Wednesday, September 04, 2013

Corporate Personhood: Why It's Awesome


In my past life as an attorney, I worked at a firm specializing in election law. When I would tell people this, their typical reaction would be to say "ah, that's nice. What is election law?" To which I would respond "You've heard of Citizens United? That was us."

It's true. My old firm represented Citizens United in the early stages of their legal challenge (at the Supreme Court they were represented by Ted Olson). I did zero work on the case personally, but perhaps because of my proximity to the center of the action I do have a perspective on the issues involved (or supposedly involved) in Citizens United that is a little atypical.

The Citizens United case has been, to put it mildly, controversial, with much of the controversy focusing on the notion that the Supreme Court have decreed that corporations were people. Polls show large majorities oppose legal personhood for corporations, and attempts to amend the constitution to deny corporations constitutional rights have sprung up across the nation. 

That’s unfortunate. Because behind an admittedly implausible-sounding slogan is a quite sensible idea. 

 Soylent Green is people, and so is Soylent Green, Inc.

Contrary to popular impression, corporate personhood did not start with Citizens United. In fact, corporate personhood dates back to the old English common law, where it was originally conceived as a consumer protection measure.

Suppose I buy meat from a butcher and it makes me sick. I might wish to sue the butcher for damages. But suppose that I bought the meat not from an individual butcher but from Acme Meat, Inc. It was a central doctrine of the common law that only persons could sue or be sued, own property, or make legally binding contracts. So if a corporation is not a person, I am out of luck. The response to this was to treat corporations as legal persons, who could sue or be sued, make and enforce contracts, buy, sell, and hold property, and so on.

Of course, courts could have granted corporations all the same rights, abilities and duties without calling them persons. But this would have been merely a semantic difference. Once a society decides to have corporations, it has to grant them something along the lines of legal personhood if for no other reason than to protect those who deal with it. 

Likewise, once a society decides to grant corporations the right to own property, it is absurd to deny them constitutional protections. The New York Times, the AFL-CIO, and the Sierra Club are all corporations. But it would be ridiculous if the government tried to use those organizations’ corporate status as a justification for regulating the editorial position of the New York Times, or controlling the advocacy position of the Sierra Club or the AFL-CIO. 



Consider the facts of Citizens United. The plaintiff in Citizens United was not Exxon, or GE or some other giant multinational business corporation. It was a small, nonprofit, political corporation that wanted to run a documentary critical of Hilary Clinton, during her presidential run. It was the equivalent of Michael Moore’s Fahrenheit 9/11 or Dinesh D’Souza’s Obama 2016. Yet according to the Federal Election Commission, Citizens United’s movie was not protected by the First Amendment because Citizens United had made its movie for political reasons, whereas the main purpose of Michael Moore’s movie was to make money. Needless to say, this is ironic on a number of levels.

During oral argument, the government claimed that if it wanted it could ban books that advocated the election or defeat of a candidate so long as the book was paid for partly using corporate money. Yet according to many, it was Citizens United who was advancing an extreme and dangerous position in the case. 

More than 150 years ago Alexis de Tocqueville noted in his Democracy in America that the genius of the American political tradition lay in what he called associations but what in today's terminology we would call corporations. In Europe, to advance some political, social, or economic cause required some wealthy patron. In America, by contrary, groups of people who individually might not have had deep pockets could come together and pool their resources by founding an organization to advance the cause.


Far from being a tool of repression, corporations advanced the interests of democracy and equality by allowing the little guy to organize to accomplish what otherwise could only be achieved by the very rich. Ending corporate personhood would not stop billionaire individuals like the Koch brothers or George Soros from using their wealth to affect the political process, but it would hamper small grass roots organizations which choose to use the corporate form. Ultimately, the long tradition of corporate personhood represents not a threat to democracy, but a support of it.


