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Citizens United And The Foolish Attack On Corporate Personhood

The controversy on the left over the Supreme Court’s 2010 decision in Citizens United v. FEC  has never really gone away. It became a cause for controversy between the Executive and Judicial Branches when President Obama openly criticized the decision during his State Of The Union Address in 2010, with most of the Court in attendance. It was a campaign theme for Democrats during the 2010 midterms, although not a very successful ones. The Occupy movement seems to have picked it out as one of the things that they claim is destroying American politics. And, several Democratic Congressmen have introduced proposed Constitutional Amendments that would purport to overrule the Court’s decision, and some would even go further than that. There are several versions of such an Amendment floating around Capitol Hill, btu the most prominent version seems to be the one introduced by a group of Democratic Congressmen and Senator Bernie Sanders, and it reads like this:

Section 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.

Section 2. Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.

Section 3. Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.

Section 4. Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.

Eugene Volokh points out the most obvious problem with the proposed Amendment, namely that it would essentially mean that The New York Times has no First Amendment rights:

Nearly all newspapers, TV stations, cable networks, and radio stations (except of course for nonprofits such as NPR) are organized as corporations or other entities established for business purposes. Under section 3, they “shall be prohibited” from making expenditures “in any election of any candidate … or the vote upon any ballot measure.” Since to write or print or broadcast anything, newspapers, networks, and broadcasters must spend money, this would ban — not just authorize Congress to ban, but itself ban — editorials supporting or opposing a candidate or a ballot measure. (“Shall be” in the Constitution is generally language that indicates that something becomes the law without further Congressional action, e.g., “This Constitution … shall be the supreme Law of the Land” and “The executive Power shall be vested in a President of the United States of America.”)

To be sure, section 2 does say that such entities are “subject to regulation … through the legislative process so long as such regulations … do not limit the freedom of the press.” But section 1 tells us that business entities do not have constitutional rights; presumably, then, the freedom of the press (one of “the rights protected by the Constitution”) doesn’t extend to them. And since section 2 applies “the freedom of the press” just to regulations “through the legislative process,” and section 3 prohibits expenditures through the constitution itself, it appears that section 2’s supposed protection for the liberty of the press doesn’t even purport to limit section 3’s prohibition. Certainly nothing in section 3’s flat ban has any proviso saving the “freedom of the press.”

It goes beyond First Amendment rights, of course. If corporations don’t have the rights of “natural persons,” then that means that the states and Federal Government can seize corporate property without the either due process or just compensation required by the Fifth Amendment, that Federal and State law enforcement could conduct searches of corporate property without having probable cause that a crime had been committed, or that corporations would not be entitled to a jury trial in civil lawsuits against him. Volokh points out in a later post that the proposed Amendment also would provide that non-profit entities have more rights than for-profit entities, a distinction that the law has never once recognized in this country. In other words, an anti-business non-profit would be free to contribute to candidates, advocate on their behalf, and take positions on public issues but the Wall Street Journal would not.

There’s no chance that this Amendment will ever make it through Congress, which is fortunate, but it nonetheless reveals a fundamental misunderstanding about the entire idea of Corporate Personhood that has become pervasive in the wake of Citizens United, the criticism of which usually devolves down into the trite, easy to remember, but ultimately incomplete idea that “Corporations don’t have rights, people do.”  The problem, as Ilya Somin wrote in the wake of the decision itself, is that this misunderstands the nature of corporations and individual liberty:

Corporate participation in public discourse has long been a controversial issue, one that was reignited by the Supreme Court’s decision in Citizens United v. FEC, 130 S. Ct. 876 (2010). Much of the criticism of Citizens United stems from the claim that the Constitution does not protect corporations because they are not “real” people. While it’s true that corporations aren’t human beings, that truism is constitutionally irrelevant because corporations are formed by individuals as a means of exercising their constitutionally protected rights. When individuals pool their resources and speak under the legal fiction of a corporation, they do not lose their rights. It cannot be any other way; in a world where corporations are not entitled to constitutional protections, the police would be free to storm office buildings and seize computers or documents. The mayor of New York City could exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there. Moreover, the government would be able to censor all corporate speech, including that of so-called media corporations. In short, rights-bearing individuals do not forfeit those rights when they associate in groups. This essay will demonstrate why the common argument that corporations lack rights because they aren’t people demonstrates a fundamental misunderstanding of both the nature of corporations and the First Amendment.

More importantly, though, as The Economist’s Schumpeter pointed out in an essay earlier this year, it is the legal concept of corporate personhood that makes the modern economy possible:

The legal conceit that companies are natural persons is vital to capitalism. It simplifies litigation greatly: companies can act like individuals when it comes to owning property or making contracts. Timur Kuran of Duke University argues that the idea of corporate personhood goes a long way to explaining why the West pulled ahead of the Muslim world from the 16th century onwards. Muslim business groups were nothing more than temporary agglomerations which dissolved when any partner died or withdrew. Legal personhood gave Western firms longevity.

