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The Supreme Court’s decision to remove all restrictions on corporate political spending has engendered the most cohesive national response seen since the 2008 national election. Yes, there are those that take the bizarre position that they "don’t buy the idea that limiting corruption is a state interest sufficiently compelling to overcome the First Amendment interest in free speech". But most people were stunned, and the reaction from even media that would itself be freed by this decision ranged from Ruth Marcus’ takedown of the hypocrisy of the decision to the Boston Globe’s simple Corporations Are Not People. While a recent Gallup poll found public support for campaign finance law treating corporate donations the same as individuals’ donations, 61% of Americans think the government should be able to limit the amount of money individuals can contribute to candidates and 76% think it should be able to limit the amount corporations or unions can give.
It is remarkable that the Supreme Court decided entities defined by state law have national citizenship rights equal to the people referred to in "We The People." The decision is wrong and unpopular. People are already struggling to come up with ways to reduce the impact of this. And many think the Supreme Court, as arbiter of the Constitution, has left no recourse for those who disagree. Fortunately, because they are making the same epistemological error the Supreme Court’s majority did, those people are wrong.
The error that made this an issue is an uncritical interpretation of the word "person" in the phrase "legal person." By considering corporations to be "persons" independent of the qualifier "legal", not to mention independently of the reality underlying the term, one opens the discussion to irrelevancies such as "A large corporation, just like an individual, has many diverse interests. A corporation may want to support a particular candidate, but they may be concerned just as you say about what their shareholders are going to think about that. They may be concerned that the shareholders would rather they spend their money doing something else. The idea that corporations are different than individuals in that respect, I just don’t think holds up, " advanced by Justice Roberts, and "Most corporations are indistinguishable from the individual who owns them, the local hairdresser, the new auto dealer — dealer who has just lost his dealership and — and who wants to oppose whatever Congressman he thinks was responsible for this happening or whatever Congressman won’t try to patch it up by — by getting the auto company to undo it. There is no distinction between the individual interest and the corporate interest. And that is true for the vast majority of corporations," advanced by Justice Scalia. There are answers to these claims…in the first case, a diversity of interests is not the distinction between a person and a legal person. A person physically exists…a legal person is a useful fiction. In the second case, the idea that a corporation is indistinguishable from the individual that owns it, contradicts the physical fact that the IRS treats them separately all the time, and in any event that individual already has constitutionally protected rights of free speech and to petition the government and so do not need it a second time.
As I say, there are answers but undoing this corporate coup doesn’t require them, or an amendment to the Constitution. It requires clarification of the law. Because what most distinguishes persons from legal persons is that persons are physical, while legal persons were created by humans through legislative and legal action. If you search for a person you can generally find him; search for a legal person and you can only find what it owns.
Since a legal person only exists as defined in law, there is no legal barrier to Congress clarifying that definition. I would suggest something along the lines of:
For purposes of federal law, a legal person is a contract between persons to act as an economic unit. This economic unit has the legal right to enter into contracts as though it were a single human entity. Contracts joined by a legal person shall be enforceable under the law, under the same terms as for any single human entity. Legal persons shall be deemed to possess such other legal rights as may be necessary to insure it may execute those contracts it undertakes.
Other legal rights may be granted to classes of legal persons or legal persons as a class, which rights shall not be interpreted such that they supersede, impede or obstruct the constitutional rights of citizens and legal residents of the United States of America, its territories, and possessions.
This would actually remove the question entirely from the Court’s purview without invalidating a since law or contract, and the only economic impact it would have is on the purchase of politicians…something most of us would agree would be a good thing.
5 Comments
Excellent idea. So excellent, that Roberts would have to come up with another phony case to null it.
The decision had zero to do with speech and everything to do with hard cash. The elites feel they OWN the system, that they ‘ve paid for it and now want to make it clear that they have the right to buy and sell the players ( Reps.) just like the other property they buy and sell. Politics is business this decision says and its just a matter of the price because we already know what the players are ( whores). Corruption simply doesn’t mean anything to the Conservs. its a non-issue. Its refreshing in a way that they’ve removed any pretense of caring if the system is fair or equitable or even sane. Think of DC as just another market and political players and the decisions they can make as commodities and this decision makes eminent sense. Remember , these were the same kinds of people who had no trouble with the buying and selling of human beings 150 yrs ago either. Oh, and thats probably going to be up for review as well. Don’t be surprised if the five think its way past time to compensate the slave holders families for the unjust taking of their property.
I think you’ve surrendered. I think I’m done here.
I think this is a great idea, and if this is typical, Prometheus, I really hope you’ll stick around. Going to seriously ponder how to apply this strategy on the tactical level. Thanks for the guidance.
Yes, it is typical.
Wikipedia:
The laws of the United States hold that a legal entity (like a corporation or non-profit organization) shall be treated under the law as a person except when otherwise noted. This rule of construction is specified in 1 U.S.C. §1, which states:
This federal statute has many consequences. For example, a corporation is allowed to own property and enter contracts. It can also be sued and held liable under both civil and criminal law. Among the most frequently discussed and controversial consequences of corporate personhood in the United States is the extension of a limited subset of the same constitutional rights.
Corporations as legal entities have always been able to perform commercial activities, similar to a person acting as a sole proprietor, such as entering into a contract or owning property. Therefore corporations have always had a ‘legal personality’ for the purposes of conducting business while shielding individual stockholders from personal liability (i.e., protecting personal assets which were not invested in the corporation).
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:
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. Author and radio/TV talk show host Thom Hartmann has argued that in fact, Chief Justice Waite wrote in private correspondence that, “we avoided meeting the [Constitutional] question,” and found – and published in his book “Unequal Protection,” the actual correspondence between Waite and Davis in the Library of Congress which demonstrates that Waite did not intend to create a legal precedent. 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.
As I said, the personhood of corporations is not derived from constitutional law, and so constitutional law is not needed to adjust it.