Corporate Persons

In 1905 in his annual message to Congress, President Theodore Roosevelt declared:

“All contributions by corporations to any political committee for any political purpose should be forbidden by law; directors should not be permitted to use stockholders’ money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts.”

As retired Supreme Court Judge John Paul Stevens points out in his discussion of an amendment he has proposed to the U.S. Constitution that would curb excessive spending on political campaigns, the courts consistently maintained for years that corporations are not persons and therefore not entitled to the same rights as citizens of this nation. For one thing, corporations cannot vote, whereas citizens can. Conservative Justice William Rehnquist in 1982 wrote for the unanimous court in Federal Election Commission v. National Right to Work Committee, “there is no reason why Congress’ interest in preventing both actual corruption and the appearance of corruption of elected representatives may not be accomplished by treating. . . corporations differently from individuals.”

The change in the Court’s position came about indirectly, beginning in 1990 in a dissenting opinion written by Justices Antonin Scalia and Anthony Kennedy to Austin v. Michigan Chamber of Commerce in which they contended that corporate speech, like other expressive activities by groups of persons, was entitled to the same First Amendment protection as speech by an individual. This opened the can of worms that has become the ugly Citizens United Supreme Court case that recently maintained, drawing on Scalia and Kennedy’s opinion above, that since corporations have the same free speech rights as individuals, they have the right to support political candidates without restrictions. As Stevens notes in this regard, “[Scalia’s arguments in 1990] provided the basis for the court’s five to four decision in Citizens United overruling  the Michigan case and apparently affording the same constitutional protection to election-related expenditures by corporations as to speech by individuals.” Sheer magic: political donations are a form of free speech and corporations are people even though they cannot vote and (so far as we know) they cannot copulate.

Needless to say, the Citizens United case stands in glaring opposition to the concerns raised in 1905 by President Roosevelt and upheld by the courts for 105 years thereafter. Roosevelt was expressing the obvious concern about the undue influence of wealth on elections that would tilt the playing field and render ineffective the attempts by the less wealthy to have any voice in politics whatever. As Stevens says, one of the many consequences of this imbalance is the “public’s perception of the role of money in influencing the outcome of elections. Voters who would believe that the power of the purse will determine the outcome of elections are more likely to become bystanders rather than participants in the political process.” Indeed. One need look no further for an explanation as to why citizens have become increasingly disenchanted with the political process and why several analysts have determined that America has become a de facto oligarchy and can be regarded as a democracy in name only.

Stevens does not suggest an amendment to deal directly with the issue of whether corporations are or are not persons — as is currently under discussion nation-wide — but rather an amendment that simply allows states and the Congress to set “reasonable limits” to campaign contributions without insisting that these limitations are in any way in conflict with the First Amendment: limits on campaign spending should not be considered limits on free speech. But whether this Court or this Congress could manage to work with a nebulous concept such as “reasonable limits” is questionable, so the issue remains how to put restraints on those with great wealth who would make the government dance to the tunes they play on their diamond-studded harmonicas. — especially since those who might place those restraints on the wealthy are busy dancing to their tunes.  As things now stand, the recent Supreme Court decisions have given the corporations and the 1% of this country who control the vast majority of the wealth virtual control of the political process. Corporations and the very wealthy can determine who runs and who gets elected — and what those people will do once elected.

In a masterpiece of understatement, Stevens concludes that “The decision in Citizens United took a giant step in the wrong direction.” Teddy Roosevelt would agree.



10 thoughts on “Corporate Persons

  1. Hugjh, I wonder how often a court opinion, such as in Citizens United, cites a previous dissenting opinion as precedent. Isn’t precedent usually an existing ruling, not opinion? Kennedy and Scalia wrote in 1990 for the minority, so their opinion didn’t reflect what had reflect the ruling that had been imposed. It seems odd then that it would later be used to bolster the Citizens United ruling. Odd and sad Stevens’ comments about the escalating influence of money being reflected by lower voter turnout and higher overall citizen apathy toward government is reflected, as well, in Putin’s oligarchal Russia. There, Stevens’ theory has played out at an extremely accelerated pace — a sort of hopeless apathy taking root. It is not impossible to see that happen here too.

    I surely wish Stevens’ amendment at least gets formal discussion in Congress. But that is a long shot.

    And: I know plenty of corporate employees, current and former, who will tell you they have been “copulated” by their companies!

    • I don’t think the Citizens United decision drew on the dissenting opinions of Scalia and Kennedy as precedent. They simply followed that line of reasoning. And, yes, corporations can screw their employees. They do it on a regular basis!

  2. Teddy was a wise man in many ways. I am kicking around a post which shows how an industry plays both ends against the middle to win the game that no one realizes is being played. The fossil fuel industry pretty much owns the GOP. Yet, they also contribute heavily to Dems as it costs so much money to get elected. So, when a donor calls. The industry realizes they would prefer to puppeteer GOPers, yet if the Dems win, they still have a significant input with them. Our president has moved the ball forward on climate change, but has not done near enough or set in motion a long term plan. While we have more solar, wind energy and higher mpg requirements on cars, we are fracking away like there is no tomorrow (pun intended, sadly).

    So, Citizens United and other rulings allow companies and industries rule our American Oligarchy with many of us not knowing they do. And, that is sad. Great post. BTG

  3. Pingback: Playing both ends against the middle | musingsofanoldfart

  4. Thanks, Hugh, for the additional information and thoughts. I apologize for the typos in my first post — I was typing on a tablet, which has a touchscreen, not an actual keyboard. I type quickly, but not nimbly! Even if only as a guideline for their reasoning, the dissent by Scalia and Kennedy is so flawed and contrary to almost two centuries of American court opinion … ach. The reasoning itself is just awful! I am glad you keep hitting them on it.

  5. “All contributions by corporations to any political committee for any political purpose should be forbidden by law” – President Theodore Roosevelt

    wouldn’t it be great if some great person paid to have that quote spread across the entire USA?!

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