The concept of companies as people became ever more vital as capitalism developed. Until the mid-19th century companies (as opposed to partnerships) were regulated by corporate charters which laid down tight rules about what they could do. But reformers used the idea that companies, like people, should be captains of their own souls, to free them from these restrictions. The result of this liberation was an explosion of energy: Western companies turbocharged the industrial revolution and laid the foundations for mass prosperity

Finally, as Stephen Bainbridge noted yesterday, corporate personhood protects consumers, creditors, and individuals who have legal claims against a corporate entity by ensuring that business assets are not depleted by the personal financial difficulties of the business owners:

An even more useful feature of the corporation’s legal personality, however, is that it allows partitioning of business assets from the personal assets of shareholders, managers, and other corporate constituents.  This partitioning has two important aspects. On the one hand, asset partitioning creates a distinct pool of assets belonging to the firm on which the firm’s creditors have a claim that is prior to the claims of personal creditors of the corporation’s constituencies. By eliminating the risk that the firm will be affected by the financial difficulties of its constituencies, asset partitioning reduces the risks borne by creditors and thus enables the firm to raise capital at a lower cost. On the other hand, asset partitioning also protects the personal assets of the corporation’s constituencies from the vicissitudes of corporate life. The doctrine of limited liability means that creditors of the firm may not reach the personal assets of shareholders or other corporate constituents. Just how do the brilliant legal minds behind this movement propose to preserve this feature of corporate personhood if they succeed?

I doubt they’ve really thought it through. As Professor Bainbridge goes on to note, most of the attacks on corporate personhood have little to do with an in depth understanding of the nature of the complex legal relationships that make the modern economy possible and everything to do with a visceral reaction to a Supreme Court decision that the critics clearly don’t really understand. For one thing, one wonders if any of them have given any thought to the fact that Citizens United doesn’t just apply to the Koch Brothers, it applies to the AFL-CIO too, not to mention the innumerable advocacy groups on the left that are organized as corporations and limited liability companies. Are they really blind enough not to see that what the Court did in that case was to expand the right to speak in the face of a Federal Law that imposed an outright ban on speech within a certain amount of time before an election. How, exactly, does it protect the political process to restrict the marketplace of ideas? As with most campaign finance laws, the restrictions in Citizens United  were clearly designed mostly to protect incumbents from criticism and further disadvantage challengers, who already face an uphill battle in an era when 90% of Congressmen are re-elected.

The entire conservation over Citizens United, then, reveals a fundamental misunderstanding of what corporate personhood is and what purpose it serves. When you do something to a corporation, you are, in the end, doing something to the individuals who own that corporation. American law has recognized corporate personhood for corporations in part because of the recognition that the interests of  corporate directors and officers may not necessarily coincide with those of the corporation itself. Thus, the law has creates fiduciary duties that bind these officers and directors, provides opportunities for shareholders to challenge the decisions of the board, and requires corporations to retain legal counsel separate and distinct from that representing the interests of officers and directors. The law considers the corporation a de jure person for these purposes in order to protect the interests of the individuals who make up the corporation. When we speak of a corporation having rights, those rights exist because corporations are  made up of individuals who have Constitutional, and natural, rights. Rejecting corporate personhood and accepting the argument that corporations have no rights means you are also accepting that individuals lose their rights any time they act as a group toward a common purpose. One would think that this would have come as something of a shock to Martin Luther King, Jr and the Southern Christian Leadership Conference, or the members of the American Civil Liberties Union. On some level the critics are right, corporations don’t have rights. The people that make up those corporations do, however, and they don’t lose those rights just because they’re part of a larger group of people.

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. john personna says:

    it would essentially mean that The New York Times has no First Amendment rights

    roflmao. Let the thread ensue …

    Like or Dislike: Thumb up 12 Thumb down 3

  2. WR says:

    You’d think if there were a real case against stripping away corporate personhood, Doug would have used it, instead of inventing this ludicrous charge that the NY Times would have no first admendment rights. The NY Times derives its first amendment rights not from its corporate personhood but, shockingly, from the first amendment. I know it’s been a long time since law school, Doug, but you might want to check that one out.

    Highly-rated. Helpful or Unhelpful: Thumb up 28 Thumb down 8

  3. Vast Variety says:

    This amendment would not make it possible for the government to confiscate corporate assets without due process. The corporation and those assets are the personal property of it’s shareholders. Corporations are a thing, property, they are not a person.

