In 2010, more than 2,000 Sharon residents defeated a proposed Charter that would have made structural changes to Town Meeting. The message was clear – voters trust Town Meeting attendees to make decisions about our Town that are in the best interest of the community.
Recently, however, at , residents departed from their usual role of addressing the fiscal and regulatory needs of the Town and, instead, weighed into a matter of national concern. At 10 p.m., less than 200 voters approved by a narrow voice vote an Article that called for a US Constitutional amendment that would (1) eliminate all Constitutional rights and privileges enjoyed by corporations, labor unions, non-profit organizations and other “entities” and (2) give the government the power to prevent private citizens from making contributions to candidates in political elections.
Article 10 of the Warrant was, according to its proponent, intended to reverse the United States Supreme Court ruling in the Citizens United case. There, the Court struck down laws restricting “independent political expenditures” by corporations and unions. (Note - the Court did not strike down other campaign finance laws that restrict corporations from making contributions to individual candidates.)
Reasonable people can differ whether Citizens United represented a reasonable interpretation of the First Amendment. The Constitution says that the government will “make no law” abridging the right of free speech, and campaign contributions have long been recognized as a valuable, protected form of political expression. On the other hand, citizens such as the local proponent and others are concerned about the power of corporations to spend money independently during election season. Those citizens certainly are within their right to advocate campaign finance reform.
The question here is not whether Citizens United should or should not be overturned, or whether there should be restrictions on individual expenditures by “artificial entities.” Persons better informed than this author no doubt would have much to say on that subject. Rather, the question is whether Town Meeting is the place for Sharon residents to have their voices heard on complex matters of Constitutional law and national public policy.
In this author’s judgment, it is not.
First of all, Town Meeting is simply not designed to address Constitutional issues. For all its advantages as a forum to debate matters of local concern, Town Meeting is not well-suited to tackle topics that require more philosophical consideration. Debate time is limited. Written materials are scarce and hard to read. And most residents are there to vote on town-related matters about which they have first-hand knowledge. When discussing something that is about to happen on Pond Street, for instance, we all know what we are talking about. When we veer into the esoteric world of Constitutional law, however, we are treading on less steady turf.
Town Meeting also lacks the “back and forth” associated with the usual Constitutional debate. In those settings, an effort is made to call upon scholars from either side of the question. After all, amending the most important document in the history of Western democracy is serious business. At the recent Town Meeting, however, the discussion and debate lasted less than fifteen minutes and, remarkably, did not include any serious consideration of the exact language of the Constitutional amendment offered in Article 10.
Let’s have that discussion here and see what was not considered prior to the vote.
ARTICLE 10, SECTION ONE
Article 10, Section 1 of the Warrant states: “Only human beings, not artificial entities such as corporations, are entitled to the rights and privileges guaranteed by the Constitution of the United States.”
The Article, as one can plainly see, takes all Constitutional rights away from all “artificial entities,” not just corporations. As normally understood, “entities” are collections of individuals working together to make money, advocate a cause, or do just about anything that it takes more than one person to accomplish. The term used in the Warrant would encompass a labor union, or even a non-profit organization such as the League of Women Voters, in addition to big businesses.
At Town Meeting, a member of the League of Women Voters spoke in favor of the proposed amendment. However, a League of Women Voters taskforce recently published an article stating that adopting language similar to that proposed in Article 10, Section 1 would not be a good idea.
To quote the League of Women Voters taskforce, an amendment such as Article 10, Section 1 would “exclud[e] corporations and other entities from all the rights protected by the Constitution [and] might create unintended consequences for property rights under the Fifth and Fourteenth Amendments, Fourth Amendment rights against unreasonable search and seizure, and Fifth Amendment protection against double jeopardy.”
In other words, Article 10, if adopted, would tell Sharon small businesses, labor unions and non-profit groups doing charitable and other good works that they have no Constitutional rights. The government could, in theory, break down the doors of these “artificial entities” without a search warrant, or deprive these groups of Due Process under the law such as a right to a fair hearing or speedy trial.
No one believes that the good people at Town Meeting intended to deprive fellow citizens, working in groups, of the right to Due Process, or the right to be free from search and seizure without a warrant. But this is precisely what Article 10, Section 1 would authorize.
ARTICLE 10, SECTION TWO
Section 2 of Article 10 states: “Election spending is not free speech guaranteed by the First Amendment, and is therefore subject to regulation by federal and state governments.”
This may be the more remarkable of the two sections adopted by Town Meeting. If such an amendment were to pass, nothing in the proposed language would prevent Congress, or government at any level, from deciding one day to restrict or possibly ban election spending for all citizens, not just “artificial entities.” The Article would essentially give sitting members of Congress the ability to decide one day that all campaign spending is barred, and thereby give elected officials free hand to regulate themselves right back into office. Or, the government could impose onerous reporting requirements that decrease participation.
