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Have you ever wondered why corporations like Exxon Mobil have free speech “rights” under the Constitution when corporations can’t “speak,” and when the Constitution was written to protect “We the People” and never mentions “corporations”? Do you worry that maybe, just maybe, the Supreme Court is putting the interests of corporate America over the rights of hard-working Americans?
If so, then you probably want to learn more about a piece of legal fiction called “corporate personhood.” And you should probably start with this terrific lecture from that preeminent legal scholar, Stephen Colbert.
If, after watching Colbert, your interest is piqued – as it really should be — then I urge you to take a look at this discussion draft of a report on corporate personhood, recently released by the Constitutional Accountability Center (CAC, where I work), which tells you more than you probably ever wanted to know about the topic. (CAC is planning to release a final version of this report in January 2010). While we’ve already distributed this to a number of legal blogs in an effort to get feedback, we also wanted to publish it here, to reach a broader audience.
CAC prepared this report in an effort to better inform the legal and public debate surrounding the Supreme Court’s looming decision in a case called Citizens United v. Federal Election Commission (better known as the “Hillary: The Movie” case). After hearing argument in the case in March 2009, the Court in June ordered an expansion of the issues it would decide, heard re-argument in September, and now could be poised to do away with a principle that has not only been the underpinnings of campaign finance law since the Tillman Act of 1907, but is also a bedrock principle of our Constitution: corporations and individuals are different, and because of the special privileges corporations receive to succeed in business, corporation do not receive identical rights under our Constitution. For the first time in nearly a century, the Court may change the state of the law to say that unlimited amounts of money from corporations’ general treasuries (i.e., the funds where corporate profits sit, not the isolated and highly-restricted “PAC” funds through which corporations currently influence elections) may flow freely into federal and state elections.
So if it troubles you to think that a corporation like Exxon, which raked in $45 billion in profits in 2008, could, with a diversion of a small fraction of those profits, overwhelm the spending of both major parties in the 2010 election, you should be following the outcome of Citizens United. And if you want to know why the Court should uphold the longstanding restrictions on corporate efforts to influence elections, please read CAC’s report.
Hannah McCrea is proud to work at the Constitutional Accountability Center (CAC), a think tank and public interest law firm dedicated to showing how the text and history of our Constitution uphold progressive outcomes.
63 Comments
Colbert and team . So insightful so amazing
Good for you, Hannah and CAC. The coathanger court has been scary in its disregard for the individual, and Ledbetter was a prime example of this. It’s very disturbing to see a court that’s dominated by supporters of corporate welfare, and your work is appreciated.
“Corporations are persons” and “Money is speech!”
Two fantasies brought to you by the Supreme Court. Money, by definition, is fungible. It has no content. How can it be speech?
Can a candidate hand out $20 bills instead of making a speech? Can a lawyer offer financial incentives to a jury, instead of a closing argument?
It boggles the mind!
That was one of my fave Colbert segments.
Corporate personhood has been a myth from the beginning. Did you know that the original Supreme Court case that “established” corporate personhood was never mentioned in the opinion. Instead, the court reporter summarized it that way, and apparently in the 19th century that was just as important as the actual words of the Justices, so it snuck its way into our legal system. And now the Supreme Court is poised to expand on the concept with logic they pulled out of their asses…this is one of the most serious problems we face today, because allowing unlimited corporate election spending, as appeared to be likely when they broadcasted the oral arguments, is the only thing that can save the Republicans from decades of irrelevance.
what case is that? this is weird. we were just taking at work about when corporate personhood first came about.
a brief wiki summary:
Corporations were recognized as persons for purposes of the 14th Amendment in an 1886 Supreme Court Case, Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394. Some critics of corporate personhood, such as radio personality Thom Hartmann, claim that this was an intentional misinterpretation of the case inserted into the Court record by reporter J.C. Bancroft Davis. [1] Bancroft Davis had previously served as president of Newburgh and New York Railway Co.