    The problem that has been created with Citizens United is the fact that now you have people using corporations to hide their contributions to campaigns and political causes. As a person I have every right to know where a political campaign, whether it be for a politician or a political cause such as the discriminatory constitutional amendment that will be on the ballot in Minnesota banning marriage equality, is getting it’s money from. Disclosure laws need to catch up with the nightmare that has become the aftermath of the Citizens United ruling.

    Just look at what is going on with all the SuperPacs.

    The court didn’t expand the right of free speech in this case… it expanded the ability to hide who is doing the speaking.

    Highly-rated. Helpful or Unhelpful: Thumb up 29 Thumb down 4

  4. michael reynolds says:

    Excellent job, Doug, of demonstrating the utter vacuity and imbecility of the Citizens United decision. Kudos.

    Hot debate. What do you think? Thumb up 21 Thumb down 8

  5. michael reynolds says:

    I wonder how we managed to have a free press during the preceding 200 plus years?

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 4

  6. Ron Beasley says:

    Doug you have truly outdone yourself. This is by far one of the stupidest posts you have ever written.

    Highly-rated. Helpful or Unhelpful: Thumb up 24 Thumb down 8

  7. Your one-line responses reveal your partisan biases are unable to be challenged by, you know, the facts and the law. Hey, whatever works

    Poorly-rated. Helpful or Unhelpful: Thumb up 13 Thumb down 32

  8. @Vast Variety:

    Shareholders don’t own corporate property they have no standing to assert 4th or 5th Amendment rights under that situation.

    Like or Dislike: Thumb up 6 Thumb down 10

  9. @Vast Variety:

    As to your second point, anonymous speech has been a recognized right since the founding of the Republic. I direct your attention no further than the at the time anonymous author(s) of The Federalist Papers

    Hot debate. What do you think? Thumb up 10 Thumb down 11

  10. sam says:

    @Doug

    corporations would not be entitled to a jury trial in civil lawsuits against him [sic]

    Category mistake that undergirds all the arguments, I think. Here’s an interesting question: What penalties are natural persons subject to that corporate persons are not? Here’s one: A natural person can be put in the slammer, but a corporate person cannot. But when Doug says,

    When you do something to a corporation, you are, in the end, doing something to the individuals who own that corporation.

    Can we not infer, then, that when the corporation does something illegal, the individuals who own the corporation are culpable? And, thus, cannot the individuals who own the corporation be subject to imprisonment if the offense is so punishable?

    Highly-rated. Helpful or Unhelpful: Thumb up 26 Thumb down 2

  11. Hey Norm says:

    I’m just going to sit back and wait for the NYTimes, or Koch Bros. Industries, or the AFL-CIO to run for President.

    Like or Dislike: Thumb up 14 Thumb down 4

  12. michael reynolds says:

    @Doug Mataconis:
    And yet for the 200 plus years this country has existed the government did not go around randomly seizing corporate property. What an amazing oversight on their part. The NYT has been around since 1851 — somehow managed to publish.

    Our biases? Hah.

    Hot debate. What do you think? Thumb up 20 Thumb down 6

  13. b-psycho says:

    The problem with the corporate form is not rights, it is privileges.

    No, people organizing for a common interest does not void their rights in any way, shape or form. But the state should not grant some forms of organizing privileges over others.

    Like or Dislike: Thumb up 9 Thumb down 2

  14. @michael reynolds:

    Because until the intellectual pinheads who came up with the mindless attacks on corporate personhood came around, nobody ever thought such a thing was conceivable.

    As for CU, I support it because it removed a pre-publication restriction on speech and as far as I’m concerned those are always bad.

    Hot debate. What do you think? Thumb up 10 Thumb down 17

  15. michael reynolds says:

    @Doug Mataconis:

    CU is a radical fix to a non-existent problem for the purpose of increasing corporate dominance of American political life and reducing the voter to irrelevance. Because that’s what the perverted notion of “conservatism” has come to be. The rest is pure, distilled essence of Murdoch media bullsh-t.

    Highly-rated. Helpful or Unhelpful: Thumb up 26 Thumb down 9

  16. Moosebreath says:

    Hey Norm,

    “I’m just going to sit back and wait for the NYTimes, or Koch Bros. Industries, or the AFL-CIO to run for President. ”

    I’m waiting for them to register to vote. I expect an exception will be carved out of voter ID laws for them by the Gov. Walkers of the world.

    Like or Dislike: Thumb up 11 Thumb down 5

  17. john personna says:

    You know, when I was working on Clean Air Act issues, one of the strange things I learned of that law was the idea of a “designated felon.” Basically a corporate officer responsible for the Act’s compliance faced personal criminal consequences in event of non-compliance.

