Next, Corporate Marriage

by A. Jay Adler on January 23, 2010
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My post about the just rendered Supreme Court decision on campaign spending limitations, Corporations Are People Too, has received some comments that require response enough to deserve a post. Basically, the argument is that, no, really, corporations are people too, and liberals are frauds for arguing otherwise.

I have already acknowledged that the law has, in some respects, for legal purposes, attributed personhood to corporations. I cited the 1886 Supreme Court decision not to call that attribution recent, but instead one of some long standing. The question is in what particular respects corporations have been legally considered as persons, and in which respects that attribution is useful and beneficial.

Because it is useful and beneficial to treat corporations as persons in some instances, mutatis mutandis conservatives want to mingle concepts and imagine that corporations actually are persons. They are “born” and they “die.” Do they feel too? Fall in love and procreate? Maybe they think transcendentally and contemplate the nature of a supreme being. Can’t wait until one wants to be artificially inseminated. Why not let them run for office and serve as judges? The PR flacks who serves as the Wizard of Oz “voice” of the corporate “mind” whose “speech” is being “censored” could hold the positions.

This argument is an absurdity. As Justice Stevens said in his dissent

The fact that corporations are different from human beings might seem to need no elaboration….

Unlike our colleagues, [the Framers] had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.

But why concern ourselves with “original intent.” Or common sense.

It is only when corporations are treated as actual people that this matter can be argued as a “speech” issue. It is, in fact, a categorical confusion, and liberals have come down on both sides. The ACLU supported the corporations’ position. Some conservatives will have a difficult time processing that into the stereotypical meat grinder through which they feed liberal thought. (Whereas conservatives are, of course, completely disinterested in this matter.)

Most liberals can hold the common sense position they do on the issue because liberalism is a humanist philosophy, not corporatist. That so many conservatives are comfortable arguing for the fundamental political powers of corporations suggests that their criticisms of “big government” are not really an aversion to large, abstract organizations overwhelming individual human liberty, but just a preference for a different kind of organization to do it. The campaign spending limitations overturned by the Court’s decision properly applies to labor unions too, though this is of little solace to the advocates of corporate power, since labor wealth is a David without a slingshot compared to corporate wealth. And that, too, extreme positions have been taken at times provides the convenient straw man against which to argue rather the flock of actual crows in the actual field.

This decision left to stand unmodified by future legislation will hasten the evolution of the U.S. into, effectively, an oligarchy, its political and policy decisions determined by corporate and individual wealth, with only the window dressing of a representative democracy of the people.

AJA


7 comments

{ 7 comments… read them below or add one }

copithorne January 26, 2010 at 11:58 pm

John Curran repeats the presumption that a corporation is a “category of people [person].”

No. Corporations are not categories of people. Corporations only exist after the existence of the state. People exist before the existence of the state. There are no corportions without state power. That’s why the state has the authority to regulate corporations.

How does this conversation go if we say that the state will no longer uphold limited liability for corporations?

It is hard for me too to discern why this would break down along a right/left axis.

But it reminds me that one of the deficits of our culture is that we are overidentified with the thinking mind. Human beings are an integration of thoughts and feelings and bodies. But for most people in our culture the self is the thinking mind and the heart and body are ignored. Even in mature people the heart and body are experienced as property of the mind and not as components of the self.

I see Tom Goshen pointing to that complexity. Corporations can approximate a mind. But they are purposely excluded from having feelings and bodies.

Corporations cannot speak with integrity because there is no self at their center that can be integrated. And the health of our democracy and society depends on the slender support of people being able to speak with integrity.

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John Curran January 24, 2010 at 6:13 pm

In some sense, we are speaking at cross purposes. You seem primarily concerned with the issue of the corporation and I am concerned with the first amendment with respect to our liberties.

In Justice Kennedy’s ruling, he says this: ” McConnell permitted federal felony punishment for speech by all corporations, including nonprofit ones, that speak on prohibited subjects shortly before federal elections.”

When I see that statement I see dubious government restrictions on identified parties being subject to felony convictions. Mr. Degan, above, asks a lot of rhetorical questions about corporations, but he did not ask what happens when when corporate employees are convicted of crimes. [See Enron] Do we want the federal government to send people to prison for expressing political thoughts? If you do, then there is no point to having this exchange.

Neither did Mr. Degan ask who gets to decide what is a “prohibited subject.” He did not ask how a decision on subject prohibition gets made. Rules, regulations, policies, procedures build and build over time until there is maze of arbitrary and punitive lists of things identified parties cannot say.