…
The stronger concept of corporate personhood, in which (for example) First, Fifth, and Fourteenth Amendment rights have been asserted by corporations, is often traced to the 1886 U.S. Supreme Court case Santa Clara County v. Southern Pacific Railroad Company (118 U.S. 394). In that case, before oral argument took place, Chief Justice Morrison R. Waite announced:
“The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”[8]
This quotation was printed by the court reporter in the syllabus and case history above the opinion. As a result, the Court decision did not address the matter of whether corporations were ‘persons’ with respect to the Fourteenth Amendment. Talk host Thom Hartmann has argued that in fact, Chief Justice Waite wrote in private correspondence that, “we avoided meeting the [Constitutional] question”. The question of whether corporations were persons within the meaning of the Fourteenth Amendment had been argued in the lower courts and briefed for the Supreme Court, but the Court did not base its decision on this issue.
“this is one of the most serious problems we face today, because allowing unlimited corporate election spending, as appeared to be likely when they broadcasted the oral arguments, is the only thing that can save the Republicans from decades of irrelevance.”
seems to apply equally, if not more so, to current Democrats and Obama’s administration.
Thank you Hannah.
The Roberts Court – Because Justifying having Samuel Alito on board is hard work…
Just wait til Sotomayor votes in favor of corp personhood under the guise of free speech in the challenge to campaign finance law. Then we can all kowtow to O, because he’s not W.
from what I’ve seen she has sided with corporations in her decisions, claiming “she just judges transgressions against law, she doesn’t judge law” (my words not hers)
let’s see if she sheds her cacoon and blossoms into a real supreme justice for our law
btw ecahn
I was following book salon on my phone so couldn’t participate but I did notice you talking about your right wing son
me thinks, if he is like most childs who opose their parents point of view, that if you claim you’ve seen the light and want palin for president he will disuade you your new found conversion [/s]
My explanation for my son is either (1) bad parenting or (2) powerful parent syndrome. But WTF do I know.
tell him with real, not feined sincerity that you think palin is an incredible politician and will make a terrific candidate and you might even vote for her
I am laying odds he begins to argue the other side of the coin, beginning with “there are others more qualified”
to which you will argue, bush was less qualified then palin and not nearly as smart.
Sorry, but couldn’t do that without puking.
Why aren’t you taking the advice from the all knowing sperm? /s
Difference between intellect and gut.
You know which I prefer.
Practicing music here. Figuring out what we want for) the intro to Gesu Bambino.
Deck the Halls
I still have this old, faded VHS tape of a Pavarotti xmas special where he does Gesu Bambino. good stuff.
We’re having some fun here with that.
No Deck the Halls. Too easy. It’s more fun to have the classical challenge. You know. Real music. :)
After Thanksgiving dinner with my in-laws, I suggested the musical part of the family do piano variations on “they gather together …” It was a stitch and a half. The Russian version. The French version. Mozart’s. Beethoven’s. Jazz. Blues. Elvis. Beetles. And I was in the first flower of my cold, could barely bark, but was the only person who actually knew the words. Quite a scene.
ex-cuuuuuuuuuuuse me. i’ll try to think of something snobby.
As being intellectually threadbare becomes a plus in American politics.
Screw our parents, who told us when we were kids that you could grow up to be President if you worked hard enough. Worked hard enough at what?
Coke fiends, and sportscasters and fancy pageant walkers have become the leaders of movements… world well off of it’s axis.
Yeah, I hear that. And, all too well, I’m afraid.
LOL “intellectually threadbare.” new one on me. like it. and true.
speaking of the pageant walkers. anything come of that lying homophobe, phony fuck Prejean running for Congress?
Awaiting the solo-act tapes to see if she makes the grade.
And how friggin funny is it that no one wanted to pony up for them!
Maybe it has something to do with his dad.
His father committed suicide when he was 5-1/2. Great tragedy. Will contest followed. Did all the therapy stuff that conventional wisdom called for. My son & I were great friends until some year during his college ed. No easy answers, only sarcastic ones.
jeez. sorry.