    That was a 1990 law, before Citizens United.

    I don’t suppose Doug is ready for corporations themselves to face felony charges?

    No, Doug (and his linked-in crew) just want to peel off good benefits of personhood and give them to corporations, leaving the problematic ones behind.

    (Man, when Microsoft Corporation faked evidence before federal court, wouldn’t it have been awesome for them to be, you know, responsible?)

    Like or Dislike: Thumb up 14 Thumb down 5

  18. Vast Variety says:

    @Doug Mataconis: In order for our election system to operate effectively there has to be a method for the people to police the system. Citizens United is a road block to that process.

    Like or Dislike: Thumb up 10 Thumb down 4

  19. Asterion says:

    I have really tried to wrap my head around the arguments in favor of Citizen’s United, but have thus far remained (apparently) oblivious.

    It seems to me that the arguments established by Mr. Mataconis are as follows:

    1) Unless corporations are considered people under the law and afforded the natural rights that follow such consideration, then they are left vulnerable to attacks that would otherwise be illegal.

    2) People do not lose rights when associated with other people.

    Now I’m no expert, but it seems to me that his second argument negates the possibility of the first ever occurring. We can see this demonstrated in his own examples. Were a search of corporate premises required in furtherance of a criminal investigation, then the due process required by the Fifth Amendment would still apply. After all, someone owns that property — presumably someone with rights under the Constitution. And if that’s the case, then Citizen’s United is a spurious attempt to correct a problem that doesn’t exist (which one could assume means that the problem it does correct — maybe the desire of board members to donate large sums of money to politically volatile causes anonymously so as to avoid consumer backlash — must be one that the beneficiaries of the law would rather not have aired).

    I see it like this: I am a person (analogous to a corporate chairperson). I own a house (analogous to corporate property). I have a family (analogous to a “larger group of people”). If the government wants to search my house, then they need to have a good case against someone who lives there. If one of my family says something incendiary, then that’s their right. If my property causes harm to another person, as its owner, I am responsible.

    So if these are indeed the driving concerns behind Citizen’s United, then I don’t see how they are concerns at all. Which must mean the law is driven by other concerns.

    Like or Dislike: Thumb up 7 Thumb down 6

  20. John Hall says:

    “Coroorate Personhood” is something of a myth. Corporations apparently are able to avoid paying the taxes the other citizens have to pay. They receive government bailouts when they do business so badly they become endangered, whereas average American goes to the poorhouse. Lastly, average person has a limit to how much they can donate to a political campaign. But corporate person can donate any amount of money. And that last point is the biggest issue with Citizens United. The influence of money in politics is the biggest factor in the undoing of our democracy. That’s why it’s a bad decision by the Supreme Court. There should at least be a cap as to how much can be contributed.

    Like or Dislike: Thumb up 10 Thumb down 5

  21. ponce says:

    Quoting 4 or 5 fringe right lawyers isn’t really a well-reasoned argument, Doug.

    Like or Dislike: Thumb up 5 Thumb down 9

  22. Shannon's Mouse says:

    @Doug Mataconis: Intellectual pinheads like Thomas Jefferson, yes?

    Like or Dislike: Thumb up 9 Thumb down 4

  23. Tano says:

    Just to focus on one piece of this argument – where Doug quotes Ilya Somin.

    The quoted passage seems utterly ridiculous to me – one big non-sequitor. If you deny personhood to corporations, that does not mean you deny those rights to the shareholders of the corporation. The mayor of NY seizing Rock Center would be an unconstitutional seizure of the property of the shareholders, even if you do not recognize the personhood of the corporation.

    When you see such utterly phony arguments like this, it is evidence of the weakness of the larger argument.

    Like or Dislike: Thumb up 6 Thumb down 4

  24. Ron Beasley says:

    @john personna:

    I don’t suppose Doug is ready for corporations themselves to face felony charges?

    No, Doug (and his linked-in crew) just want to peel off good benefits of personhood and give them to corporations, leaving the problematic ones behind.

    Precisely: this is just a variation of privatize the profits and socialize the loses.

    Like or Dislike: Thumb up 13 Thumb down 3

  25. @michael reynolds:

    Holy crap, how can you spout this and keep a straight face?

    A documentary filmmaker created a film about a candidate for the presidency because, shockingly, he did not like her and thought that she was bad for the country. He utilized his First Amendment rights, but because he created the film through a company–because it would have been prohibitively expensive to do it on his own–it was banned.

    Now think of a left-wing group did the same thing about a Republican candidate. Would you say the same thing? Would you still be against the Citizens United case?

    I find it remarkable that people here are all for the First Amendment…until someone says something they don’t like. Jeez lawheez.

