Thursday, December 15, 2011

Destroying Democracy In Order to Save It

From an under utilized section of the wacky Minnesota Congressman file, this note from James Taranto at the Wall Street Journal:

The resolution to propose a constitutional amendment abolishing most limits on government power has seven co-sponsors in the House. In addition to the four we listed yesterday--Reps. Ted Deutch and Alcee Hastings of Florida, Peter DeFazio of Oregon and Jim McDermott of Washington state--they are Reps. Keith Ellison of Minnesota, Peter Welch of Vermont and Rick Larsen of Washington.

I think Taranto is intentionally using some hyperbole with that characterization of the bill, but the concerns about its propriety are legitimate. Here are some key excerpts from the so called “Saving American Democracy” bill that Ellison is co-sponsoring (H.J.RES 90.IH) to amend the Constitution:

Section 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.

Section 2. Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.

Section 3. Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.

Section 4. Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate's own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.

As with any modern legislation, lots of obfuscation and self-aggrandizing gobbledygook there. But even among the high minded rhetoric about democracy and freedom, the sinister nature of this bill oozes out from between the lines. Any time someone wants to enshrine into the highest law of the land words like “rights do not extend” and “subject to regulation” and “prohibited from making” and “set limits on,” when the target is the citizenry rather than the government itself, that’s trouble, Mister.

For a more learned and detailed criticism, check out UCLA Law Professor Eugene Volokh’s analysis here and here.

James Taranto distills Volokh’s thoughts and adds some of his own here, including this projection of the possible effects of Keith Ellison’s Constitutional amendment:

It would deny all constitutional rights to business corporations and disfavored nonprofits. Among other things, that would mean that the government (federal or state) could subject such entities to bills of attainder and ex post facto laws, impose criminal or civil penalties on them without due process, search their premises without a warrant and seize their property without compensation.

The Equal Protection Clause of the 14th Amendment wouldn't apply either, so that the government would be under no obligation to exercise these powers fairly. Thus what [this bill] is proposing amounts to a lawless regime of crony capitalism in which political officeholders would have unchecked power to enrich their corporate friends by persecuting competitors.

This all refers to that little “rights of the Constitution do not extend to” part of Section 1 of the bill, aimed at corporations and private entities that “promote business interests”. Granted, Taranto’s suggested consequences seem extreme. But the only thing that would prevent such a thing from happening if this Amendment were passed are the tender mercies of who ever happens to be President and who ever happens to be making judgments in America’s court system. Anybody here want to trust their freedoms to those illustrious institutions?

The good news is that this bill is, as Harry Reid is fond of saying about GOP efforts to cut spending, Dead On Arrival. As Taranto’s notes:

The [Saving American Democracy] Amendment is never going to become law. Even proposing a constitutional amendment requires two-thirds votes in both houses of
Congress … Still, it's a bit disturbing that such a monstrous idea does not make its proponents persona non grata in one of America's two major political parties.

That’s the real scandal of this Amendment. Keith Ellison is in such a protected position in Minnesota’s political and media culture that he can make goofy, extreme proposals like this and know that there won’t be any negative consequences.