Corporations Are People, Too

Warning: The following is a relatively lengthy entry on the recent and controversial Supreme Court decision overturning limitations on corporate and union political advocacy immediately preceding elections. I assume that most faithful readers of this blog are at least as interested in politics as I am, thus I wrote this piece for hard-core junkies.  For those not interested in such things, feel free to bypass.

The Supreme Court, these days binging on conservatism, sobered up long enough last week to engage in an awesome display of “liberal” jurisprudence.

Avoiding a narrow judgment in favor of a broad one, in a fit of hypocritical judicial activism, the court essentially declared in Citizens United v. Federal Election Commission that corporations—despite the fact that they are “creatures of the state“—are people, too, and that they have free-speech rights every bit as inviolable.   There are now no limitations on how corporations can attempt to influence the outcome of elections.

Inventing “rights” used to be the responsibility of liberals on the court, at least according to Constitutional purists on the right, who hate the fact that liberals have managed to find, among other ungodly things, a “right to privacy” lurking in the shadow of the Bill of Rights. 

God forbid such legal reasoning, except when it comes to creating—against a century of precedent—a free-speech right for corporations that is now superior to the rights of individuals.  While conservatism’s inner consistency may be challenged on many fronts, one thing is agonizingly consistent about it: protecting business interests above all other interests.  Thomas Frank calls this sort of thing, “industry conservatism.

Jamin Raskin, Professor of Constitutional Law at American University, said that by overturning McCain-Feingold the Court has declared

that a corporation is essentially a citizen, armed with all the political rights that we have, at the same time that the corporation has all kinds of economic perks and privileges like limited liability and perpetual life and bankruptcy protection and so on that mean that we’re basically subsidizing these entities, and sometimes directly, as we saw with the Wall Street bailout, but then they’re allowed to turn around and spend money to determine our political future, our political destiny.  So it’s a very dangerous moment for American political democracy.

Justice Stevens, in his dissent, wrote:

The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.

In the context of election to public office, the distinction between corporate and human speakers is significant.  Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process.

Much later in his opinion he wrote:

It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.

Never mind the argument from conservatives that unions are now considered people-citizens, too, supposedly providing some kind of symmetry amid the mess.  As Ted Olson, the attorney for the aggrieved Citizens United, admitted during oral argument, there were 6 million corporations (although many of them are very small) that filed tax returns in 2006. There weren’t 6 million unions the last time I checked.  And certainly no one will pretend that if there were 6 million unions (no matter how small) in this country and only a handful of corporations, that conservatives would gleefully find that unions enjoyed people-like rights.   

And George Will attempted to argue on This Week on Sunday that the real effect of the decision will be to “emancipate our non-profit advocacy corporations“—he conveniently used the Sierra Club as an example—because businesses—he conveniently used Microsoft as an example—”are not interested in getting into political fights.”  Huh? Has he been out of the country the past year while insurance companies and Wall Street bankers were making it rain cash on the Capitol?

This isn’t the first time that “principled” conservatives on the Supreme Court—some, like Scalia*, who long-windedly lecture liberals about the folly of a “living” Constitution—have sacrificed their principles to protect Republican interests.  Bush v. Gore was decided less than 10 years ago, and the country is still paying the price for that episode of conservative judicial activism.

But this decision may do more long-term damage to our democracy than even assuring the election of George W. Bush did, as hard as that is to imagine.  Nothing in recent memory has the potential to truly make our country a “fascist” state than the unrestrained corporate political advocacy now permissable.

I say, “potential,” because unlike many critics of the Court’s majority decision, I don’t have the ability to calculate all of the variables that are in play, including whether foreigners—through global corporate entities—will now be able to influence American elections.  (Could Osama bin Laden form a multinational corporation and run ads in the United States designed to influence elections? There doesn’t appear to be anything in the majority’s opinion to prohibit such a thing.)

And although I have much sympathy for the position of  free-speech advocates like Jonathan Turley, who have genuine fears that campaign finance limitations may have a “chilling effect” on our First Amendment rights (Justice Kennedy, writing for the majority, made this point), there isn’t much evidence that such an effect has resulted from McCain-Feingold—a point Justice Stevens made in his dissent.