UPDATE: Our beloved blog owner, Noah Smith, says that Corporate speech is bad because violates the rights of individual shareholders who disagree with it. I don’t think that works as an objection. After all, corporations are inevitably going to be engaging in all sorts of non-political speech: advertising, press releases, business publications, etc. The fact that a single Apple shareholder disagrees with a commercial for the new iPad doesn’t mean that his rights have been violated. So why would political speech be different?  
it.

98 comments:

  1. Anonymous8:22 AM

    Of course, corporations also dilute personal responsibility. The Koch brothers oil company is not publicly held, but they are still protected by its legal structure from much personal legal risk in dealing with Iran, in violation of US law. Corporations shield decision-makers from legal responsibility for their decisions. Share holders did not go to jail for Bopal. If a doctor had killed and injured women by implanting his own bad birth control device, knowing the risk, he could have been jailed. The makers of the Dalcon Shield faced a very different set of incentives, knowing that their risk was only monetary.

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  2. Yes, I agree, in some ways people are barking up the wrong tree. There is HEAPS wrong with election law in the US. That corporations have rights is not the main source of the problem. The main source of the problem is that money rules elections. Strict campaign funding limits, and strict rules on transparency, would not treat corporations differently from individuals.

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  3. Anonymous8:36 AM

    Has the Citizens United decision permitting unlimited corporate spending on campaigns led to more or less spending? Has disclosure been adequate? Have these trends increased candidates' and elected officials' responsiveness to a wider swath of the populace? Why or why not? Cite specific examples.

    Those are the practical concerns here, not airy-fairy, irrelevant just so stories about not being able to sue a butcher who commits a tort in the course of his business.

    Needless to say, as a matter of constitutional law, the Citizens United decision was the culmination of years of fierce judicial activism.

    We had had a long tradition of valuing personal political participation more than corporate political speech. The First Amendment's meaning didn't begin to change on this until the past few decades. Justice Rehnquist was bemused in his opinion in 1977's First Bank of Boston v Bellotti:

    the General Court of the Commonwealth of Massachusetts, the Congress of the United States, and the legislatures of 30 other States of this Republic have considered the matter, and have concluded that restrictions upon the political activity of business corporations are both politically desirable and constitutionally permissible. The judgment of such a broad consensus of governmental bodies expressed over a period of many decades is entitled to considerable deference from this Court. ... Until recently, it was not thought that any persons, natural or artificial, had any protected right to engage in commercial speech. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, (1976). Although the Court has never explicitly recognized a corporation’s right of commercial speech, such a right might be considered necessarily incidental to the business of a commercial corporation.
    It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes. 5 A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.
    Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist.

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    1. Anonymous9:04 AM

      I should've mentioned Rehnquist's FN 4, a rebuttal to the straw man you raise in your post: "But it would be ridiculous if the government tried to use those organizations’ corporate status as a justification for regulating the editorial position of the New York Times".

      Rehnquist wrote: "Although a newspaper corporation must necessarily have the liberty to endorse a political candidate in its editorial columns, it need have no greater right than any other corporation to contribute money to that candidate’s campaign."

      The work of Larry Bartels and others indicates that political decisionmakers have roughly zero interest in the opinions of the bottom 50% of American earners. The judicial activism of Citizens United doesn't do much to address that state of affairs.

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  4. The reason for the existence of corporations is to shield corporate managers from personal liability for the actions of the corporation. There's some good economic sense to this approach, since it allows corporations to take risks that sole proprietors or partnerships couldn't afford to take.

    But it means that the decision-making process with corporations, deciding which political positions to support and which to fight against, is controlled by managers that have no accountability to the public, and in practice no accountability to shareholders.

    There are simply not mechanisms in place that ensure that political activities by corporations are relevant to, let alone promote, the interests of the corporation. And what makes us think that the interests of corporations are aligned with the interests of society?

    Political activities by corporations simply reflect the political beliefs of a small group of upper managers. You can mutter about "Board of Directors" or "Stockholder revolts" all you want, it is very clear that these groups have ignored and will continue to ignore these issues unless they become incredibly egregious.

