Colbert." Colbert, at one point running for the "presidency" of South Carolina, created a Super PAC — named "The Definitely Not Coordinating With Stephen Colbert Super PAC" — and then handed over control of the entity to pal Jon Stewart.
Say this much for our current system — when it comes to creating material for the theater of the bizarre, it has no equal.
The YouTube clips showing Comedy Central's Colbert and Stewart goofing on the contrived fiction of PAC independence do more to nail the insanity of our current system than a conference room full of serious pundits.
And it's not just Republicans. This is a bipartisan effort. The Service Employees International Union and Priorities USA — a Super PAC supporting Obama — recently teamed up to run radio ads attacking Romney on Spanish-speaking stations in Florida.
And while it is certainly true that the right wing has a commanding edge when it comes to PAC money, Obama, as of last September, had raised more than $86 million — less than half of which came from small, individual donations, according to the nonprofit watchdog group OpenSecrets.org.
The temptation to tap into single sources of big money isn't limited to just one party.
"Who's going to want to make a thousand phone calls when you could just make one?" Vance says. "When it comes to this issue, you can't just label the Democrats as wearing white hats and the Republicans wearing black hats."
Move to amend
There is one party that appears to be wearing only white Stetsons when it comes to the issue of campaign finance reform.
In early January, before the Occupy the Court protest, David Cobb of California and George Friday from North Carolina came to Detroit to meet with potential supporters and beat the drum for the Move to Amend organization's efforts.
Cobb, an attorney, was the Green Party's presidential nominee in 2004. And George Friday, despite her name, is chair of the party's women's caucus.
Given that, it seems it's not a coincidence that the event was organized by the above-mentioned Novak, who's active in Michigan's Green Party.
The gathering, held at the First Unitarian-Universalist Church in the Cass Corridor, attracted about 20 people.
Cobb kicked things off by describing himself as a "proud, patriotic and these days pissed-off American."
"We on the left have to get in touch with our anger," he declared.
He then delivered a primer on the issue of corporate "personhood," and how, over time, an entity that, in the early days of the Republic, was understood to be a "legal fiction" ended up being granted many of the same constitutional protections as real, living, breathing people.
History, as we have seen, has been a "series of struggles" by different groups of people — African Americans, Native Americans and women — to obtain the "inalienable" rights that our Founding Fathers originally granted to only white, male property owners.
Those hard-won rights are now being threatened, he explained, by the rise of corporations.
"Corporate personhood is the linchpin for how the ruling elite hijacked government," he declared.
And the only way to regain control, he and Friday argued, is to change the Constitution to say that corporations aren't people and that money isn't speech."
It is a movement, they believe, whose time has come.
"This is a great moment," observed Friday. "It is time to do something radically different."
There is no doubt that the idea is gaining momentum.
The International Business Times News, an online publication, recently reported that, since September, there have been "five different constitutional amendments introduced in the U.S. Congress that would reverse portions of the Citizens United decision."
None of those proposals has yet been endorsed by the Move to Amend. However, a coalition of dozens for organizations ranging from People for the American Way and Public Citizen to Green Peace and the Hip Hop Caucus have signed on to support the idea that the words "We the People" means just that, and that corporations aren't covered.
It's not surprising that the libertarian wing of the Republican Party sees all sorts of problems with this movement.
John Samples directs the Center for Representative Government at the Cato Institute, a libertarian think tank co-founded by David Koch in 1977.
The way Samples sees it, it is a bad idea for Congress to attempt to regulate free speech. Period. And if the First Amendment protections currently covering corporations were eliminated, politicians in power would have an "open season on regulating speech and activity any way they saw fit."
Do we really want to give that sort of power to a body that currently has a public approval rating hovering near single digits?
Part of the danger, he says, is that even though the concept of free speech is embedded in this culture as an "abstract idea," the reality is that "people don't tolerate very well being confronted with ideas they believe are wrong."