    Like or Dislike: Thumb up 8 Thumb down 5

  26. One thing people keep arguing is that if you take the property of the shareholders, it would still belong to them, not the “corporation.” But it would be impossible to find which shareholder owned which piece of property had been taken, or divy up the ownership shares, etc. Unless you were to treat all the shareholders as a group–aka a “corporation…”

    Like or Dislike: Thumb up 3 Thumb down 2

  27. Console says:

    Meh, the first amendment contains a right to free speech AND free press. Which would suggest a bit of difference between businesses and people.

    Like or Dislike: Thumb up 7 Thumb down 3

  28. michael reynolds says:

    @Jeremy Kolassa:
    Link?

    Like or Dislike: Thumb up 2 Thumb down 1

  29. Hey Norm says:

    @ Jeremy…
    “…He utilized his First Amendment rights, but because he created the film through a company–because it would have been prohibitively expensive to do it on his own…”
    Exactly…thank you for making the point that With the CU ruling the Koch Bros. Supreme Court prioritized corporate entities over individuals.

    Like or Dislike: Thumb up 7 Thumb down 3

  30. PD Shaw says:

    Sanders amendment goes further than the dissenting opinion in CItizens United, which IMHO recognized that corporations have constitutional rights as settled law.

    The primary distinction was that the majority saw this as regulation of political speech, which should almost always be unconsitutional. Recall that the initial solicitor’s general agreed that the principle the federal government was advocating would authorize a law that banned the sale of books about Hillary Clinton before an election.

    The dissent saw the restriction as de minimis, merely requiring corporations to form pacs, and that there was a legitimate purpose in limitting election spending from foreign sources.

    These are balancing argument, which are not as incendiary as they are being made out to be. The notion that corporations are “persons” existed when the Constitution was drafted. Even Sanders’ amdnement incorporates the well-established language of persons, being either natural or artificial.

    Like or Dislike: Thumb up 4 Thumb down 1

  31. anjin-san says:

    This is by far one of the stupidest posts you have ever written.

    Thats a bold statement. We are talking about a deep pool of dumb.

    Like or Dislike: Thumb up 10 Thumb down 4

  32. PD Shaw says:

    @sam: Corporations can and are held criminally liable. It is true that a corporation cannot be put in jail, but monetary penalties and property seizures are available.

    But just because a corporation can be criminally liable does not mean that individuals within the corporation cannot be criminally liable too if they personally participated in the crime. Simple ownership wouldn’t be sufficient. Exxon was indicted in the Valdez spill (they pled out) and the captain was convicted, but owning Exxon stock was not a criminal conduct.

    Like or Dislike: Thumb up 3 Thumb down 0

  33. michael reynolds says:

    @PD Shaw:
    I can’t seem to find the word “corporation” in the US Constitution. Did I miss it?

    Like or Dislike: Thumb up 4 Thumb down 3

  34. sam says:

    @Jeremy Kolassa:

    He utilized his First Amendment rights, but because he created the film through a company–because it would have been prohibitively expensive to do it on his own–it was banned.

    The film wasn’t “banned” at all.

    “Hillary: The Movie” came and went without much of a splash last year. Reviews were not flattering, Hillary Rodham Clinton’s presidential campaign waned and one devastating critique made sure that the scalding documentary would never become a blockbuster hit.

    It came from a panel of judges in Washington that said “H:TM” was not really a movie at all.

    The court sided with the Federal Election Commission and said the film was a 90-minute campaign ad “susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.”…

    Because the movie is partially financed with corporate funds, it fell under restrictions in the Bipartisan Campaign Reform Act of 2002 — as the McCain-Feingold law is formally known — on “any broadcast, cable or satellite communications” that refers to a candidate for federal office within a certain time frame before an election. The law’s requirement that ads clearly state the name of the group paying for them made Citizens United’s planned 10-second media ads unworkable, the group said.

    As a practical matter, that meant Citizens United could show “H:TM” in theaters and sell it on DVDs, but promoting it through its planned advertising campaign was restricted. And the prohibitions on broadcast just before an election doomed the group’s hope of paying $1.2 million to have the movie available on cable systems around the country via video-on-demand services. [Source]

    Like or Dislike: Thumb up 2 Thumb down 1

  35. michael reynolds says:

    @PD Shaw:

    It is true that a corporation cannot be put in jail, but monetary penalties and property seizures are available.

    Ooooh, I want that deal. I want to be able to commit murder and only pay a fine.