Additionally, it is possible that Congress will tinker with laws governing the nature of corporations—after all, Congress created them and enable them to exist—to counter the ill effects of the decision.  There may be enough sympathetic Republicans to overcome yet another likely filibuster by conservatives in the Senate against such tinkering.

So, after having listened to the oral arguments from last fall, after having muddled through the opinions of the various justices, and after considering a sampling of opinion from polarized legal analysts, I found very little ground left untilled that a lowly blogger could fruitfully work.

Thus, I’ll content myself with pointing out the fact that yet another example has been offered to the public—to the extent that it is paying attention—of conservatism’s flawed, sometimes ad hoc legal theories and its phony populism.  And although they are not, teapartiers should be screaming epithets night and day about this decision because of its potential to completely drown out the voice of “the people.” 

But so clever are corporate and business interests, that they have managed to purchase the newest incarnation of populism, angry teabaggers who have bought into the laissez-faire mythology broadcast by conservative shamans. Oddly, Citizens United, which appealed the case to the Supreme Court, claims on its website that it is, “Dedicated to restoring our government to citizen control.”  

Only in the world of delusional conservatism, does the recent decision do that.

__________________________________________________________

*Reading Scalia’s concurring opinion in the case is, as usual, quite entertaining.  But he strains to explain why his default position on the First Amendment is to include non-persons (corporations) within its purview.  He also makes an awkward (and untenable) argument that the right of individuals to freely associate with other persons under the umbrella of political parties is equivalent to the association of individuals in a corporation.  There is a presumption that when one contributes money to a political party, it is authorizing the party to speak on one’s behalf. There is no such presumption inherent in an individual’s association with a corporation. 

17 Comments

  1. scott

     /  January 26, 2010

    So this really happened? I thought it was a bad dream! So, I guess this is what happens when the pesky citizens actually elect people to Washington who at least claim to be in their corner…this backlash from the corporate world, and their minions, the wannabe capitalists…God, they’re so confused! And where is the fight? None from the “leaders”. there just isn’t any significant fight that I can see…not even much more about it on the news shows this morning. And Obama, constantly trying to appease the right…ugh. I’m really disheartened by it all.

    Like

    • Duane Graham

       /  January 26, 2010

      Scott,

      Don’t give up on the Democrats or Obama just yet. I agree that some of it is disheartening, particularly when the so-called “liberal” media is spinning the Massachusetts senate race as if the Democrats LOST CONTROL of the Congress. But worse yet, the Democrats are acting like that’s true. It is sickening.

      But if Obama means what he said the other day—that he would rather be a really good one-term president than an average two-termer—then he will push the Democrats in Congress to follow through on the agenda they ran on only a year and a half ago and he will realize his attempt to be bi-partisan is Quixotic at best and naive at worst.

      Your sentiment, though, I am afraid is catching on among those of us who worked hard for the return of Democrats to prominence. Some Democrats (but certainly not all) seem more interested in being reelected than getting something important done. I am not ready to give up myself, because it would be hypocritical for me to give up on Democrats while urging them not to give up on the things that are important.

      We’ve got to continue insisting that Democrats follow through on their promises and we’ve got to keep fighting the teabaggers. The alternative is having teabaggers dominate the landscape.

      Duane

      Like

  2. ansonburlingame

     /  January 26, 2010

    Scott and Duane,

    Wait a minute. I thought this blog was about free speech and corporations. Now you are writing about the future of Dems. I will stick, briefly to the original subject.

    “Congress shall make no law….. abridging the freedom of speech….”

    That’s it for the First Amendment as far as free speech goes. What is not clear in that statement other than taking on the definition of “abridging” perhaps. That would be like someone opposed to the 2nd Amendment arguing the meaning of “bear arms” in my view.

    “NO LAWS” …abridging free speech. It didn’t say “except …..” like “non-people legal entities” or “non-people groups or legal entity unions, whether 1 or 1,000 or whatever of such. Can a legal entity “speak”? Hmmmm? Maybe not. But how about someone representing that legal entity, like a lawyer? Can that lawyer speak in court representing that non-speaking legal entity? How about the CEO in an advertisment promoting his product? Now how about the CEO representing his choosen candidate in an election? Opps he can do the product thing to his hearts content, but certainly not the latter for a candidate you say.

    Well that CEO is speaking loud and clear in support of his non-person legal entity is he not, in both cases. How in the hell do you allow one and prevent the other BY LAW. Sure looks like abridgment of free speech to me.

