Debate over Winston-Salem resolution hinges on corporate personhood

by Jordan Green

The Winston-Salem City Council’s general government committee will consider a resolution in support of a Constitutional amendment to curb corporate influence over elections when it next meets on Feb. 12, trailing other North Carolina cities such as Raleigh, and Greensboro that have already passed such resolutions.

Council members voted unanimously on Jan. 22 to assign the item to the general government committee, which is chaired by an opponent of the resolution, Southwest Ward Councilman Dan Besse. The decision followed months of quiet lobbying and maneuvering by supporters in Occupy Winston-Salem, and discussion among council members with different opinions on the matter.

Councilman James Taylor Jr., who represents the Southeast Ward, notified his colleagues on Dec. 17 that he planned to bring up a resolution, and City Attorney Angela Carmon had prepared a draft for the Jan. 22 meeting. Carmon said the resolution was not placed on the agenda because it had not gone through committee. That was by agreement of council at the previous meeting. Carmon added that such items are typically added to the agenda the night of the meeting, but only with unanimous agreement to suspend the rules. In this case, Northwest Ward Councilwoman Wanda Merschel said she could not support taking a vote on the resolution because she had not had adequate time to consider it.

Taylor said he supports the resolution because of the danger of vested corporate interests such as developers dumping unlimited cash into local elections and handselecting officials to carry out their bidding against the interests of the public.

“Now these are people who may not care one way or another about the people, about the government,” he said. “All they care about is the bottom line. And I think anytime you run the risk of putting people there who only care about corporations’ bottom lines you are tearing up the social fabric of what our forefathers and what our ancestors have built.”

The resolution drafted by Carmon at Taylor’s request calls on Congress to pass a Constitutional amendment 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 amendment would effectively reverse the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, which held that corporations have a constitutional right to spend unlimited cash to influence elections as long as the expenditures are made independent of the campaigns they seek to assist.

Besse has staked out a position in opposition to a resolution on the basis that it is not relevant to the operation of city government.

Taylor rebutted Besse’s argument during the Jan. 22 council meeting by citing the city’s code of ordinances.

“It tells us that the city council is responsible for adopting and providing for all ordinances, rules and regulations necessary for the general welfare of our city,” he said. “Regulations are defined as principles that govern our behavior. I would argue that this type of behavior is corporate behavior, and it deals with our ability to have fair elections and to look after the general welfare of our city.”

Greensboro Mayor Robbie Perkins initially expressed objections similar to Besse before voting to support a resolution in October that concludes with language identical to one drafted by Carmon at Taylor’s request.

Twelve cities, towns and villages across the state have passed resolutions seeking constitutional amendments to curb corporate influence over elections, including Raleigh, Greensboro, Durham, Asheville, Greenville, Chapel Hill and Carrboro.

Not all of them are as strongly worded as the Greensboro resolution, which was drafted by two Elon University School of Law students. A resolution by the Raleigh City Council passed in July urges the public to support a constitutional amendment that merely incorporates “as an exception to the First Amendment the provisions of the Bipartisan Campaign Reform Act of 2002 relating to contributions by corporations and labor unions.”

Councilwoman Molly Leight, who represents the South Ward, echoed Taylor’s sentiments last week.

“Something that affects our voting process — yes, it’s a national issue, yes, it’s a court issue,” she said. “But it’s also a Winston-Salem issue.”

While he personally opposes the measure, Besse predicted that his committee will forward a resolution for council’s consideration on Feb. 18. The other three members of the committee are Taylor, Leight and Denise D. Adams, who represents the North Ward.

“It will be my recommendation to the committee to forward a resolution back to council in whatever shape it’s in at the end of the meeting,” Besse said. “The committee may or may not approve that recommendation, but I suspect it may because my colleagues on the committee are those that say they favor the motion.”

After the Jan. 22 meeting, Angela Carmon, the city attorney, huddled with Besse, Leight and West Ward Councilman Robert Clark.

Leight came away from the conversation indicating that she wants to tread carefully on the matter of corporate personhood.

“The heart of the matter I am in agreement with,” she said. “I think we have to find a way to state it without depriving corporations of their rights. But we don’t want them to be able to buy elections.”

Carmon said later that she has some ideas about how to tweak the resolution that she expects to articulate at the committee meeting on Feb. 12.

“There are some First Amendment concerns, and rights natural persons have that corporate persons should have that you don’t want to strip them of,” she said. “These aren’t necessarily First Amendment rights, but corporations have the right to own property and they have the right to execute contracts. You don’t want to strip them of that.”

Besse stoked those concerns in a Jan. 4 e-mail to fellow council members.

“If you eliminate the legal concept of corporate personhood then you create some adverse consequences to society, including complications for the effective exercise of freedom of the press,” Besse said in an interview last week. “I don’t think that everyone who’s pressing this particular issue understands those legal complications that would flow from the remedy they put forward. Some, I think, do. Some have adopted the position that the corporate form is so invidious that it needs to be destroyed. That’s a pretty radical position. I’m not one that any of the dissenting justices in Citizens United would have taken. Justice [John Paul] Stevens, who wrote the dissenting opinion, explicitly said in his dissent that the legal concept of corporate personhood had its legitimate reasons.”

Besse, an avowed progressive Democrat who achieved a statewide profile with an unsuccessful run for lieutenant governor in 2008, has found himself in the awkward position of agreeing with resolution supporters on the broad contours of their concern about the influence of corporate money in elections but breaking ranks on the particulars of their proposed remedy.

“What Justice Stevens said is what I wholeheartedly agree to — is that campaign finance must be subject to regulation or we have a disaster for democracy,” he said. “The other main point was that it’s perfectly legitimate to treat corporations as a class differently than you treat natural persons in terms of rights. And the only position that Citizens United takes as to the corporate personhood debate is that the majority in that case adopted the radical new position that in terms of what could be spent on campaigns you couldn’t distinguish between the rules on corporations and the rules that you put on individuals and non-incorporated associations.

That was a radical interpretation and it has been incredibly disruptive to campaign finance laws. That’s the ruling that needs to be reversed once you replace a couple of the foolishly shortsighted justices when they step down. The court needs to return to more than a century of precedence that says, yes, you can regulate corporations more than you do natural persons, especially in the area of campaign finance and, yes, you can regulate campaigning.”

Besse said he would be more inclined to support the narrow language of the Raleigh resolution rather than the strong wording of the one passed in Greensboro, but he doesn’t see himself putting significant time into crafting a viable alternative.

Melissa Price Kromm, director of NC Voters for Clean Elections, said it’s not particularly important what language the resolution includes.

“The purpose of this is to have people come together and have a say in their democracy,” she said.

Tony Ndege with Occupy Winston- Salem said, similarly, that the language is negotiable, adding, “Two things we’re not going to compromise on is overturning Citizens United and the movement to amend corporate personhood.”

Besse said his initial objection was that the resolution would take up an inordinate amount of council’s time and is likely to have no impact.

“Essentially, it’s one of those issues we can debate at great length, approve a solemn and high-minded resolution, and it will have absolutely no effect,” he said. “It’s so frustrating to have to watch the people’s disappointment from the efforts that have drawn their enthusiasm and energy and essentially don’t produce the change that they’re fighting for. It’s so common to see people’s enthusiasm and energy directed towards targets that aren’t going to work.”

Too late.