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  5. I don't agree with this post. If a corporation decides to contribute money to a campaign, that may not reflect the desire of all of its shareholders. Therefore, corporate collective "speech" may impinge on the "speech" of the individual.

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    1. Anonymous11:41 AM

      By the same logic would you oppose Trade Unions contributing money to a campaign?

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    2. Therefore you disagree with the government funding art, public broadcasting, education, or so forth, right? All governmental speech certainly does not reflect the desire of "all" of its voters, citizens, or residents.

      It's a lot easier to cease to be a shareholder if you disagree about the balance of a company's speech than to cease being a citizen or resident of a country.

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    3. By the same logic would you oppose Trade Unions contributing money to a campaign?

      Yes, unless they offer members who disagree with the contribution a chance for a refund.

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    4. Therefore you disagree with the government funding art, public broadcasting, education, or so forth, right? All governmental speech certainly does not reflect the desire of "all" of its voters, citizens, or residents.

      No, because I think that people attribute that speech to the artists, not to the government that funded them.

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    5. My teacher's union already solicits funds separately for political purposes.

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    6. Anonymous6:50 PM

      I wouldn't.

      Trade unions — by their very existence — protect the interest(s) of individuals of that trade union in a classic democratic faction.

      Corporations protect the interests of the shareholders proportionally to how many shares each individual owns.

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  6. The confusion here, in my opinion, is conflating the economic realm with the political realm. Of course, allowing corporations to enter into enforceable contracts makes lots of sense, as does holding them liable for their products and services. But I don't believe anybody believes that corporations should be allowed to vote.

    And if they can't vote, why should they be able to participate in the political process in other ways? I see no problem, morally, legally, or ethically, with saying there are certain rights and responsibilities that we reserve for flesh and blood people and others that may include legal persons such as corporations.

    To deny this idea is simply carrying a legal fiction too far. And the only reason to do so, as far as I can see, is to move the balance of political power toward moneyed interests and away from the voting population.

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    1. Bingo!

      I don't share the alarmism of other commenters about the supposed quality of the arguments used but the simple, common sense understanding of things ought to steer us through all this.

      Should Citizens United have been able to run a movie critical of Hillary Clinton? Within reason (i.e. not being factually incorrect and/or outright slandering her), the answer is yes. Assuming these rather low standards were observed, the government was wrong to oppose the viewing of the movie.

      But reacting by allowing limitless corporate political spending?

      That was utterly stupid and, imho, a probably deliberate move by a biased SCOTUS to make sure corporate interests would be best served.

      Two wrongs don't necessarily make a right...

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    2. "And if they can't vote, why should they be able to participate in the political process in other ways?"

      *shrug* I think that non-citizens should be allowed to participate in the political process in others ways, despite not being able to vote.

      "But reacting by allowing limitless corporate political spending?"

      Please remember that the Citizens United decision was not about campaign contributions (still banned for foreigners and for corporations), but about speech. We don't attempt to limit speech in the sense of making a movie or publishing a money by dollar amount for anyone, so that wasn't at stake here. I suppose we could try to do that, say that filmmakers couldn't make a political documentary with a budget that was over a certain amount.

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  7. Anonymous9:34 AM

    It is worrying that, in Mr. Smith's absence, standards of argumentation have been allowed to slip at this establishment.

    The fact that the government made an over-broad argument for limiting corporate speech does not justify the Court's over-broad ruling. That's just a huge leap. The problem here is that a lawyer, with a personal history that creates sympathy for the Citizen's United ruling, has made a lawyerly argument. By lawyerly, I do not mean a necessarily valid argument, but rather an argument created to sneak past objection and win its case. Lawyers may admire that sort of thing, but it has till now not been the standard here. It's a shame things have deteriorated so in Smith's absence.

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  8. This is by a huge margin the worst post I have ever read at this site.

    The common law concept cited is as an entity, not a person. Conflating these two is beyond fatuous.

    The facts are wrong, the logic flawed and convoluted, and the conclusion reprehensible.