    NOW, I am all in favor of getting BIG money, regardless of its source, out of politics. I would start with Hollywood and George Sorous but I can’t do that constitutionally. You want to keep some rich, right wing, greedy, people cheating, downright discusting “banker” or something from speaking. Go ahead and do it but we both must be constitutional.

    To me the flaw that runs through the argument seems to be when we equate money with speech. Somewhere in there should rest a legal thread that deserves pulling hard. But who am I but a lowly conservative blogger.

    Put limits on money in campaigns, equally and across the board for all and a lot of the influence goes away.

    Who knows I may write a blog considering that approach. But don’t forget, Iwant undue corporate, union, Hollywood, and the list goes on forwever out of politics.

    I for one never watch that crap to begin with but that is just me. I will make up my own mind reading open source materials, history, political science, etc. then vote as I damn well please, Acorn or Swift Boats to be scorned equally.

    Anson

    Like

  3. Duane Graham

     /  January 26, 2010

    Anson,

    Conservative thinkers have always argued against campaign finance reform by stating that money = speech. I used to buy into that notion. But to be honest, when I was challenged on it, I had trouble defending it, even when I wanted it to be true.

    The problem is that although money buys speech, especially during campaigns, money is not equally distributed and therefore speech is not equally distributed. We all don’t have as much money has Hollywood types or Texas oilmen, so if we don’t regulate how much speech they can purchase, they could theoretically purchase it all, at least on television and radio. There are only so many hours in a broadcast day. That’s why the former law addressed broadcast media and not print (besides the fact that the airwaves are owned by the public).

    As for your other comments about the “absolute” nature of the First Amendment, I’ll simply use the reply I gave to another comment you made:

    Besides the obvious “yelling fire in a crowded theatre” restriction, or laws against libel and slander or false advertising, there are other restrictions on free speech that Congress has enacted and the Supreme Court has upheld. Here, I’ll let Justice Stevens explain it:

    …in a variety of contexts, we have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students,41 prisoners,42 members of the Armed Forces,43 foreigners,44 and its own employees.45

    When such restrictions are justified by a legitimate governmental interest, they do not necessarily raise constitutional problems.46

    When it comes to the Constitution, like many other things, there are no absolutes.

    Duane

    Like

  4. ansonburlingame

     /  January 27, 2010

    Duane,

    I would (and do so very quickly herein) take Justice Stevens on. As a member of the Armed Forces I could say anything I wanted to say, anytime, anywhere. BUT if I divulged classifed information I would be prosecuted, not for the free speech but for divulging classified information.

    A member of any government organization, particularly the Armed Forces, voluntarily gives up some freedom by joining that organization. To him respecting the chain of command, as a condition of employment, is just that. He can always leave the employment and rant about the chain of command to his heart’s content, as long as he does not divulge classified information in doing so. You could apply that logic to any corporate or other organization.

    EVERYONE is guaranteed free speech. Employment is not a constitutional guanatee, except for liberals and some crazy thinging union members.

    As for the “fire in the theater” point, come on. That is speech CAUSING violent action which of course is banned as it should be. If I gave a speech telling listners to take their guns and kill the police, I would not be charged as long as they ignored me. If police got killed, I would be and in my view should be.

    AGAIN, I say, I want to get money, big money, out of politics, CONSTITUTIONALLY. My guess there is a way to do that. Yes, it is harder, but in my view doable. UNEQUALLY restricting money from politics does not seem to work. How about if we EQUALLY limit such money, from any donor to any campaign? See my point.

    Try this one. There are 300 Million Americans. Limit Presidential (or all political party) contributions to $1 per American per year. I can give it personally or give it through my union or corporation or “bridge club”. If I give it personally, my corporation, union, etc. cannot give it for me again. One time only, per person per year.

    How do you “police” that requirement. Easy. Count up all the money in all the Presidential (or party) war chests and when it goes over $300 Million dollar, cut it off, period.

    I see no constitutional infringement on that issue, at least “off the top”. We can all speak, but in politics, we do it equally. Wonder how Justice’s Stevens and Scalia would react to that little inane thought?

    Anson

    Like

    • Duane Graham

       /  January 27, 2010

      Anson,

      So, we finally agree that there is no such thing as absolute free speech. Good.