We communicate irregularly. He lives in Austin, and came to NYC during Oct, when we had dinner with another relative for my bday. As long as we don’t talk politics, and walk on egg shells, its ok.
beats fighting i guess. i grew up in a family – the youngest – that always was talking politics. i thought that’s what everybody did. after i got married, one of the first Xmases i was at one of the in-laws and my father-in-law started holding forth in his best Limbaugh-esque manner. I listened until he was done. and said “That’s bullshit!” The guy freaked. Wigged out. There was no discussion in that family. he would just repeat what he heard on Rush and everybody would nod -whether they agreed or not. weird for me.
Think O & Sotomayor are cast from the same clay. I knew the type well on Wall St. People, unlike me, who knew what side their bread was buttered on and knew exactly how to layer upon layer of butter.
GREAT drawing attention to one of the biggest problems facing our democracy, “corporate personhood”
the constitution was deliberately drafted to carve rights for people above and beyond those rights given corporations
the fact that corpoations can claim “the right to petition the government for redress” gives them the right to lobby, and along with their “right to lobby” they have been given legal ability to buy our law
I believe corporations should NOT have the right to “petition the government for redress” and if a company wants that right then they are welcome to decertify their corporation, shed their corporate ubrella of personal protection against liability and be personally responsible for what the company does wrong and illegal
I sure hope there is a way to rescind this “personhood” but I fear with a corporatist like obama at the helm we are not going to get what we are looking for
what I wanna know is:
since big business corporations are now part of the gubmint (Goldman Sachs, Citibank, telecoms, blackwater, etc.)
why can’t we FOIA their business records? Now THAT would be interesting, yes?
Gee I feel protection of privacy coming on.
If a corporation is a “person” why isn’t it limited to the amount one person can contribute to a candidate?
Money, by definition, is fungible. It has no content. How can it be speech?
‘Yes we can bring about change’, seems (to me) chock full of fungible utterances devoid of content upon which we could all reliably hang our hats on.
Money is concentrated at the top. Making money=speech is just another way of allowing the rich to control the political levers.
I always fume over the aspect of traffic tickets where a hefty fee is used to mete out punishment as deterrent. How does a $100 ticket have the same deterrent value for a millionaire vs a peasant? And if it doesn’t, than it is both a failure as an evenhanded deterrent and unjust!
$ 100 penalty for a average working stiff, and $ 1 million for Lloyd Fuck. Blankenfein, would at least make some sense, no?
You are pissing in the wind. Perhaps you should just get with the program. /s
A corporation is not a person and money cannot speak for itself. However according to a previous corrupt Supreme Court, a corporation is somehow an individual and money speaks louder than that. Money, while it itself cannot speak, speaks very loudly when bribing our elected “representatives”. Bribery while techinally illegal has been made legal since corporations and the rich and connected can “legally” buy “representation”. Of course it’s not technically bribery since……it’s now legal……Just typing WTF in CAPS seems somehow inappropriate but there it is. One citizen, not consumer, one vote seems logical and in line with our Constitution but what the hell do I know.
Peace
I’m a citizen not a consumer, beinf labeled a consumer denigrates all of us.
Peace again!
eCAHN, help me out here. You’d know this. A corporation can’t be a person, right? Then it would have to have a soul. Right?
Ah yes, the soul theory. However you have now hoist me on my own petard. Having mocked the “soul” on the prior thread, you now use it to pin me. I should have known better.
i had forgotten about your son. do you avoid him for the holidays?
The soul is held as collateral by GS.
who GS ? (I should know this)
Thanks for highlighting this topic.
‘Corporate personhood’ lies at the root of many, many problems – including pollutants.
emptywheel is upstairs!
Baucus’ Girlfriend Helped Arrange His Separation
they award the heisman yet?
Mark Ingram
On the one hand: AMEN!
On the other hand: Think tank FDL ‘bloggers? Hmm.
and why aren’t progressives working overtime for change to this and other electoral reforms instead of debating triggers?
until we have a democratic system we’ll never have a democratic distribution of wealth.
Rayne is upstairs!
FDL Cutting Room Roundup: Second-Chance Video
So did Sotomayer throw out the “corporate personhood as a mistake” bon mot to keep progs quiet and hopeful until she and the rest of the court can put the knife in?
