One of the rhetorical centerpieces behind Occupy Wall Street is the notion that big corporations should not be considered people. Of course the recent uproar over whether corporations are people comes from the Citizens United decision. Although we often hear about how this case opens the floodgates to corporate funds, it is safe to assume that very few people have actually read the opinion.
In this landmark 5-4 Supreme Court decision, the Court held that the First Amendment protects corporate and union funding of independent political broadcasts in elections. In doing so, the Supreme Court struck down portions of the McCain-Feingold Act that prohibited corporations and unions from broadcasting “electioneering communications” — any broadcast, cable, or satellite communication that mentions a candidate within 60 days of a general election or 30 days of a primary.
The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” Now, without getting too much into the legal nitty-gritty, the basic premise of the majority opinion is that a restriction of the speech of corporations unconstitutionally favors one speaker over another. The majority opinion found that the “purpose and effect [of the law at issue] are to silence entities whose voices the government deems to be suspect.” They found that this is particularly troubling in the context of political speech because “[s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” In sum, “By taking the right to speak from some and giving it to others, the government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.”
In stark contrast to the majority opinion, Justice John Paul Stevens wrote a 90 page dissenting opinion, arguing that “[t]he 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.” Stevens observed that, “[a]lthough they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office.” Moreover, Stevens 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.”
So the conflict is simple: Whereas the majority tried to craft a legal argument that corporate speech is still speech that may not be abridged under the First Amendment, the dissent relied on common sense and ordinary meaning (as well as legal argument) that corporate speech is less than speech by individuals.
Nowhere in the majority opinion, however, does the Supreme Court explicitly say that corporations are people. That’s what politicians are for. At the Iowa State Fair, Romney famously said, “Corporations are people, my friend.” Obviously this is a poor choice of words. He clarified, “Of course they are… Everything corporations earn ultimately goes to people. Where do you think it goes?”
But even if the benefits of corporations goes to people, as opponents of taxes on dividends frequently point out, common sense argues against a finding that corporations are anything but entities or tools for people. In law we often create legal fictions — this being one of them. Such breaks from reality are not prima facie incorrect, but they do leave people, especially non-lawyers, scratching their heads. And now, for good reason, those head-scratchers are out in the streets and protesting outside my office building.
Photo Credit: Ken_Mayer
The Discussion
The Supreme Court ruling has allowed for the unlimited use of private and corporate donations in Super-PACS, as seen with Mitt Romney's campaign and others. There is no accountability for how these Super-PACS corrupt the facts for voters, buy out the media, and drown the validity of the U.S. vote
I understand (basically) the rationale behind the court's support of the view that corporations are people.
Given that reality, then they should also be regarded as "people" within the communities and regions and societies within which they function and operate. In other words, their responsibility and liability does not end with accountants and shareholders. Rather, they are to be responsible to the community as well (and vice versa); every obligation implies a relationship in which both parties have duties.
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Consider reading this article from the New York Times on a meeting between Wall Street and Main Street before the decision not to clean up Zuccotti Park:
http://nyti.ms/qOb3M5
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Supreme Court has stated that the First Amendment protects 1) assembling peaceably; and 2) spending money as "free speech." Corporations can spend money on Wall Street for basically anything as "free speech."
Occupy Wall Street cannot assemble peaceably on Wall Street.
::Scratches head::
Corporations aren't just people. They're super people and often possess rights and attributes which are superior to natural people.
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Corporations can and should be deprived of most civil rights, not just the right to influence elections. They are legal fictions, creatures of the state created to serve public interests. The electoral process should not ever be one of those interests.
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1 - Corporations are not people.
2 - Money is not speech.
Thank you, Supreme Court, for handing down two decisions that have done nothing but increase corruption in government...
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Of course a corporation isn't a person. It is a group of people. And just because you join a group of people doesn't mean that you lose any of your rights.
All the actions of a corporation are controlled by people, and just because those people choose to pool their money, and split the cost for doing something, doesn't mean they don't have the right to do it.
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Phil your question might best be answered by the wisdom of great Biblical Leaders or Greek Scholars. In an era when the ability to control the "noise" bombarding society with partisan spin is at time deafening, limiting free speech presents its own potential hazards. Conversely pure luck in timing can net Voice reaching an audience of untold millions such as we are seeing with the OWS protest. Unfortunately, money still talks.
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Chris, an exceptionally well presented article. The quotes from the decision and the dissent are very appropriate.
I would ask a question of you, or whoever might be interested in responding. Suppose three people get together in order to comment on an issue. They pool their money and promote a book, buy time on TV, etc.
Should they be disallowed from mentioning a candidate (or whatever else was prohibited) in an ad that they buy on TV, or a book that they promote, simply because there are three of them instead of one?
Suppose their sum total of assets is overwhelmed by a single individual. What then?
My point is that disallowing speech is a very tricky business and should be done with extreme care. Or not done at all.
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It doesn't matter, as long as the government can be used for rent seeking and granting special privileges, it will continue to be used as a mechanism to squash competition and acquire subsidies by those with money. Simple as that.
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Thanks Chris, excellent article - mic 'em up!
I have a question: Since corporate personhood was first put forth by a court clerk writing a preamble to a supreme court decision, doesn't it behoove the court to correct its own faux pas? How would you or I bring a case that would force this decision?
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The majority opinion instrumentally left out calling a corporation a "person" -- which then, interestingly enough, expands the ascription necessary to be included within the First Amendment. We already see bankruptcy law providing remedies for insolvent persons and corporations. The questions is, to what extent will Citizens United and precedents alike, hold accountable a fiscally irresponsible major corporation? Can you say, bail out?
I think this also very much a philosophical question as much as it is a legal one. Some people say that corporations should be considered as people because they are made up of people. They are nothing in themselves. A corporation is the product of a collection of people who invest time and effort for a higher thing, in this case the company.
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"In this landmark 5-4 Supreme Court decision, the Court held that the First Amendment protects corporate AND UNION funding of independent political broadcasts in elections."
Why isn't anyone out there asking whether unions are people? The hypocrisy is stunning.
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Oh, I'm gonna get clobbered for this: I have heard it said - and there's probably a sign out there in Liberty Park saying it, too - "I'll accept that corporations are people when Texas executes one."
Thank you, Counselor Kendall, for as succinct an explanation of Citizens United as I've seen.