      We also agree that people ought to have equal opportunity to speak in politics and I think we agree that money distorts the process and gives those with money a greater right to speak. So, to make your idea simpler, why don’t we have publically financed campaigns? We could raise the money the same way it’s done now, except the “check off” on the tax form wouldn’t be voluntary. It would be a “fair election” tax of sorts. Politicians and parties would be limited to X amount of dollars to conduct their campaign, based on some agreed-to measure of public interest in it. And it would be stipulated that campaigns could spend money they raised on their own (under current guidelines) up until, say, 3 months before an election. Then money spent would be limited by the amount doled out by the feds.

      Oh, yeah. Congress would also have to pass a law restricting the Supreme Court’s jurisdiction over the matter.

      There. It’s done. Problem solved.

      Duane

      Like

  5. ansonburlingame

     /  January 27, 2010

    duane,

    NO, no. There is indeed absolute free speech. You just might lose your job or go to jail to practice it. It’s you choice thus freedom. My tongue is stuck to my cheek.

    I have no problem with public financing of elections except it should be voluntary. No contributions, no advertising. They can all stand on a stump for free and talk all they want. We can then just read about it instead of being glued to the tube. Yikes what a thought. Thank you.

    The Supreme Court might well pass on that as well.

    Boy it warms my heart to hear a liberal scream about the Court. Conservative have been doing it since 1933 when Roosevelt packed the court and we are just now getting rid of the packing (or baggage as the case may be.)

    You guys had you time in the barrel for 7 decades. Permit ours for a few years anyhow.

    Anson

    Like

  6. Duane Graham

     /  January 27, 2010

    Anson,

    You are quite mistaken about Roosevelt’s “packing the court” in 1933 or any other time. He failed in his efforts to do so, and it cost him big time in prestige and effectiveness. So, try again.

    By the way, Republicans have appointed most of the justices to the Court since Roosevelt, so once gain you have to blame your own party for the things you hate.

    Duane

    Like

  7. ansonburlingame

     /  January 28, 2010

    Duane,

    12 out of the last 15 justices as I recall and we still have 4 dummies on board!!!

    Incidently, I don’t “hate” complying with the common sense words in the constitution. I am all for freedom of speech for example without you liberals tinkering around with the concept.

    I support gun control but prefer the common sense words compliance with the constitution and thus await, someday, an amendment that will bring the 2nd Amendment into the reality of today’s world. Probably a long wait considering opposition to such. But again, I’ll respect the constitution over any current political issue I want to fix NOW.

    I repeat as well my desire to get big money out of politics. But again it is more important to me to respect the constitution before leaping to some limitation on free speech.

    In that case no amendment is needed in my view, just figure out a way to keep money limited, not free speech. Tough but doable in my view. We just have to THINK hard, something beyond the ability of most liberals.

    Anson

    Like

    • Duane Graham

       /  January 28, 2010

      Anson,

      Based on what you said about the Constitution, it sounds like you do think it is a “suicide pact.”

      Duane

      Like

  8. ansonburlingame

     /  January 29, 2010

    To Anybody,

    The Constitution of the United States of America is the finest document for a way to govern than any other yet created by mankind. Follow it is my suggestion. The words are simple and straightfoward. If you don’t like the simple words change it in accordance with that document.

    The greatest harm is to change the constitution to fit some current political (popular) view. That is why we have elections, to follow the constitution and within it’s boundaries, govern. Want to govern outside of those boundaries (like control guns or limit free speech) then change the constitution.

    But, but…. that is too hard and too time consuming you say. We want our changes NOW. Well folks, that is exactly why the constitution was written in its form, to prevent exactly that.

    Can you imagine if we held a constitutional convention today and started with a clean sheet of paper as they did in what 1787 or so. Before all was said and done we would probably be fighting another Revolution, but this time around it would be with each other.

    The constitution set the boundaries of liberty in very firm ground using the best thoughts and experiences of mankind at the time. We have changed it usually for the better over the last 200 plus years.

    We have also tinkered around the edges of the constitution with all sorts of “legal reasoning” like penumbras, implications, you name it. Sometimes such tinkering meets constitutional standards, sometimes not. On balance we have made steady progress resetting the boundaries of liberty such as with slavery.