Can we call it Obama-style?
Legally, a corporation is a fictitious or artificial person; mainly, the business corporation is a device to limit the liability of investors. If the Roberts Court decides Citzens United in favor of corporate free speech, I think it will be as destructive as the Taney Court’s Dred Scott decision.
Who speaks for the corporation? Who is its individual voice? The workers that make the corporation possible in the first place? Or the lazy managers that enjoy hookers, golf junkets, and bonuses for raping and pillaging? The workers outnumber the management by a large amount. If corporations are to be “people” than the corporate voice must be required to be based on a VOTE by ALL actual members of the corporation proper.
No CEO can speak for the workers, temps, etc. They can only speak for themselves.
If the Supremes rule a corporation has the same right as a natural person, can a corporation then be elected to congress? Or as president?
I am hopeful that if corporations are ruled persons, that we can draft them and send them to war on GS-2 paygrade. Much cheaper IMO. I think the issue of having a soul is also relevant to the argument. How better to f-up a RWNJ than to assert that a business entity has the same rights and privileges as natural persons that presumably have a divine spark in them.
Will corporations be compelled to prove their humanity or is it just to be assumed? Will we see protests outside of morally corrupt corporate citizens offices and will Congress then attempt to legislate their morality as well? Will we come to see the Virgin Mobile Southern Baptist Convention and The Exxon Church of the Blessed Sacrament? Will corporations be allowed to marry and adopt? (but not if they are in the same industry of course, that would destroy traditional marriage). For all the people who want their country back this is the last, thin thread
that if broken, will see Democracy finally subsumed by the merger of business and the state. I don’t believe that at any time in history have corporations been given the same rights as natural humans. It should not be done so now.
Corporations have the same rights as people. The 14th Amendment bestowed upon state corporations the same constitutional rights as those which Justice Taney in Scott vs Sanford was denied. It was a preemptive strike by the seeds of today’s corporations……Slave owners, aka Corporate Sodomy?
America should abolish health insurers as America abolished the institution of slavery, but not the owners……………
AKIN to the The King of England and his corporate cohorts in colonial crime?
Corporations vs Life………… AMERICA’S NEST CIVIL WAR?
Rape the American People and protect corporations as Justice Taney denied Scott dignity and protection of law for the protection of a white Aristocratic society whose livelihood was predicated on the exploitation and usurpation of constitutional; protections, envisioned for all men, not just elitist scum!!!!!!!!!
To defeat the enemy become one with them. Guess what you can do with Corporate Personhood.
You can vote. One person one vote
Therefore incorporate yourself. You are now Mr. X and Mr. X Inc. Oh yes you could also be Mr. Xa Inc, Mr. Xb Inc., etc. etc.
Now the twenty seven of you all go apply for voter registration cards. And when you vote you can walk in and out of the booth twenty eight times. Like they say in Texas “Vote Soon and Vote Often.
We need Grayson and other human-minded reps to begin thinking about a bill to be brought forth should the SCROTUS rule incorrectly that corporations are, in fact, “people” with full 1st Amendment rights. They should have the bill actually declare them to be persons for political purposes and thus limited to the contributions that only an actual human person can provide. It then needs to place individual limits on political donations to parties and candidates and ads, thus imposing a tight limit on what ANY “person” can spend.
Better yet, bring on Arizona-style public political financing and eliminate private donations entirely.
The CEO, who is elected by the shareholders, speaks for the corporation.
If a corporation is an individual under the law, and I marry the corporation in a community property state, if we divorce, do I get one-half the assets? Will the shareholders object?
If I buy 10% of the stock in a corporation, does that make me One + one/tenth of a person?
Mayfly, a corporation, being a legal fiction rather than an actual person, can only act through its officers, whose positions are listed in its charter. The traditional list of officers is president, vice-president, secretary, and chairman, but I’m not sure how often those specific titles and positions are used nowadays. Praedor, personally, I wish the Court would dump the whole interpretation of the 14th amendment which grants fictitious persons the rights of real persons.