    Like or Dislike: Thumb up 9 Thumb down 3

  36. PD Shaw says:

    @michael reynolds: See Blacksone’s Commentaries on the Common Law. It defines persons as being either natural or artificial. Since the Commentaries were widely read by the framers of the Constitution, they are used to define the contemporary meaning of words. I think the notion of corporate personhood is not controversial. For example:

    First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), was a case in which the United States Supreme Court ruled 5-4 that corporations had a First Amendment right to make contributions in order to attempt to influence political processes

    Like or Dislike: Thumb up 4 Thumb down 3

  37. Ryon Lancaster says:

    @PD Shaw:

    Uggh, no. Corporations didn’t really exist until the late 19th century. There were some earlier, but they had to be enacted by special acts of the legislature, whether State or Federal (such as the Bank of the US). Corporations were rare precisely because they were so powerful: a lot of upside, very little downside, and no individual responsibility. Incorporation became easy with the railroads, and became something that people could just file for, rather than get a special act.

    Corporations as people was because of a peculiar interpretation of the 14th amendment. You are right that it was before CU, but it isn’t in the original constitution, and requires a pretty sketchy interpretation of the 14th amendment (which was there to give former slaves citizenship).

    Like or Dislike: Thumb up 3 Thumb down 1

  38. michael reynolds says:

    @PD Shaw:
    I don’t think we can move from ‘the framers read’ to ‘the framers meant to include.’ They probably read the Bible and yet Jesus never made it into the constitution. In fact, assuming they’d all read the commentary you cite their failure to include specific references in the actual constitution would argue that they intentionally left it out. Right?

    Like or Dislike: Thumb up 7 Thumb down 1

  39. John D'Geek says:

    I am amused.

    The self-same people trying to convince me in another thread that “Liberals are Rational” are here being irrational and … well, pig-headed.

    Try running a business and then you’ll quickly understand the very real differences between a corporate person and a real person; between Corporate Property and Personal Property. If you don’t, the IRS will have a few words with you …

    Right now, all you’re doing is proving your ignorance.

    @PD Shaw: You should know better than to bring facts to a thread like this. LOL

    @Doug Mataconis: Does proof of “compelling interest” apply to cases like these? (Sorry, I’m not a lawyer … nor do I play one on the internet).

    Like or Dislike: Thumb up 4 Thumb down 7

  40. sam says:

    @PD Shaw:

    True, all that, but that was not really my point, PD. I was responding the confused ontology that Doug announced in this:

    When you do something to a corporation, you are, in the end, doing something to the individuals who own that corporation.

    If I (or you or the government) does something to a corporation, then, according to Doug, I (or you or the government) am (are/is) actually doing something to the individuals who own the corporation. But the cash value of that (to use William James’s expression) is that the corporation, or rather, the term ‘the corporation’, is just shorthand for ‘the individuals who own the corporation’. But if that is true, then the proposition “Corporation X has committed a crime” is replaceable by the proposition, “The individuals who own X have committed a crime.”

    I mean, how else to understand ‘in the end’ in Doug’s assertion if nothing else but the ontological identification of the corporation with the individuals who own it?

    Like or Dislike: Thumb up 3 Thumb down 0

  41. anjin-san says:

    It is true that a corporation cannot be put in jail, but monetary penalties and property seizures are available

    I live not to far from several oil refineries on the SF Bay. Pretty much every day of the year, they break the rules about how much crap they can release in the air. Naturally, they face a monetary penalty.

    So they reach into petty cash and pay the fine. This goes on year after year. The people who live here get to enjoy the fumes. Thank goodness for those monetary penalties.

    Like or Dislike: Thumb up 9 Thumb down 1

  42. Liberty60 says:

    I don’t usuallylike to jump to first principle stuff, but here I think its appropriate.

    Government exists for and by the People; Whenever it stops working for the People it should be changed until it does;

    Corporations exist only as a constructed device, and were created by the People for our use in conducting affairs, for the benefit of the People.

    The legal rights and protections we give to corporations are subservient to the rights of the People themselves; if the form or construction of corporations is interfering with the natural rights of the People then we have the right and duty to change the forms and construction until they do.

    So in my mind the only debate we should be having is whether or not the contemporary form of corporation is serving the needs of the People adequately, or should be alter them to suit our purpose?

    Like or Dislike: Thumb up 8 Thumb down 0

  43. PD Shaw says:

    @Ryon Lancaster:

    “Persons also are divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us; artificial are such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies politic.”

    Blackstone Book 1, Chapter 1.
    You find the 19th century case peculiar because you are unfamiliar with the long-accepted meaning of the term, which did not require explanation.

    Like or Dislike: Thumb up 2 Thumb down 1

  44. michael reynolds says:

    @John D’Geek:

    Of course you fail to say anything specific.

    As for running a corporation, I always forget this, but I’m the president of a corporation. Not much of a corporation, although I believe it paid more in taxes last year than General Electric.

