Corporations as People

Adam L. Silverman, PhD*

Frabjous, in comments to the Palin at Gettysburg thread, mentioned how corporations came to be considered as people for legal purposes.  This was a major change in not only American jurisprudence, but also American political philosophy as Madison definitely did not consider corporations, nor did he want them considered, as if they were people for legal or political purposes. Back in 2002 Thom Hartmann wrote an interesting essay explaining how corporate personhood came to be.  I highly recommend his piece to the SST community.

* Adam L. Silverman is the Culture and Foreign Language Advisor at the US Army War College.  The views expressed here are his own and do not necessarily reflect those of the US Army War College or the US Army.

Comments

[Michael Brenner]

I do not believe it is a matter of legal philosophy. It's part of Operation Grand Theft and the accompanying class war from the top down. As was said in the FCO cable in July 2002 re Iraq 'intelligebce', the 'facts' and interpretations are being bent to support a predetermined conclusion and objective.

[Will Reks]

I swore an oath to defend the constitution of the United States. I abide by that oath.

But, I do see this country sliding towards outright fascism. The dominant elite believe that the state should exist primarily to serve corporate interests.

[Andy]

The statement that corporations are considered people for legal purposes is not really accurate. In the first place, there are still a lot of differences between individual and "corporate" rights, freedoms and obligations. Secondly, it's not just corporations, but other organizations like unions and non-profit organizations.

[confusedponderer]

The point I tried to make in my tongue-in-cheek post was this:

Corporations and organisations are functional and legal constructs. A corporation or organisation is just a vessel for the pursuit of personal interests. They require people to be able to act. Without people they are just an organigram.

The owners and individuals who act for a corporation or organisation are personally all able to make campaign contributions, but that is not enough?

The obvious consequence of Citizens United is that the ruling has already allowed for the influx of massive wealth into campaigns. Corporations as for profit entities must inevitably be able to outspend unions and everybody else. This naturally corrupts the political process in favour of the most potent donors, i.e. corporations. Forget about effective oversight of industries in such a setting. Wall Street reform, or effective oversight of mines, like Massey's Upper Big Branch, or of oil rigs will not come to fruition. Pity the bystanders.

On the foreign policy front, the substantial influence of AIPAC is another case in point.

In these dispiriting circumstances, Census Suffrage is just a logical conclusion: The US already allow for all practical purposes financial influence to effectively determine (even more so in a two party system) which candidates people can choose between.

Why not allow them proportional voting power in accordance to their wealth ('contribution to society') right away and eliminate the need to rig the process? Why not give corporations and organisations voting power, too, and let the board decide which party they vote for? CEO's would get to vote twice, but who cares about trifles like that? It would be probably more transparent and honest.

That's tongue-in-cheek again btw.

[jonst]

If, and when, DC EVER gets around to even discussing this issue, you will know great change, one way or another, is at hand. The same is true for anti trust law. Just discuss it...never mind do something about it. That is another thing entirely. But if we, as a society, are discussing these things...judgment day for the Republic, one way or another, will be on the table.

I would not stand on one leg waiting for this to happen. Serious conversation, about these topics, at the moment, is verboten. The same is true with serious conversation about the ME. We got another lesson recently why this can't be allowed, by the powers that, for the time being, be.

[Bill H.]

"Corporations as for profit entities must inevitably be able to outspend unions and everybody else. This naturally corrupts the political process in favour of the most potent donors, i.e. corporations."

Unquestionably true, and equally unfortunate. However, I see countless people railing against the darkness, and almost no one lighting a lantern. Where is the outcry to awaken the voters in this nation and render the 60-second paid commercial campaign ad powerless by teaching voters to ignore it? Where is the patriot urging that voters "look here" pointing to voting records and published cv's, "and not here," pointing to the paid-for ad?

This country has survived the "Red Menace," fire and floods, the Great Depression, World Wars... We are not a nation of candyasses. Can we be beaten by corporate advertising? Really?

[New Orleans]

How can I justify full First Amendment rights for the New York Times, but not Exxon, given that both are corporations?

That's a serious question, not snark. I consider Citizens United a tragic decision.

[Fred]

Bill H.

As PT Barnurm said, and all the 'made in China' products in WalMart prove, 'yes we can'.

[William R. Cumming]

Strangely for this SCOTUS they failed to follow early SCOTUS rulings when deciding the recent corporation campaign contribution case. With 5 followers of the Catholic faith on board interesting that "situation ethics" is the rule of the day for SCOTUS!

Some big decisions will be released in next 3 weeks before summer recess!

[Walrus]

The issue is not that corporations are "persons". The issue is that corporations are persons who are not constrained by the same laws that constrain individual behaviour.

The most obvious example is that a corporation swears no oath of allegiance and cannot be drafted to fight and perhaps die for the country. It is also perfectly legal for a corporation to slaughter another corporation by fair means of foul provided it does not transgress existing law.

There is no such thing as corporate morality, in fact there is a whole advertising industry that exists to tell you otherwise - witness all those nice Chevron, BP and Exxon feel good ads about how the are working on clean green energy sources.

Furthermore, corporations now understand what modern American competition is about - lobbying Government on their behalf to create barriers to entry and further their rent seeking activities.

[William R. Cumming]

New Orleans! The Press is mentioned in the Constitution in the 1st Amendment! Corporations are not generally
or specifically referenced.

[scott s.]