If you read Kennedy’s opinion, he lists a long history of discomfort on the court with the prohibitions on political speech by corporations & unions. Until this case, there was not a majority to pull the reins back on these restrictive laws. Harry Truman, a highly regarded President (now) vetoed the Labor Management Relations Act of 1947 because of its “dangerous intrusion on free speech.” Congress overrode the veto.

The odd thing to me is that politically the ruling is a wash. Corporations are free to say what they wish, but so are unions and non-profit companies that generally support Democrat positions. Both the ACLU and the AFL-CIO have spoken in favor of this decision. The ACLU said “…the prohibition on corporate speech is facially unconstitutional under the First Amendment because it permits the suppression of core political speech.”

I remember when President Clinton tried to allow homosexuals in the military without fear of rejection of that career. There was a huge argument on both sides and the silly compromise we still have in place is no substitute for justice. I don’t remember who made the remark at the time, but someone said that he did not believe our government should discriminate against any person or group. I agreed with that sentiment then and I agree with it now.

When the government singles out categories of people or groups to limit their actions, we do not have a republic.

From the decision: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. If the antidistortion rationale were to be accepted, however, it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form.”

Your assertion that “…the logically prior issue is the claim that corporations are persons…” is not central to the argument the majority makes. The framers did not anticipate modern business models, but that does not mean they should be entitled to fewer First Amendment protections.

Kennedy does not rely on the status of corporations as “legal persons” for his opinion, but on the rationale for prohibiting speech, which was based on the idea “…“that the governmental interest in preventing corruption and the appearance of corruption [was] inadequate to justify [the ban] on independent expenditures.” The justice cannot find adequate reason to uphold this argument because their is no reason to assume that a political statement by a corporation will lead to corruption.

As for the “self-evident” issue, I am always skeptical of assertions that depend on this concept for support. A few people, Thomas Jefferson being one, can use the assertion and make it viable in the context of the Declaration. But a lot of public discourse moves on the currents of assumptions held by speakers to be axiomatic when they are not.

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A. Jay Adler January 25, 2010 at 7:41 pm

Well, some of us are speaking at cross purposes, John. I think I’ve acknowledged your arguments directly and said why I think they are mistaken by offering direct countering arguments. With the exception of the issue of self-evidency – which you’re willing to credit only if it comes from Jefferson, an appeal to authority more than to the evidence of what the mind’s eye should clearly see – I’m not so sure you’re doing the same, while proceeding instead to reiterate your argument in a different manner. To adopt your own formulation, if it isn’t clear to you that a corporation is not a person, was and is not a constituent citizen of the republic, and should not be granted rights as if it were, then there is no point in continuing the exchange on this issue.

Two closing points for me.

On its own terms, your speech argument is ill-founded. Scalia writes of the right of individuals to speak in association. However, it is utter disingenuousness to argue that the “members” of a corporation are an association of like-minded individuals, the way outright advocacy organization are, for instance. The executive staff, in principle, are employees of the corporation, not its membership. Yet, of course, it is the executives who will determine the views that will be advanced by the corporation, not the shareholding members. Even if the executives are shareholders, a corporation is an investment vehicle for its shareholders, not an associated expression of jointly held beliefs. Unions are required to permit “fee payer” reductions in union dues for that percentage of dues calculated to fund political advocacy. There is no such opportunity for shareholders to dissent from political expression that they play no role in forming and do not wish to make. Some association! It’s more like compulsory political donation. Very democratic.

Again, argued on the speech issue alone, you have not addressed my point on the complex of conditions and processes that create and secure democracies, beyond insisting on the absoluteness of a single disputed right. We well know that the freedom of speech is not absolute, and is sometimes limited on the basis of potential harm or conflict with other rights, and the power of corporate wealth to overwhelm the voices of actual citizens is a direct threat to democracy.

All that said, you’re my guest on the blog, so feel free to have the last word. I have no wish for the blog to be an echo chamber of the likeminded. Come back again, and bring your best arguments with you.

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Tom Degan January 24, 2010 at 3:54 am

Are corporations really persons?

Do corporations think?

Do corporations grieve when a loved one dies as a result of a lack of adequate health care?

If a corporation ever committed an unspeakable crime against the American people, could IT be sent to federal prison? (Note the operative word here: “It”)

Has a corporation ever given its life for its country?

Has a corporation ever been killed in an accident as the result of a design flaw in the automobile it was driving?

Has a corporation ever written a novel that inspired millions?

Has a corporation ever risked its life by climbing a ladder to save a child from a burning house?

Has a corporation ever won an Oscar? Or an Emmy? Or the Nobel Peace Prize? Or the Pulitzer Prize in Biography?

Has a corporation ever been shot and killed by someone who was using an illegal and unregistered gun?