    That whole “I’m a bidness man so I know stuff” trope died with the political fortunes of Donald Trump and Herman Cain.

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  45. PD Shaw says:

    @sam: I’m not quite sure what you’re getting at with the “property” classification. I understand Doug as writing that we don’t want corporatinos to become Constitutional-free-zones, where individuals can unexpectadly lose rights that we’ve all assumed. I’m writing on my work computer about non-work-related matters. Would these communications be protected? Is my hard-drive seizable. I mean the argument that many have made with respect to CU is that businesses engaging in political speech are not engaged in the central activity for which they were created and thus their non-business activities are entitled to less protection.

    The second concern with corporate rights as shareholder rights is that my personal activities at work are unlikely to be adquately protected by owners, unless I’m an owner. (Underlying the tension is that the owner would have a right to access its computer because its the owner’s computer, but should the owner be able to waive my privacy rights to the government as well?)

    The third concern would be that many of the rights protected in the Constitution are not property rights. I don’t believe my expressions, whether made at home or at the office, are property. Privacy is not property.

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  46. sam says:

    @PD Shaw:

    Where did I mention property? Or are you confusing my posts with someone else’s?

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  47. john personna says:

    @John D’Geek:

    No. The rational view is absolutely that the NY Times had free speech before CU, and would have free speech without CU.

    Jebus. You think the rational path is an imaginary history where the Times did not have protections until CU?

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  48. john personna says:

    BTW, the thing that really kills me about the Sauders Amendment is that if corporations represent their shareholders, then their contributions are moot. Their shareholders may simply contribute themselves, for an equivalent outcome.

    The only way that allowing corporate contributions changes the outcome is if the corporations do not, in fact, contribute as their shareholders would.

    This is a problem for those who defend corporate contributions as necessary for the rights of shareholders.

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  49. PD Shaw says:

    @sam:” Where did I mention property? Or are you confusing my posts with someone else’s?”

    Could be. I thought you were also making the argument that Doug’s parade of horribles is non-existant because shareholders would have the right to enforce rights against their property. I see your not making that point.

    My point would be broader than Doug’s. I think for many of us our daily lives are ongoing interaction with corporations, particularly through work and communications media. For some like Michael Reynolds its far more intimate; he probably doesn’t know where he ends and the corporation begins.

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  50. john personna says:

    @PD Shaw:

    For some like Michael Reynolds its far more intimate; he probably doesn’t know where he ends and the corporation begins.

    I would guess that he has at least two checkbooks.

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  51. John D'Geek says:

    @john personna: Partly correct. Obviously the NYT has free speech at the moment. The relevant question is “would the NYT have free speech without the guarantees of CU?”

    If we can regulate the speech of corporations, then we can regulate the speech of the NYT. If its speech is regulated, then it is not “free speech”. Without CU, we could regulate the speech of corporations; ergo without CU we could regulate the speech of NYT.

    Thus, without CU the NYT would not have Free Speech.

    It’s a fairly straightforward “A => B, A . Then B” argument.

    @michael reynolds: Of course not. That’s because you’re not making any rational arguments.

    To break off of responses for a moment, remember that “We the People” does not equal “We the Workers”. Laws must serve all groups equally, or as equally as realistically possible. If Labor Unions have freedom of speech, then Corporations must as well. (And so forth). So, as someone else asked earlier:

    Do you really want to give Republican’s the power to tell the Labor Unions what they can say and when they can say it?

    John’s first law of politics: Anything that can be abused, will.

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  52. John D'Geek says:

    @anjin-san: At the risk of revealing my cynical side:

    Fine = “We’re pretending to care about this, but we really don’t.”
    Jail time &/or rights/privileges being taken way = “we actually care about this.”

    BTW, would that be 安心 (“obtaining peace of mind through faith or ascetic practice (practise) “) or 按針 (“1: (Archaism) navigation by magnetic compass; 2: pilot”) in your name? (Thanks to Denshi Jisho, ‘cuz I don’t know squat about Japanese).

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  53. john personna says:

    @John D’Geek:

    That is not reason, John. That is sophistry.

    Vegas odds on the NY Times losing “free speech” would be a million to one. Regardless of changes to law on political donations.

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  54. john personna says:

    BTW, you should really compare wikipedia histories on “freedom of the press” to histories of “corporate personhood.”

    Yeez.

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  55. anjin-san says:

    Jail time &/or rights/privileges being taken way = “we actually care about this.”

    Can you name any Fortune 1000 CEOs doing time for trashing the environment? Or perhaps the recent crashing of the economy…

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  56. Liberty60 says:

    @John D’Geek:

    Laws must serve all groups equally

    Really? IANAL, but I think the Constitution was intended to protect rights of individuals, not groups.

