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Living Up to Our Constitution – Part II

Sen. Sheldon Whitehouse (D-Rhode Island)

Sen. Sheldon Whitehouse (D-Rhode Island)

I recently attended the Second Annual “Living Constitution” Lecture at the Brennan Center for Justice.  The keynote speaker this year was Senator Sheldon Whitehouse and his topic was “Living Up to Our Constitution.”

Sen. Whitehouse identified four ways in which we live up to the Constitution. I am excerpting some of the best bits and breaking them into four separate posts for your contemplation this holiday weekend.

Part Two
Protecting Our Democratic Process

The second way in which we live up to our Constitution is by protecting the right to vote.  Obviously if you take away the right to vote, our Constitutional process cannot function.  I don’t mean an outright ban on the right to vote, I mean stealing away your right to vote by sly trickery. Sen. Whitehouse explains:

We must be vigilant to ensure that every American with the right to vote be given every opportunity to exercise that right.  Electioneering games that trick voters into not participating; voter caging; burdensome documentation requirements that disproportionately affect the poor and the elderly; strategically planned election venues that cause discouragingly long lines for certain voters; politically motivated investigations of voter fraud that in practice cause voter disenfranchisement—these are the modern tools to deny access to the ballot.

As many of you know, I believe passionately about protecting the right to vote. Let me put a plug in right now for the Democratic Lawyers Councils active in the various states. Some day we will have active chapters in every state. You don’t have to be a lawyer to join, just willing to learn how to protect the vote. The motto of the New York Democratic Lawyers Council — for which I am the National Committeewoman, Member of the Steering Committee, and a Regional Coordinator — is that “Every person who has the right to vote, and wishes to vote, should be able to vote and have that vote counted accurately.”

But the work of even the most devoted election protection team is not enough to fully protect our voice as citizens. Sen. Whitehouse explains:

But even unfettered ballot access is not enough if the free speech of “We, the People” is drowned out by corporations flooding the airwaves with propaganda pushing their own economic interests.  Congress and the Supreme Court have recognized for at least a century that corporate involvement in elections, with its corrupting self-interest, must be controlled.

However, the conservative bloc of the Supreme Court seems in a pending case, Citizens United v. FEC, poised to undo that plain and well-settled principle.  The Court would have to upend opinions like Austin v. Michigan State Chamber of Commerce (1990), when Justice Thurgood Marshall warned of “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”  The Court would have to overlook the legal fact that corporations are legal fictions: government-established tools for organizing human behavior.  Neither logic nor history justifies unleashing corporations from the bonds of government, freeing them to master and control the very government that created them, so that government in this country is of the CEOs, by the CEOs, and for the CEOs.

Sen. Whitehouse contemplates that it may even be necessary to amend the Constitution to limit political activity to human persons; under precedent and current law, corporations are legally “incorporeal persons.”

I make no comment about the fictional non human political activity on “V.”

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Cynthia Kouril

Cynthia Kouril

Cynthia Kouril is a former Special Assistant United States Attorney in the Southern District of New York under several different U.S. Attorneys, former counsel to the Inspector General for the N.Y.C. Department of Environmental Protection where she investigated threats to the New York City water supply and other environmental crimes, as well as public corruption and fraud against the government, former Examining Attorney at the N.Y.C. Department of Investigation and former Capital Construction Counsel at New York City Parks and Recreation.
She is now in private practice with a colleague whom she met while at the USA Attorney's Office. Ms. Kouril is a member of the Steering Committee, National Committeewoman and Regional Coordinator for the New York Democratic Lawyers Council, a member of the Program Committee of the Federal Bar Council and a member of the Election Law Committee at the Association of the Bar of the City of New York. She is active in several other Bar Associations.
Most important of all, she is a soccer mom.