    But if your goal is to complete the hand-off of governemnt to large transnational corporations with no loyalty to anybody nor anything, then its a fine self-serving fable.

    Now I must go hug a squid.

    JzB

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    1. Yes.

      Not sure.

      Plausible.

      Yes.

      Uhh...

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    2. Anonymous12:07 AM

      Wow Noah sold out big time letting shills like this abuse his blog. This propaganda double speak tries to make it out that corporate person hood makes them more responsible, and is a good thing. Conceptionally that is tractable, but in reality any responsibility is mitigated by people like the author. I guess I will wait for Noah to come back as this drivel is far below his standards.

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  9. Tocquevillian arguments in favor of associations have little to do with the modern conception of a corporation. Invoking his notion of association out of context ignores the impersonal relation between shareholders and executives, attributing it the sort of social importance he saw in local political and commercial associations. Alignment of personal interests is not an acceptable substitute for creating communal interests.

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  10. Wonks Anonymous10:12 AM

    There is a major difference between corporations today and in the past. Now most requests for incorporation are granted as a routine matter, it used to be a case that they were more restricted and used for quasi-governmental purposes (often with a grant of monopoly powers). The power to form associations was regarded as dangerous by many of the powers that be, as described in "Violence and Social Orders" by North, Wallace & Weingast. So we're closer to the Tocqeuvillian ideal nowadays.

    I think corporate personhood predates English common law, although as an American it wouldn't be surprising to focus on that. Corporations date back to Roman law, and there's really no point in having a corporation if it doesn't have legal personhood. Those corporations were often of the quasi-public purpose sort rather than the profit-centric business we associate with the term, so the rule wasn't necessarily about "consumer protection". After the collapse of Rome the concept faded, but it was rediscovered by the Catholic church and adopted by both municipalities and larger governmental units (which are of course themselves corporations once beyond the Weberian charismatic individual type) throughout Europe, regardless of their connection to English common law.

    Noah, nice to see you show up. My understanding is that it's possible for shareholders to sue corporate management for failing to look after their interests, but it's not necessarily easy. Matthew Yglesias would regard that as a good thing! This wouldn't apply to a non-profit political advocacy group like Citizens United.

    The question of whether a corporation can donate to a candidate seems like it might be more easily dealt with by regulating the actions of candidates. That's a more restricted set of people who are agreeing to compete on the basis of certain rules, and the vast number of non-candidates who want to get involved in politics won't have to deal with much red tape. Many people will complain about "independent expenditures", but trying to restrict that seems to risk throwing the baby out with the bathwater.

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    1. Anonymous3:52 PM

      Wonks Anonymous: "...there's really no point in having a corporation if it doesn't have legal personhood."

      Do your really mean that legal "personhood" is the only status that could serve... what purpose, exactly? Is there no way to craft a more refined concept, and is there no better and less perverse label for that concept?

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  11. Corporate Personhood: Why Libertarians are Full of... It.

    I'm sorry, but this post is full of non sequiturs and half-facts. I understand that you want to defend your position, but some respect for the rest of us is warranted. Here's my problem with what you're saying:

    1. "The response to this was to treat corporations as legal persons, who could sue or be sued, make and enforce contracts, buy, sell, and hold property, and so on" As you say later, these privileges do not require "personhood", but "personhood" bestows rights far beyond these privileges. That's the issue, that's what people have a problem with. You don't even attempt to address this.

    2. "Likewise, once a society decides to grant corporations the right to own property, it is absurd to deny them constitutional protections"--Talk about a non sequitur! It's really quite a leap of logic. There are three constitutional amendments that I can think of that deal directly with the right to vote; how is it that this right doesn't transfer to corporations? And what about criminal penalties? Can a corporation be sent to jail?

