This will be PassMassAmendment's third year petitioning for a ballot initiative based on “Corporations are not People, Money is not Speech.” This is our first year to formally challenge any concerns about any restrictions contained in Article XLVIII, concerning the language that Citizens can use for a ballot initiative.
We at PassMassAmendment feel that the corrupting influence of corporations and big money on the political process and government, has reduced the voice of the people and their influence in representative government, to the point that we need to do something. The system is broken and The People have lost faith. Approval ratings for our representative government have reached an all time low. We believe that this situation is very similar to that which drove the Constitutional Convention of 1917, to strengthen the voice of The People via the I&R process. The I&R process was initiated because of the growing power of corporations and the need to ensure that The People's right to control the government was preserved. In particular, the I&R process was created to ensure that The People had a way to protect themselves FROM corporations.
The AG's office, in our prior attempts to be “certified”, claimed that it can not certify our ballot initiative, because it is the subject of “human rights”. And then went on to cite cases that “involved” corporations, but which were in effect were really only about “individuals”. The AG tried to make the case that our ballot initiative can not be certified because it's the subject of “corporate rights”, which the AG said are “Excluded Matters”. But it is clear that corporations have no rights, as we will show below. Further, Excluded Matters are intended to prevent a ballot initiative from reducing human rights, not to prevent ballot initiatives from clarifying human rights. Our ballot initiative is not about reducing human rights. It is about strengthening human rights. We are in a situation where we need to access the ballot to protect ourselves, specifically what I&R process was designed specifically for.
We believe that it's an absurd idea that corporations should be protected by the AG, using Article XLVIII, when the whole point of enacting the I&R process in the first place was to protect human beings from the overreach of corporations in the first place. Although we believe that it's an absurd idea, if we want our ballot initiative to be “certified”, we are now forced to explain why we believe we should be certified.
The Legislature is under the increasingly strong grip of moneyed people, through corporations and PACs. And we have no other alternative to protect ourselves. The I&R process was designed specifically to help The People in just such a circumstance. When the Legislature is not acting in the interests of The People, The People can turn to the I*R process. Our use of the ballot initiative while “the subject of” rights, is outside what the framers of the I&R intended by Excluded Matters, and is well within exactly what they meant the I&R process to be for. While we agree that there has yet to be a court case specifically to address our claim that corporations have no rights, that the AG can not present one case that establishes corporations have rights, we believe that this in itself is enough evidence that corporations have no rights under Massachusetts law. And where there is doubt about whether such language is included in Excluded Matters, we should be certified. Further, the only mention about corporations in our Constitution is to make it clear that they do not have rights.
Since the AG can not firmly establish that corporations have rights, we believe that we should be certified. In Associated Industries v. Attorney General, 418 Mass. 286 - we learn that “we follow “the firmly established principle that art. 48 is to be construed to support the people's prerogative to initiate and adopt laws.” Id. at 211. In other words, unless it is reasonably clear that a proposal contains an excluded matter, neither the Attorney General nor this court on review should prevent the proposal from appearing on the ballot.”
To set the stage for our case to convince you that we should be certified, we need to start by citing the Massachusetts Constitution.
Article V. All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.
Article VII. Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men: Therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it.
Article IX. All elections ought to be free; and all the inhabitants of this commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments.
And according to Associated Industries v. Attorney General, 418 Mass. 286 (?) 604 - “There can be no equality among citizens if the vote of one counts for considerably more than that of another in electing public officers. The true spirit and meaning of the Constitution is that each voter has an equal voice in the enactment of laws and in the election of officers of the State. Such equality must be secured in all laws for the choosing of representatives in the General Court or the Constitution is violated.”
The above references illustrate that the power resides in the people and that people have the right to access the ballot.
Now we will go on to discuss how we know that corporations do not have rights.
In Article LIX we are informed that - “Every charter, franchise or act of incorporation shall forever remain subject to revocation and amendment.”
If a corporation had any rights under the Massachusetts Constitution, the legislature would not have the ability to revoke or amend “every charter, franchise or act of incorporation”. This amendment tell us that corporations do not have rights. Rights would need to be granted by constitutional amendment. And these rights have not been established. Because corporations have no rights, a subject of corporate rights can not be considered an Excluded Matter. Therefore, our Amendment language is in line with the already existing Article LIX and should not be able to be challenged.
That, in itself, should be enough. But we will go on.
Articles XLVIII and LIX were passed at the same time, 1918. That is key to understand. Because at the same time that “Excluded Matters” was being established, the fact that corporations have no rights was also being established. These two complement each other by protecting the ballot process FROM corporate overreach.
During the debates of the 1917 - 1918 Constitutional Convention, there was great concern about the “Invisible Government”, which were the corporations, mostly railroad and subway, taking over by corrupting the political process and Government, thereby leaving The People with no voice, much like what is happening today. To combat this, The People were finally given a process to accomplish what was guaranteed to us in the Preamble's first paragraph - “The end of the institution, maintenance, and administration of government is to secure the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquility their natural rights, and the blessings of life, and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity, and happiness.”