Has a corporation ever paused to reflect upon the simple beauty of an autumn sunset or a brilliant winter moon rising on the horizon?

If a tree falls in the forest, does it make a noise if there are no corporations there to hear it?

Should corporations kiss on the first date?

Our lives – yours and mine – have more worth than any corporation. To say that the Supreme Court made a awful decision on Thursday is an understatement. Not only is it an obscene ruling – it’s an insult to our humanity.

http://www.tomdegan.blogspot.com

Tom Degan
Goshen, NY

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Nathan Loflin January 23, 2010 at 4:49 pm

It seems that one element of this argument is whether or not corporations inherit the rights of their component individuals. It seems to me that they should not. Each individual that owns stock in or works for a corporation has rights. But granting these same rights to something that they are a part of gives them an extra vote, as it were, in the political process.

The chief problem here, I think, is that it sets a legal precident for the granting of corporations the constitutional rights that should be reserved for individuals. While corporations have practical value in a capitalist econemy, their wealth, potential immortality, and moral separation from their constituents make them the most powerful and heartless things on Earth, not something you want to give more rights to.

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John Curran January 23, 2010 at 12:27 pm

I thought the decision was about the freedom to speak, not about the legal meaning of a corporation. The dissent does not really address the speech matter but attacks the corporation as deserving censorship.

Justice Scalia responded to Stevens commentary about original intent in his concurrence.

“The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment . It never shows why “the freedom of speech” that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form. To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters; but the dissent provides no evidence that their speech in the pursuit of those objectives could be censored.”

Scalia then makes this point. “The Framers didn’t like corporations, the dissent concludes, and therefore it follows (as night the day) that corporations had no rights of free speech.”

Reading Stevens dissent brings to mind the Ambrose Bierce definition, from The Devil’s Dictionary, of ‘self-evident’ – evident only to one’s self. Stevens writes as if it is logical to restrict what corporations can say simply because restriction of their political expression is a good idea.

And this is the money quote from Scalia:

“The Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals—and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is “speech” covered by the First Amendment . No one says otherwise. A documentary film critical of a potential Presidential candidate is core political speech, and its nature as such does not change simply because it was funded by a corporation.”

Speech cannot be prohibited simply because a corporation issues it. Otherwise, would you restrict the ability of corporate newspapers to endorse candidates for office or write editorials supporting bond issues or proposed legislation? Even small newspapers are owned by corporations and all of the major media in this country are owned by huge companies. No one questions their right to publish opinions since we have “freedom of the press”. We do not let the government choose which press outlet can publish freely.

This case has always been about censorship and the limits of government power, Stevens other claims notwithstanding.

All of the opinions are here: http://www.law.cornell.edu/supct/html/08-205.ZS.html

I encourage everyone to read them.

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A. Jay Adler January 23, 2010 at 2:52 pm

John, I know you think the issue is freedom of speech – or you and those who agree with you want it to be – but the logically prior issue is the claim that corporations are persons. You may deny that if you wish, but it is clear that all of the argumentation is really about that, and even your citations from Scalia have individual speech in contrast to some notion of associated or aggregated, e.g. corporate, speech as their subtext. Argued Stevens,

The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation….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.

That is the argument. And it is curious that conservatives on this issue, in contradiction to their general philosophy, wish to extract from the constitution rights not expressly stated for entities nowhere mentioned. How purportedly liberal! Scalia founds an argument on the failure of the dissent to prove a negative: ” [The dissent] never shows why “the freedom of speech” that was the right of Englishmen did not include the freedom to speak in association with other individuals.” Well, I guess the long argument over a right to privacy is settled.

How is it that you miss the point that “freedom of the press” is expressly guaranteed (owing to the specific function of the press, in contrast to that of other kinds of businesses – distinctions being the basis for reasoning) and the right to speech of corporations, even simply corporations, is nowhere mentioned in the Constitution? In contrast, “self-evident” appears in our first founding document: “We hold these truths to be self-evident that all men [not men and corporations] are created equal.” Are you similarly dismissive of that a priori insight? On what basis?

You wish to pretend that only opponents of the decision have a political agenda. You fool no one. And the fundamental political issue is whether one conceives of democracy as the product of a set of conditions and processes balanced against each other, or one chooses to isolate one particular condition absolutely – as in, for instance, one person, one vote, one time, or “speech” for corporations – and claim that therein democracy lies. In an age when the wealth of corporations reaches magnitudes of which the Founders could not have conceived – and still they affirmatively granted corporations no rights – and dwarfs the influence of individuals, that wealth used to fund corporate advocacy is a threat to democracy. If one’s interests are aligned with corporate interests, one is not concerned.

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