by Beverly Mann
Thomas Hartmann writes via Truthout:
Most Americans don’t realize that the idea that ‘corporations are people’ and ‘money is speech’ are concepts that were never, ever considered or promoted or even passed by any legislature in the history of America. Neither were they ever promoted or signed into law by any president – if anything, the opposite, with presidents from Grover Cleveland in 1887 to Barack Obama in 2010 condemning them.
And Congress and the executive branch are the two of the three branches of government that are elected by the people, and thus the only two to which the founders of this country and the framers of the Constitution gave the right to create laws.
The Supreme Court is so much not supposed to create law, that Article 3, Section 2 of the Constitution even says that it must operate ‘under such Regulations as the Congress shall make.
There are two problems with what Hartmann writes. First of all, there needs to be an explicit distinction made between the idea of “corporate personhood” in law, generally, and “corporate personhood” in a constitutional-rights sense. Hartmann, like so many others who are appropriately outraged by Citizens United and earlier corporate-free-speech Supreme Court opinions, clearly intends his comments to apply only to the corporate-free-speech Supreme-Court-created laws, just as the drafters of the proposed constitutional amendment regarding corporate personhood do.
But the “corporate personhood” fiction actually was created, I believe, simply as a practical way to allow corporations to own property. Later, that fiction enabled corporations to sue and be sued, to be subject to criminal laws and civil regulatory law and to be charged with violations of those laws and to be fined for violations and required by court order to comply with (say) a particular environmental or securities regulation or whatever. State statutes, which provide for the creation of corporations, and federal statutes do provide for these things, and although they don’t use the term “corporate person,” these laws (e.g., tax laws, environmental laws, lawsuit procedural laws) do include corporations in the statute’s “definitions” section, in defining the term “person”, in order to make clear that the statute or regulation does apply to corporations.
So the problem of corporate personhood is that the Supreme Court has pronounced corporations “persons” for purposes of First Amendment speech rights. Constitutional rights apply only to persons, so this pronouncement of personhood for corporations in a constitutional sense, rather than just a statutory sense (as in, say, corporations can own property), was a prerequisite to the accordance of First Amendment free-speech rights to corporations. This is a really important distinction.
The distinction gets complicated when you consider that there are some constitutional rights that most people would think do and should pertain to corporations: the Fourth Amendment’s guarantee against warrantless searches and seizures, and the Fifth and Fourteenth Amendments’ due and property “takings” provisions, for example. But that’s because actual people do own direct monetary shares of corporations, and so corporate property does belong to real people, and because the constitutional protections at issue there—against warrantless searches and seizures of documents, for example—would compromise those rights of real persons (the corporation’s employees or customers, for example).
The First Amendment right to advocate for a particular political candidate or party or political position, using shareholders’ money, though, is hardly a right that logically can be said to derive from those shareholders’ First Amendment speech rights, the exercise of which is cannot reasonably be said to be intentionally collective; the specific expenditure is not foreseeable to shareholders, many of whom would be horrified by it. Of course, the Fab Five majority in Citizens United did pretend otherwise. But then, declaring clearly false facts in order to arrive at their result in that case is the very hallmark of that opinion.
But here’s another problem with what Hartmann and others are arguing: This claim of theirs that the courts have no authority to declare render decisions—rules of law—concerning issues of constitutional law is profoundly dangerous. It mirrors what Clarence Thomas and Antonin Scalia regularly claim, except of course when they themselves are simply fabricating some new rule of constitutional law.
I love Thom Hartmann. But I think his position here needs some refinement.