What the People demanded and finally received in 1918, was Article XLVIII - the Initiative and Referendum
process. process, and clear language that corporations do not have rights, but are forever subject to revocation by the Legislature.
The rights afforded in the Constitution, including the preamble cited above, refer to individuals, most definitely human beings. And the cases the AG cites when trying to convince us that corporations should be protected by Excluded Matters, are all about protecting the rights of individuals, not about protecting rights of corporations. The cases refer to corporations in their text, but when rights are invoked, they are the rights of human beings, not about rights of corporations. Again, we remind you that if corporations have rights, that the Legislature would not be able to revoke their charters.
In the AG's letter of 2013, not certifying our language, “rights of the individual” was used in reference to corporations. We see no way that an individual could be construed to be a corporation.
To help us understand what a “right” is, via amendment, we cite Yont v. Secretary of the Commonwealth, 275 Mass. 366 - “An amendment to the Constitution is a solemn and important declaration of fundamental principles of government. It is characterized by terse statements of clear significance. Its words were employed in a plain meaning to express general ideas. It was written to be understood by the voters to whom it was submitted for approval. It is to be interpreted in the sense most obvious to the common intelligence. Its phrases are to be read and construed according to the familiar and approved usage of the language.”
This along with the link of individuals to people, in the preamble, should make the fact absolutely clear, the “rights of the individual” referred to in Article XLVIII has nothing to do with corporations. NICK help me out with "the link"...what is this link
Article XLVIII, the section known as “Excluded Matters”, states -
“ No “No
proposition inconsistent with any one of the rights of the individual, as at present declared in the declaration of rights, shall be the subject of an initiative or referendum petition.”
Note that this statement distinctly refers to “the rights of the individual”. It is important to understand how “the individual” was being viewed by Convention delegates. There was so much fear that the rights of the individual may be construed as applying to corporations that a specific amendment was adopted declaring the corporations do not have rights. Article XLVIII was passed at the same time as Article LIX, cited above, which informs us very clearly that corporations do and can not have constitutional rights in Massachusetts. As we stated above, because the legislature can basically do what they want with corporate charters and can end them, this in itself proves that corporations do not have rights. If they had rights in Massachusetts, a revocation would have to be done by constitutional amendment.
Again, it needs to be noted that Articles XLVIII and LIX were enacted at a time when there was a great concern about the corrupting influence of corporations, on the General Court, in the Commonwealth of Massachusetts.
That both Excluded Matters language and language declaring the corporations have no rights were passed at the same time makes it clear that Excluded Matters can not include rights for corporations.
On the matter of whether I&R language can ever be the subject of rights, we think it important to cite case history which referred to what is considered an “Excluded Matter” and make it clear that just because proposed language has to do with rights does not mean that it is “obviously improper” under Articles XVI and XIX. See - Associated Industries of Massachusetts v. Attorney General 418 Mass. 279 - “The initiative proposal is not “obviously improper” simply because it would place some restrictions on free speech, free press, or the right of peaceable assembly.”
To understand why this is significant, we need to back up a step and explain what free speech is and why it matters to us in this certification debate.
Section 2 - Article XXI - “The freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it can not be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.” This clearly does not mention “money.”
At this point, we would like to refer to the PassMassAmendment Legal Discussion ( www.PassMassAmendment.org ) - “Since the 1884 enactment of Massachusetts General Law Chapter 320, Section 7, and subsequent editions of that law, any solicitation or accepting of money by any elected official in the Houses of the Legislature or any public building is illegal. These laws applied to only specific physical locations, including those locations where free speech was protected. The distinct connection between disallowing money specifically where free speech was protected and the importance of protecting free speech from the influence of money can not be denied. These laws limited the use of money in places where free speech was guaranteed by the State Constitution at that time. If the framers of the law had believed that money was protected speech, they would have, at that time, not barred its use in those hallowed chambers. The law was intended to uphold the validity of the constitutional protections of our democracy by taking money out of the place of protected speech. We feel that this validates our claim that money has never been considered speech in Massachusetts. We suggest checking out the whole Legal Discussion at passmassamendment.org
We would like to point out that in 1948, Article LXXVII was enacted, thereby giving “Free Speech” to the People outside of the State House. It was added to Article XVI which guaranteed “Freedom of the Press.” Why was it not added to the original “Free Speech” guarantees of Article XXI? Our belief is that “deliberation and debate” in the State House is sacrosanct and any other “Free Speech” is subject to limitation. To this day, no political contributions can be made in the Commonwealth of Massachusetts State House and not even a political sign is allowed in the most hallowed area for “Free Speech.”
These are solid indicators that free speech is quite separate from money and that money can not be deemed as free speech.
In the paragraphs above, we show that corporations have no rights and that our ballot initiative to clarify the words in our Consitution are proper for a ballot initiative. We urge you to certify our petition.