    3. From my perch as a decision theorist, an individual makes decisions in a fundamentally different way than an agglomeration of individuals and this posses serious problems for the "corporate personhood" view. Consider: I am an owner of stocks (perhaps through an index fund, perhaps through other means) and in particular I own some of company X. In theory, I have an ownership claim to a share of X's capital stock and (most importantly) it's future profits. So what if X's CEO decides to contribute money to a political campaign that I don't support? In this case, isn't the corporation then speaking for me and using my money to do it? What am I to do if I feel strongly about this? I'm out of luck, my only option is exit. Is it really the purpose of personhood that I should have to choose between owning property or political speech?

    4. "Far from being a tool of repression, corporations advanced the interests of democracy and equality by allowing the little guy to organize to accomplish what otherwise could only be achieved by the very rich"--Ahh, the practical case. This is all fine to the extent that it could be true (to say this argument strains credulity is an understatement). The practical case here is, once again, a non sequitur. It could be true that the specific privileges conferred to corporations by personhood are on net beneficial, but it does not follow that we should grant personhood, since personhood confers far more rights than those which are necessarily practical. To put it another way: why don't we just allow corporate entities certain of those privileges which the political system has identified as beneficial, rather than resorting to (poorly thought out) notions of personhood and constitutional rights?

    The average joe on the street is right about this one--and you are playing word games with the rest of us designed to obfuscate the issues rather than illuminate them. "Corporate rights" serve the same basic purpose as "States' Rights" did back in the day: it is a clever argument that the powerful should have the right to oppress the weak.

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    1. Wonks Anonymous5:56 PM

      The Constitution does not guarantee anywhere the right to vote, it prohibits the denial of such right based on certain criteria but not others (the abolition of property requirements happened as a result of state-level changes rather than an amendment). I wouldn't say that "personhood" necessarily entails rights beyond the economic ones initially mentioned, because I tend to think of corporate personhood in a more abstract context. For most of history most people did not have the right to vote, and corporate personhood dates back that far.

      Re 4, you are more right than you realize. Corporate "personhood" was never even in dispute! A corporation which is not a legal person may as well not be a corporation at all. Citizen's United was about what rights are entailed by virtue of the fact that a corporation is a person, SCOTUS decided those rights included political speech in the run-up to an election. Corporations still cannot serve on juries, vote or run for office and presumably a variety of other things. Although it occurs to me permitting a corporation to hold office might not be a bad idea!

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  12. Noah asked for my thoughts on this post, and this is what I told him (note: this is written in my personal and not my professional capacity!) -

    This post is in many ways very helpful; the historical analysis is certainly enlightening I think. Allowing people to sue corporations instead of individuals is absolutely crucial for employees and consumers, as well as others. But it's this line:


    Likewise, once a society decides to grant corporations the right to own property, it is absurd to deny them constitutional protections. The New York Times, the AFL-CIO, and the Sierra Club are all corporations. But it would be ridiculous if the government tried to use those organizations’ corporate status as a justification for regulating the editorial position of the New York Times, or controlling the advocacy position of the Sierra Club or the AFL-CIO.

    where I start to disagree. Unlike natural persons, corporations' personhood is constructed, so there's no reason they can't treated as persons for some purposes and not others. After all, they already can't be subject to the same types of criminal punishment as natural persons, because you can't put a corporation in jail! The analogy to human beings isn't perfect, and there's no reason to try to make it perfect.

    Also, I'd argue that first amendment protection for corporations isn't necessary to protect speech in the situations described above; individual writers, editors, etc. would be entitled to those protections themselves. True, "commercial speech" is given less protection under the law, but that's about the content of the speech - that it's for profit, and doesn't contain any of the political type of content I assume the author is imagining in the above hypothetical. For-profit speech gets less protection, but that's not because the speech is made by corporations. In other words, first amendment protection for corporations shouldn't give that speech any additional protection, and taking it away shouldn't make the speech any more vulnerable. In this, I agree that the government's position in Citizen's United as described in the post - that if it wanted it could ban books that advocated the election or defeat of a candidate so long as the book was paid for partly using corporate money - is really wacky. That's never been the law. But the Court could easily have "saved the statute" by ruling that the statute couldn't be interpreted that way. There is a very meaningful difference between capping spending and regulating content itself, and the Court is smart enough to be able to say so.