It seems as though we are drawing a distinction between associations formed as corporations and labor unions, and other associations for example common law partnerships? I'm not sure I see a compelling case for treating corporations differently WRT speech rights. Also, Citizens United is organized as a not-for-profit corporation, so the argument about "wealth" and "business" would seem to apply to only a sub-class of private corporations and again I don't see a compelling case for how you determine corporations which are entitled to speech rights and the other "bad" corporations.

[New Orleans]

William: Nice try, but too narrow an interpretation. The right to free speech does not require ownership of a printing press, so there must be another reason.

[confusedponderer]

scott s.
the salient point would probably is that free speech and donating (unlimited amounts of) money are not really the same thing, and that corporations as legal entities and real persons ought to be treated differently.

That reading also defies the explicit will of the legislature, as expressed when campaign finance laws were enacted.

Interesting in this context:

#1: "The judge [apparently now considering to change his ruling] based his 52-page ruling last week on the Supreme Court's more recent decision in the Citizens United case.

"For better or worse, Citizens United held that there is no distinction between an individual and a corporation with respect to political speech," Cacheris had written. "Thus, if an individual can make direct contributions within [campaign finance] limits, a corporation cannot be banned from doing the same thing."

But his decision appears to have ignored a 2003 Supreme Court opinion, written by Justice David Souter, which held that "applying the prohibition to nonprofit advocacy corporations is consistent with the First Amendment."

Wrote Souter: "not only has the original ban on direct corporate contributions endured, but so have the original rationales for the law. In barring corporate earnings from conversion into political "war chests," the ban was and is intended to "preven[t] corruption or the appearance of corruption.""

http://tpmmuckraker.talkingpointsmemo.com/2011/05/judicial_takebacks_reagan_nominee_overlooked_supreme_court_ruling_on_corporate_donations.php?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+TPMmuckraker+%28TPMmuckraker%29

#2: "Former Supreme Court Justice Sandra Day O'Connor has taken up the cause of reforming state judicial campaign and election systems, writing that the "crisis of confidence in the impartiality of the judiciary is real and growing." If left unaddressed, said O'Connor, "the perception that justice is for sale will undermine the rule of law that courts are supposed to uphold."

O'Connor's comments came in her introduction of a new report which concludes that partisan and special interest groups have grown far more organized in their efforts to use judicial elections to tilt the scales of justice. Campaign fundraising for judicial elections more than doubled from $83.3 million in 1990-1999 to $206.9 million in 2000-2009, according to the report."

http://tpmmuckraker.talkingpointsmemo.com/2010/08/sandra_days_new_quest_state_judicial_reform.php#more

[Adam L Silverman]

Scott S: the supreme court ruling that made it possible for financial donations (dollars) to be covered by the first amendment was Buckley v. Valleo from 1976 if I'm remembering my dates correctly. This case equated money with speech, specifically campaign contributions with political speech, thus bringing campaign financing under the protection of the first amendment.

[Byron Raum]

Arguments have been constantly made about labor unions that argue that these unions should not exist; that their constituents can, if they so choose, easily vote or move in the manner that they choose. Every single argument of this type is as easily applicable to corporations as it is labor unions.

The simple fact is that there's only so much freedom to go around. The usual example being that my freedom to swing my arm ends where your nose begins. This is true in any society with finite resources.

Corporations are used to further restrict freedom of real individuals. That is their political purpose.

[William R. Cumming]

New Orleans again! Freedom of speech and Freedom of Press separately mentioned. Mr. Madison explained why in the Federalist papers!

[Brent Wiggans]

The corporation is a sleek mechanism designed for a single purpose, to maximize shareholder return on investment while limiting individual shareholder liability to the value of their shares; everything else is bells and whistles. It is not a person. It has no moral dimension. It owes no allegiance to anyone other than its shareholders. It is a construct whose behavior in pursuit of its objective is limited only by the rules that human beings explicitly set and enforce. On the corporate side, pitted against those limits is the pooled will and ingenuity of people focused on adapting and operating the mechanism in its particular environment to achieve its objective.

The corporation is an unacknowledged and highly sophisticated form of artificial intelligence.

[William R. Cumming]

The corporate form in the USA largely succeeded because it was the most flexible business organization and least likely to be effectively regulated!
See Professor Laurence Liberman (sic) HISTORY OF AMERICAN LAW first published in 1973 and covering developments until 1900!

[New Orleans]

William: Press versus speech is a distinction without a difference in the modern era. I.e., radio and television are generally protected under freedom of the press.

The answer I seem to be seeking is, as other have noted, the prohibition is on corporations making direct contributions to candidates. But that's a bit of a facade. I'm not aware of anything (other than tax consequences) to keep me from forming a corporation, piling up a bunch of money, then using that cash as indirect contributions via an ad campaign claiming Candidate X is smarter than Candidate Y, who is a bum. That's neither better nor worse than Candidate X running the same ad on his own.

Again, I might be missing something that's terribly obvious; I've don't it many times before.

But for now, I think Scott S has it right when he says there's no compelling case for restricting corporate contributions. I don't like it, and I think the consequences are horrible. But I find it hard to deny his logic, unless you want to say the First Amendment applies only to people, not corporations.

[zot23]

When elections are run for profit, so are the politicians. Not a big mystery, but it's worth contemplating when discussing the 'rules' regarding contributions and electing public servants (that name could be in quotes too.)

Same thing with banks, contractors, and war. As long as there is money to be made in war, they will always find another war to fight. Who is going to defecate where they eat?