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.


Legal Abuse?

The U.S. Supreme Court is in the news again with the decision in the latest case expected to be ideologically based, as usual. In this case. the Court is listening to arguments regarding Arizona’s immigration law that the U.S. Government insists violates federal immigration laws. It would appear the main issue is over states’ rights. Does Arizona have a right to deal with immigrants or is that the purview of the U.S. government?  There are other issues with the law as well, however: its implications are most interesting. On the face of it, the law seems fairly straight-forward.

The law makes it a state crime for illegal immigrants to seek work or fail to carry proper immigration papers, and also requires police officers to check immigration status and make warrantless arrests for immigration crimes in some cases.

The government’s argument insists that a state (any state) dealing with immigration can interfere with international discussions and possible dealings between this country and its neighbors. What this means, I take it, is that Arizona could foul up relations with Mexico (in this case) and create tensions between the countries. In fact, it could create an international incident. This would appear to be a legitimate concern, but, from what I have read, the U.S. government isn’t making a very strong case — even with the justices who would tend to agree with the government’s position. Perhaps it is time for the federal government to hire some competent attorneys. In any event, the issue of racial profiling and the possible abuses that might arise from it are equally compelling.

On the face of it, the procedure of stopping “suspicious” looking people and asking them for their papers would seem to be fairly straight-forward and makes the rest of us feel safe and cozy in our split-level house in the suburbs.  But it most assuredly is not. Not only does it involve racial profiling, as mentioned. It also raises the specter of a police state with power given to local authorities to stop anyone who seems “suspicious” and detain them for as long as they deem it necessary, even incarcerate them should they “seek work.” Needless to say, there were a number of protesters outside the courthouse worried about the implications of this decision as it bears on all immigrants. What is it again that is inscribed on the Statue of Liberty?

At the risk of committing the “slippery slope fallacy,” I do worry that excessive power granted to any police force is a dangerous thing. I would prefer to err on the side of the rights of individuals not to be stopped because they are regarded as “suspicious” by a group of high school graduates wearing police uniforms and carrying guns. The attorneys for Arizona insist that this would not happen, but the law allows it and we know from history that what is possible often becomes the case. This law leaves the door wide open for abuse, a failing humans seem to have in abundance.

 The article alludes to this concern: Justice Anthony Kennedy, generally the court’s swing vote, asked repeatedly about how long someone would be detained while a police officer checked his or her status. “What if it takes two weeks,” to determine someone’s status, he asked. Paul Clement, representing Arizona, said it would take an average of only 11 minutes. Verrilli [for the U.S. government] countered that it takes 70 minutes, when you take into account the hour wait to get through to the federal government’s databases. Surely, Verrilli could have done better than this!  Was he going for laughs? Indeed, the question of how long officials in Arizona could detain “suspicious” people is the key here. And Verrilli could have made a stronger case though, given its recent history, the Court is inclined to rule in favor of Arizona no matter how strong a case the government makes. And it is a good bet that’s what the Court will do.