    Also, using Citizens' United itself as an example isn't really very constructive to this debate (although it does help explain the result in the case). It certainly shows that the attorneys in that case had excellent plaintiff selection skills and that the law created an absurd result in that instance, but it doesn't nullify the broader implications. Now Exxon, GE, and the like get those same protections as innocent little Citizens United.

    (cont'd)

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    1. Finally, there's this:

      Far from being a tool of repression, corporations advanced the interests of democracy and equality by allowing the little guy to organize to accomplish what otherwise could only be achieved by the very rich. Ending corporate personhood would not stop billionaire individuals like the Koch brothers or George Soros from using their wealth to affect the political process, but it would hamper small grass roots organizations which choose to use the corporate form.

      This is perhaps a sound point about why, in an ideal world, corporate personhood could be good for the little guy. There is an appealing analogy to unions being the way that laborers, who have little power on their own, banding together to take on the more powerful management. But if that's the analogy, then imagine that management can also unionize to band together against the bands of employees! Then the advantage employees have from banding together is completely eclipsed because there can also be an alliance of the powerful to blot them out. That may not be the intent of the system, but that's the result. The Koch brothers and George Soros are limited in how much they could spend on promoting candidates, but now they can feed an infinite amount of money into corporations, each of which can multiply their already powerful voices. The little guys can still band together to do the same, but their voices will continue to be drowned out. That's the real problem with Citizens United - not the existence of corporate personhood itself, but its extension into this context.

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    2. For the uninitiated, "rosebriar" is my sister.

      Note: Trolling of my sister in the comments section will not be allowed, so be nice! ;-)

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    3. What a nice big brother!! :-) It's true, I'm Noah's sister, which may account for some pro-Noah bias on my part. I'm confident that it's actually just because he's awesome, though.

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    4. Noah sucks but you're okay.

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    5. "The little guys can still band together to do the same, but their voices will continue to be drowned out."

      This is a particularly important point given our current context.

      Most Americans' wages haven't risen in about 30 years; the accumulation of wealth at the top of the income/wealth heap is out of whack with the previous 70 or so years' experience; evidence indicates that neither of our two political parties are particularly responsive to the views of the nonwealthy; our social mobility has declined to the near-bottom of the OECD; the concentration of wealth is in large measure a result of the growth of the financial sector, of which economists & fund managers like Paul Volcker & Jeremy Grantham have argued, respectively, that "I wish someone would give me one shred of neutral evidence that financial innovation has led to economic growth — one shred of evidence", and that "Finance was 3% of GDP in 1965; now it is 7.5%. This is an extra 4.5% load that the real economy carries. The financial system is overfeeding on and slowing down the real economy. It is like running with a large, heavy, and growing bloodsucker on your back. It slows you down."

      Context matters; libertarian rhetoric was more plausible in, say, England in 1977 than it is today.

      So, yes, it's nice that corporations exist, it's nice that we can pool our resources and start companies (I mean, it beats feudalism), it's nice that people can sue corporations if they do bad things. But that's not what this debate is about. It's about the policy implications of unlimited corporate political spending.

      Josiah's post ducks the debate. He offers no fact or set of facts that would support the claim that Citizens United has a positive impact. No one anywhere near political power wants to abolish the corporation; people are advocating a return to the pre-Roberts court, or maybe pre-Rehnquist court, understanding of the First Amendment.

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    6. The idea that a legal construct given life by the state can't be limited in its powers by the state is ridiculous on its face. Is it good or bad that corporations were granted 1st amendment rights? Who cares. The idea that the legislative and executive branch can't decide the powers of legal constructs created by law is stupid.

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    7. I agree. "...[L]ibertarian rhetoric was more plausible in, say, England in 1797 than it is today."

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    8. Wonks Anonymous6:02 PM

      The example of a union is good, because a union is literally a corporation. Citizens United applies to unions, and unions frequently engage in political activity (even if a few of their members might not approve).