    As I mentioned in my other post, groups and organizations are only entities we construct to exercize our rights; the groups don’t accrue rights to themselves.

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  57. I’m going to try something unheard of: I’m going to respectfully disagree.

    The problem with the Citizens United ruling is that it potentially violates one of our core principles: that American citizens effect American elections. All that decision really did was give corporations – with foreign ownership, in some cases (I.E.: Pepsi’s CEO is Indian) – open season to pour as much money into our election process as they deem necessary.

    I agree with Michael Reynolds. Doug, you talk about the conceivability of attacks on corporate personhood. I find it inconceivable that so much money can be bandied about, so openly, and that it can be used so nakedly to influence so many elections and so much policy. That’s the door that CU opened up, and that scares me much more than an assault on the press that has been complicit for over a decade now, if not longer.

    Simply put, the intent of the laws have been bastardized in this case with the minutia of people who don’t have the restraint and control of past ancestors.

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  58. Xenos says:

    When we speak of a corporation having rights, those rights exist because corporations are made up of individuals who have Constitutional, and natural, rights. Rejecting corporate personhood and accepting the argument that corporations have no rights means you are also accepting that individuals lose their rights any time they act as a group toward a common purpose.

    This really does not follow. As is typical, you are conflating and confounding discrete and distinct rights. Corporations, as long as they have existed, have had personhood, but that personhood is restricted in the interests of society as a whole. And corporations do not derive their existence from the natural, inherent rights of their shareholders, they derive them from statutes, statutes that compel corporations to operate lawfully and in the public interest.

    So there is no debate as to whether corporate personhood should exist. It should. The debate is whether corporations should count as natural persons for the purposes of evading otherwise constitutional campaign finance laws. Obviously they should not, as doing so dilutes the political power of the vast majority of citizens.

    (As to the discussion of unions, even though I may be a lefty I don’t see how enabling the politicization of unions is really helpful for the workers or the union movement as a whole. I am happy to accept some limits on the AFL-CIO in return for limits on the Walton family and the Koch brothers.)

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  59. Rob in CT says:

    Seriously, I’m fine with a deal that results in the restriction of both corporate and union influence-buying.

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  60. Ben Price says:

    The giant blind-spot in the argument couched in this essay is the idea that if a gathering of people engaged in collective action for the benefit of members of the group creates the justification for personifying the group itself, and recognizing its as a “person” with rights separate from the individual members, then labor unions, residents of a municipality, co-ops and other un-incorporated groups have the same legal claim, on this logic. But it is the exclusionary nature of property, and the privileges that such legal enclosure (chartering / titling) bestow, by attaching legal rights to property itself that differentiates the exclusive, monopolistic advantages of the “business” corporation over other human collectives. It is legal privilege-in-property that elevates wealth over the general population, and this arrangement, wherein the rights OF property convey privileges above and beyond the rights of the general population…has been institutionalized in the legal form of the chartered corporation. Property itself becomes a legal talisman, the holder of which gains power over others in the community. Titles of property have thus been substituted for titles of nobility as the inter-generational method for passing down social privileges and maintaining those privileges within elite circles and families. The counter-revolution of 1787 (11 years after “we hold these truths to be self-evident”) accepted the end of blood-line titles to privilege and attached those privileges to titles to property. The monarchical power in the U.S. (“supreme” court) and the federalist political power of property brought us to where we are today.

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  61. tyndon clusters says:

    Interestingly enough, I was just having a conversation with a corporation and boy was he pissed that he wasn’t being taken seriously as a person. He was rather eloquent about it (as I will paraphrase to the best of my ability) as he argued:

    “I am a corporate personhood. Hath not a corporation eyes? Hath not a corporation hands, organs, dimensions, senses, affections, passions; fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer as a real person is? If you prick us do we not bleed? If you tickle us do we not laugh? If you poison us do we not die? And if you wrong us shall we not revenge? If we are like you in the rest, we will resemble you in that. If a corporation wrongs a citizen, what is his humility? Revenge.

    At this point I told my corporate personhood friend that he should be committed to a state insane asylum for making such illogical statements that a corporation is a person.

    I think we should just classify campaign contributions as “bribery” and be done with it.

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  62. john personna says:

    Felix Salmon asks an interesting, related, question:

    Do any real people support SOPA?

    His observation is that a law may pass, based SOLELY on corporate support.

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  63. peakview84 says:

    @Vast Variety: It still amazes me that intelligent people can’t differentiate between legal person and actual human being. Let’s call a corporation “a legal entity with the same rights as an individual under specific and prescribed circumstances”. Do we need to be that cumbersome? No. Legal person is fine.

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