Lest one think that these are the ravings of some kind of Constitutional purist, many people from both sides of the aisle are advocating strongly that Americans “fix” the Citizens United “problem” through the legislative process rather than by amending the Constitution in these types of ways.
The League of Women Voters – an organization that favors campaign finance reform - has expressed serious concerns about Article 10, Section 2. Its taskforce recently stated, “the very broad language of this resolution gives unlimited regulatory power to state and federal legislatures, which could no longer be checked by the judiciary.” In other words, having no Constitutional protection, citizens would have no one to whom they could complain if Congress stripped them of the right to support candidates of their choosing.
In an article published a few months back in the liberal publication, the Huffington Post, an official of the American Civil Liberties Union (ACLU), a group that opposed the Citizens United decision and is itself advocating for major campaign finance reform, also cautioned critics of the decision against using a Constitutional amendment to restrict free speech as the vehicle to address the issue.
Here is a lengthy passage from the ACLU article. It is quoted not to advance the ACLU’s position, but rather to show that even those advocating corporate campaign finance reform are loathe to amend the Constitution to address the matter.
“It’s important to be clear on what Citizens United did. The case allowed corporations and unions (including non-profit corporations like the ACLU or National Rifle Association) to spend “general treasury” (non-political action committee) funds on political communications that are not coordinated with a campaign. Citizens United itself has very little to do with the dreaded “Super PACs,” which are primarily funded by individual donations … Further, Citizens United has nothing to do with direct contributions to candidates, which are still totally verboten for corporations and unions and strictly limited for individuals …
Reasonable minds can and should differ on the influence of ‘big money’ in politics. The legal and policy questions raised by the link between concentrated wealth and political speech are numerous and complicated. We should be discussing the health of our politics, and we should be doing more to, for instance, provide for public financing and promote transparency without quelling anonymous speech. But if there is one thing we absolutely should not be doing, it’s tinkering with our founding document to prevent groups … from speaking freely about the central issues in our democracy. Doing so will fatally undermine the First Amendment, diminish the deterrent factor of a durable Constitution and give comfort to those who would use the amendment process to limit basic civil liberties and rights. It will literally ‘break’ the Constitution.”
One must greatly respect the many Sharon residents that devote time and energy to attend Town Meeting - especially those that serve on the Finance Committee. It is truly a thankless job. Prior to Town Meeting, the Committee voted in favor of Article 10 by a vote of 5-2. In this case, the Finance Committee’s decision may have been rendered without due consideration of the potential risks posed by Article 10 and outlined above. Indeed, the comments underneath the Warrant article itself fail to cite any problems with the language at all.
Given the risky nature of wading into Constitutional waters, another approach might have been for the Finance Committee to say, in a loud clear voice, that its function is to opine on matters of financial concern relating to town governance – not to weigh in on matters of national policy. Citizens elect Congressmen, Senators and Presidents to address federal matters. Citizens appoint residents to the Finance Committee because the members have demonstrated the ability and attention span required to investigate complex budgetary and similar matters involving our community.
As one active Town Meeting attendee eloquently argued, having now set the precedent of addressing a proposed Constitutional amendment, in future years nothing will prevent well-intentioned citizens from bringing before Town Meeting other matters of national concern – abortion, gun control, fracking, or perhaps even international or military issues. In response to a speaker that raised this very concern, one Article 10 supporter said, in essence, that “if someone cares about an issue, they should be here to vote.”
Point taken, but is that fair? The overwhelming majority of Sharonites never attend Town Meeting. They support the current system because they trust the citizens that do attend to respect the interests of the community as a whole. (Indeed, the defeat of the proposed Charter clearly reflects that sentiment.) If these residents come to believe that Town Meeting is being used to advance agendas not of a local concern, they are less likely to trust Town Meeting as a place that reflects the true consensus of the community. In that case, everyone loses.
Town Meeting’s passage of Article 10 by narrow voice vote took place after a discussion in which the specific problems with the proposal mentioned above were never even considered. It was clear to everyone in attendance that the citizens voting in favor of Article 10 were merely expressing their attitude toward the Citizens United decision in general. It is quite possible that the voters did not intend to enact an amendment filled with such problems. As the League of Women Voters taskforce has acknowledged, “these proposals illustrate the complexity of this issue, the risk of unintended consequences, and the difficulty of crafting precise language in the form of a constitutional amendment.”
Reasonable people can differ whether Citizens United is good law. But no one can quarrel that what actually passed Town Meeting last week was an article that would take rights away from businesses, non-profit board and unions, and deny all citizens – not just entities - the guarantee of participating in the political process through campaign contributions. One questions whether Article 10, as enacted, reflects the view of our community as a whole.