Wednesday, May 30, 2012


Back in 2008, an organization called Citizens United put together a movie which was highly critical of Hillary Clinton. The folks at Citizens United apparently thought that Hillary would win the Democratic nomination for President.

The Citizens United people were a little nervous. There is a thing called the Bipartisan Campaign Financing Reform Act on the books. Better known as McCain-Feinold, the act imposes stiff penalties, even jail time, for doing what it forbids.

And it forbids corporations from spending money to support or defeat a candidate for federal office.

It’s an understatement to say that the regulation of campaign expenditures is a grey area of the law.

Anyway, Citizens United didn’t want any trouble, so they started a lawsuit to determine if it was legal for them to broadcast “Hillary:The Movie” on television.

By the time the case got to the Supreme Court, Hillary Clinton had lost the Democratic nomination to Barack Obama .

Still, it was a juicy legal question.

The Supreme Court decided in favor of Citizens United.

I heard Justice Clarence Thomas talk about the case at Stetson University Law School. He made it sound pretty simple. If one man has a right to spend money for or against a candidate, so can two or three. If people have a constitutional right to assemble peaceably, they have a constitutional right to associate for any lawful purpose.

And spend their money.

A few years ago, Michael Moore made a movie called “Fahrenheit 9-11” which had a lot to say about President George W. Bush. Currently, there’s a number one best seller called “The Amateur, Obama’s Faith” by Edward Klein. It will certainly have an impact on this year’s election.

Still there are thousands of voices being raised around the country, calling for the reversal of the Citizen’s United case. Typically, these protesters insist that corporations are not human beings, and that they do not have the constitutional rights that people do.

You can’t quarrel with that. Corporations are fictional persons, creatures of the government which charters them. They have such powers, and only such powers as the corporation laws give them. If they do things that are not within the scope of their corporate powers, they are said to be acting ultra vires, and the state can forfeit their charters.

But corporation laws typically do not prevent corporations from advertising, or from publishing or broadcasting. Corporations like Citizens United are organized for the very purpose of promoting the political views of the incorporators.

Other corporations, such as labor unions, chambers of commerce, industry associations and the like are organized to promote the economic interests of their members. Very often those interests are affected by the actions taken by public officials.

General business corporations are increasingly affected by legislation.

Environmental laws, tax laws, securities regulations, you name it, what the Congress doesn’t dictate is delegated to a vast bureaucracy empowered to promulgate rules, make findings and issue orders.

All of which fosters the unholy alliances between lobbyists and legislators, politicians and partisans, cash cows and candidates.

I don’t like it any more than you do.

But I can’t bring myself to believe that a simplistic constitutional amendment declaring that corporations have no constitutional rights would solve the problems.

I suspect that many of the brains behind such ideas wring their hands in anticipation of a day when corporate property can be confiscated without offending the Fifth Amendment of the Bill of Rights.

Friday, May 4, 2012


Some folks have asked me why I haven’t been “Blogging again.”

Long story. Thirty years ago, I wrote a law review article entitled Return to Philadelphia. In it, I argued that it is time for the people of the United States to hold a convention to propose needed amendments to our federal constitution.

If you have a couple of hours to wallow in constitutional theory and politics, I urge you to
visit I stand by every word of it.

That law review article led to an invitation to address the Federalist Society on the campus of Yale University. You can find that speech at

Fast forward twenty-five years. The Harvard Journal of Law and Public Policy invited me to do a reprise of my speech at Yale. That set me about exploring the Internet to see what, if anything, was happening in the area of constitutional amendments or reforms.

Which led to the creation of a committee called Friends of the Article V Convention, and a web site at

What I discovered is that there are fistfuls of proposed constitutional amendments dancing around on the Internet, each with a dedicated coterie of supporters and a gaggle of opponents.

But there is no place for them to come together, discuss, debate, revise, and seek broad based approval of their ideas. There is no place to weed out the impractical, and the radical, or to vet the workable, the necessary and the possible.

And so, a couple of years ago, I formed a non-profit corporation called Convention USA, Inc. and launched a web site at

The idea is to provide a place where all Americans can gather to voice their concerns about our great nation, and to participate in the process of refining constitutional amendments which will help to assure that the blessings of liberty we have enjoyed will be preserved for our children and grandchildren.

There is no shortage of citizens who are shaking their fists at the sky. Howard Beale, the deranged television commentator in the movie, Network has become a contemporary icon, shouting out the window that he is mad as hell and isn’t going to take it any longer.

Americans have taken to the streets and the public square to demonstrate their dissatisfaction with the federal government, the politicians, the corporations, the courts, the economy, the national debt and just about everything in between.

And for every marching, chanting, sign carrying, occupying, unhappy citizen, there are hundreds and thousands at home throwing slippers at their television sets and grousing about the state of the republic.

2012 is a leap year, an election year. Some folks will vote for anyone who is not an incumbent. Many more will stay at home, disgusted with politics, political parties and incessant campaign advertising.

What is slowly bubbling up in the American consciousness is the fact that we have problems that can’t be solved by voting someone out or voting someone in.

The founders of our nation intended to create a system in which there would be checks and balances. Where the ambition and self interest of some would counteract the overreaching of others. Where the oath to support the constitution would be the single unifying force that molds disparate partisans into a functioning union.

A constitution doesn’t tell us what laws are to be made. It tells us who will make the laws, who will enforce them, who will interpret them. A constitution is a blue print, a user’s manual, if you will, that tells us how the government is to function, not what it is to do.

Anyway, after several years of sputtering along, Convention USA is catching on. We now have 151 delegates whose voter registrations have been verified and another 86 still being examined.

In all, they represent 46 of the 50 states.

As political movements go, it is barely an acorn. But it’s growing.

And keeping me busy.