Individual and Collective Rights

National Review recently published an editorial opposing the "Peoples Rights Amendment."

Today they published a letter in opposition -- favoring the amendment.

This is my response to that letter.

This article starts off with all alarms ringing as it talks so piously about our "sacred rights" right before it explains to us how gutting them isn't really gutting them.

The authors make no convincing case for their assertion that corporations are not deserving of constitutional protections. In fact, the only difference between a corporation and a group of unincorporated individuals is that a corporation is taking care to operate in an organized, transparent fashion for the benefit of those individuals. This amendment would drastically inhibit the ability of people to form organized political opposition, because it would deprive them of the ability to set up the legal rules to protect the integrity of the funds handled by the group or in the name of the group. That's what a corporation does.

Consider these examples:

Imagine a small business owner with a C Corp. or LLC. Much of his available capital is handled in the name of the corporation for tax purposes. If he discovers that his city council or his state government, or the federal government, is proposing legislation that would harm his business, is it fair that he would not have the right to use his business capital as he sees fit to fight that legislation?

Or imagine that a group of people wish to get together to support second amendment rights. If their free speech is dependent upon them being an unincorporated group of people, then all financial transactions among the group have to be among individuals. The leader of the group has to accept individual contributions and individually purchase radio and TV spots, send out mailings to Representatives and Senators. This opens that individual up to huge tax liability as he has to explain on his own individual taxes where he got all this money to spend. The money would presumably count as individual income, because he is not a corporation or "artificial" entity and thus has no way to characterize the funds apart from his individual financial statements. This is incredibly chilling to free speech!

However, if the group wishes to incorporate to avoid the individual liability, then they would sacrifice ALL right to free speech under this amendment!

"Individuals acting in collaboration with others are, by default, in an unincorporated association unless they choose to incorporate. The constitutional rights of individuals are always protected by the Constitution, both now and under the People’s Rights Amendment; the amendment only affects corporations."

This is extremely disingenuous. For a large group of unincorporated people to rationally and sensibly cooperate to achieve a goal, such as the promotion of an ideal or political position, almost requires some sort of incorporation to allow the people to handle pooled funds fairly, transparently and legally. High-impact speech: radio, TV, film, major web sites, etc., is expensive. This would drastically limit the ability of people to make their speech effectively heard.

"Your editorial also makes false claims that the People’s Rights Amendment would adversely impact freedom of the press."

That statement is not compatible with:

"Finally, it is important to point out that the People’s Rights Amendment applies equally to all corporations. Unlike other amendments currently in play, the People’s Rights Amendment contains no exemption for nonprofit corporations, or for incorporated labor unions."

Almost all media/press outlets are, in fact, corporations. So which is it? All corporations are treated equally, or media corporations have special rights? Who gets to define what the press is? Hmm, the government, eh? Convenient.

Additionally, though the *amendment* may treat all non-press corporations equally, it just makes them equally subject to legislation and regulation of their speech. There is no reason to expect that the subsequent legislation and regulation will treat all corporations equally! We would be surprised if we did not find a myriad of special exemptions, loopholes and provisions that ended up allowing certain favored groups more free speech than others.

Constitutional rights can very clearly be collective as well as individual. In the first amendment there are at least three references to collective rights: religion, the press and assembly. It is utterly false to claim that "constitutional rights, such as free speech, belong only to natural persons, and not to corporations." Being able to exercise rights in a collective fashion is every bit as important as exercising them in an individual fashion. There's nothing special about a corporation that would make it deserving of being stripped of our right to exercise our freedoms collectively. A corporation is just a way for groups of people to pool their resources in an honest, rational and manageable fashion.