    Now you want to argue Supreme Court decisions over the centuries that still cause concern? Try some of the interpretations of the 14th amendment. Some conservatives (pretty ???? ones in my view) call for cancelling or changing that amendment because of liberal interpretations of “equal protection” issues. Somehow we got Affirmative Action out of such “legal reasoning” for example.

    Now liberals are screaming about the recent decision related to Free Speech. Well I suggest they go along with conservatives and scream loudly to revise both the 1st and 14th amendment. There is a crazy bipartisan approach. I’ll change yours if you change mine!!!

    But no, we don’t even read the simple words it seems sometimes we just yell about “legal reasoning” like corporations are not people and ancestors of slaves get preference so they can have equal protection!!!

    Yikes!!

    Anson

    Like

    • Duane Graham

       /  January 29, 2010

      It’s amazing that you are defending what the Court has done by using the argument that the words of the Constitution are “simple and straightforward.”

      Okay. Here are the words: “Congress shall make no law…abridging the freedom of speech.”

      From those words, the Court has declared that corporations—which exist only because government charters them—have the rights of living, breathing people—citizens—of our Republic.

      Under the terms of our founding documents, our “Creator” endowed us—people—with certain unalienable rights, which are recognized in the Declaration of Independence and the Constitution. Now the Court has extended those rights to a non-living entity that can be owned by foreign interests and will undoubtably have extraordinary effects on our direction as a country.

      That’s a long way from simple and straightforward judging.

      Duane

      Like

  9. ansonburlingame

     /  January 30, 2010

    Duane,

    And thus we complete the circular argument about the “personhood” of a corporation.

    Go back to the top of these comments where I wrote, “Well that CEO is speaking loud and clear in support of his non-person legal entity is he not, in both cases. How in the hell do you allow one and prevent the other BY LAW. Sure looks like abridgment of free speech to me.”

    I won’t bore you with the whole rebutal, just that piece of it.

    People speak for corporations and thus should be free in doing so. Pretty simple even though you want to shut them up at least to a degree.

    Citizens have a “right” to “bear arms”. Again pretty simple even though I personally would like to see that right restricted.

    Anson

    Like

    • Duane Graham

       /  January 30, 2010

      Anson,

      Your example of the CEO “speaking” for his corporation is a perfect one—to prove MY point. Right now, the CEO can “speak” with his own money and with his own words and with his own vote. He is, after all, a person under the “simple and straightforward” language of the Constitution. But you are saying that he gets to speak not only as his own person, but now he gets to speak as a corporation, which gives him even more “speech.” And while he is currently limited as a person to how much he can contribute, because he is the CEO of a corporation, he can now give unlimited money and have much more influence than before. That’s really insane, if you think about it. It seems to run counter to what you have said in the past about the influence of money in politics.

      Next, I suppose you will insist that corporations can also go to the polls and vote in the next election. Except that they can’t because they don’t have any feet or arms or skin or muscles or bones or brains—they’re not human beings. I suppose we could allow the CEO to vote on his company’s behalf. He would walk in and demand two ballots, one for himself and one for his corporation.

      Or, better yet, why not have Toyota Inc. run as a candidate and actually hold an office? Again, someone could stand in for Toyota, you know, someone like a living, breathing human being that would speak for Toyota and represent them. Oh wait—that’s what may happen.

      Duane

      Like

  10. ansonburlingame

     /  January 31, 2010

    duane,

    And the circle keeps on going.

    “How about the CEO in an advertisment promoting his product? Now how about the CEO representing his choosen candidate in an election? Opps he can do the product thing to his hearts content, but certainly not the latter for a candidate you say.”

    Anson

    Like

    • Duane Graham

       /  January 31, 2010

      Anson,

      If you can’t make a distinction between a CEO (a person) and his or her corporation (a non-person), then I’m afraid our discussion is at a dead end. “Persons” were envisioned as having unalienable rights under our system because our Founders posited that those rights were “endowed by their Creator.” Maybe I missed something in the book of Genesis about God creating Adam and Eve and Exxon.

      Also, you fail to make a distinction between promoting products and promoting particular politics. Again, if you don’t think that is an important distinction, then we will never agree.

      Duane

      Like

  11. ansonburlingame

     /  February 1, 2010

    You got that exactly correct.

    “then we will never agree.”

    Anson

    Like

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