In other words, corporations — which are really a collection of people, both shareholders and employees — would be in danger of having their collective voices snuffed out if the Move to Amend people were to win this fight.
Others extend the argument, saying that if the umbrella of constitutional protections was removed from corporations, there would be nothing to stop the government from wreaking all sorts of havoc.
What complicates the issues is that it's not just right-wingers who voice that concern. Some on the left agree.
In a recent opinion piece, Boston College law professor Kent Greenfield — who previously fought to end the U.S. military's now abandoned "don't ask, don't tell" policy toward gays — described the move to amend as "an overreaction."
"The notion that constitutional rights are only for people is dangerous to progressive ideas," he argues.
If the measure were to be ratified, he warns, "The FBI could seize the servers owned by Google — not a natural person — without a warrant."
Daniel Tokaji, the Jones Day Designated Professor of Law at Ohio State University's Moritz College of Law, is also concerned that an amendment like the one being considered "is a well-intentioned but overly simplistic approach to the problem.
"There are real First Amendment interests at stake here," he says in a phone interview. "If you were to completely snuff out the corporate perspective from the debate, that would be a real problem."
Tokaji contends that a better solution would be to have political campaigns publicly funded.
Detroit attorney Bill Goodman, formerly legal director for the Center for Constitutional Rights in New York City, asserts that the proposed amendment is needed to address the "growing and grotesque disparity between the wealthy and working people in terms of the electoral process."
As far as constitutional protections, he says, the real people who work for corporations would retain all their rights. "Freedom of expression wouldn't be curtailed," he says. "It's hard for me to see how there would be any chilling effect."
One of the beauties of the amendment, he notes, is that it is simple and straightforward, giving people a "clear and obtainable objective they can organize around."
It also has the advantage of forcing our elected officials to show their true allegiances.
"Either you represent the people you claim to represent, or you are bought and paid for. It's as simple as that," Goodman says.
"Concise ideas can be very powerful, and this movement has that going for it."
Thom Hartmann isn't a lawyer, but when it comes to the issue of the Supreme Court and corporations and "personhood," he wrote the book on the subject long before this current debate began.
In 2002, Hartmann — a highly regarded liberal who has a nationally broadcast radio program — wrote the book Unequal Protection: the Rise of Corporate Dominance and the Theft of Human Rights.
The way Hartmann sees it, there are no gray areas here. The Founding Fathers — with Thomas Jefferson leading the way — were clear in their intent. The inalienable rights granted in the Constitution and the Bill of Rights were intended to cover people — living, breathing, people — and not the artificial entities that are corporations.
In fact, as he points out, the American Revolution was in large part a rebellion against the tyranny — not only of King George, but also of the monopolistic corporation the crown chartered: the East India Company.
When the patriots of the 1700s threw their Boston Tea Party, they weren't defying just the monarchy. They were also saying they wanted the freedom from the corporation, which kept a standing army to help maintain its iron-fisted grip on trade.
And so, when critics of the move to amend warn that constitutional protections will leave corporations vulnerable — and that includes nonprofit corporations as well — Hartmann says that's as it should be.
Lawmakers would still be able to pass laws protecting those corporations from, say, unreasonable search and seizures. They could pass laws granting those same corporations due process protections.
The difference, he explains, is that those rules would be subject to the will of the people.
"From the founding of this country until the 1890s," he says in a phone interview, "all corporate offices had to be open and available to the state's Secretary of State and other regulatory offices at all times. "Doing business is a privilege, not a right. When they got the right to hide things (under protection of the Fourth Amendment), we got tobacco and asbestos killing us when they knew that they did ... but didn't tell us."
For him and the others pushing the issue — people like that small group that walked into the frigid wind hoping that the rest of us would listen to what they have to say, and then come and join them — the time has come to hold a intense national debate, the focal point of which is this fundamental question:
"Are corporations here to serve us, or are we here to serve them?"