      Zach, are you arguing that limiting the executive & legislature by the Constitution is stupid? Or that it would be stupid if they couldn't restrict the granting of corporate charters? I happen to think the Constitution has little bearing on the granting of such charters (its the job of the states), but that it is stupid for the government to be as restrictive with them as in the bad old days of quasi-public monopolies.

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    9. This comment has been removed by the author.

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    10. Zach, are you arguing that limiting the executive & legislature by the Constitution is stupid?

      Wonks Anonymous, to me, what Zach wrote is simple and lucid. Your response, otoh, seems turbid and obfuscatory. If our law-making institutions create a legal entity, then our law-making institutions are and should be free to define the rights of such entities as they see fit.

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    11. Rosebriar,

      Thanks for the thoughtful reply. Here is what I would say in response.

      1. The idea that because the corporate form is something created by the state therefore states may place whatever restrictions they want on speech made by corporations may sound good at first blush, but it doesn't stand up under scrutiny. Copyright protection, for example, is also a creation of the state. If Congress wanted, it could get rid of copyrights altogether. Yet it doesn't follow that because Congress creates copyright protection it can regulate the speech of copyrighted works however it wishes. It could not ban speech critical of the government in copyrighted works. Nor can the government use its role in the creation of the corporate form as a justification for restricting speech critical of government officials.

      2. On the idea that you don't need to protect corporate speech because you can just protect the rights of individual columnists, editors, etc. I would say that this either proves too much or too little. Ultimately a corporation cannot speak for itself. Some individual has to do the speaking, writing, etc. that makes up corporate speech. If all of that is protected, then saying that corporate speech is not protected is just a matter of semantics. The real issue is whether the government can place restrictions on the use of corporate property to produce or disseminate speech. Could the government say that while Paul Krugman is free to say whatever he wants as an individual, the New York Times corporation can't spend any money to publish that speech because it is a corporation and hence not protected.

      3. Finally, you are right that the plaintiff in Citizens United was very well chosen. But the only reason CU was able to be a plaintiff was that the federal government was interpreting the law in such an overly broad way.

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    12. Anonymous8:45 AM

      Funny how you are willing to engage with rosebriar, who made nice before pointing out how wrong you are, while ignoring your other critics. While that may be a comfortable stance from your point of view, out here in the readership, it looks suspiciously like you don't have a good answer to your other critics.

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    13. Josiah,

      Thanks for your response! I have a couple of thoughts about it -

      1. I didn't mean to say that I think the state can restrict all speech by corporations just because it created them (although it certainly seems that was the position the government was taking in Citizens' United, and I agree completely that that's nuts). I only meant that creating a corporate "person" doesn't mean that the corporation now must have all the rights of a natural person. As one of the other commenters notes, for example, they can't vote, and I happen to think that's a good thing! I think we need to take a second look at the idea that once a corporation is a person, it's *exactly* like a person and must be treated as such. I also think that while your copyright example is certainly a helpful illustration, I question how apt the analogy is. The corporation is an entity created and allowed to exist by the state. A copyrighted work exists whether it's given copyright protections or not. Maybe that's a distinction without a difference - after all, the existence of a "corporation" just means that there are certain protections for the groups of people acting as part of that corporation, just as copyright confers protections for that work - but the copyrighted work doesn't gain any kind of independent existence through those rights, so government restrictions on all copyrighted works would, I think, be meaningfully different from placing limitations on what a state-created entity can do with its money.

      2. I see what you mean here, and indeed, this is the benefit of the CU decision: it prevents the government from regulating corporations' spending money on speech it doesn't like. I appreciate your post in particular because that's so often overlooked. But ultimately, I think it would be fine for the government to regulate the amount spent on promoting candidates, as long as it's done in a content-neutral way. The NYT and most of the press would likely not end up being prevented from publishing articles for the exact opposite of the reason that CU was: its product is (at least in theory!) intended to inform, not to promote a candidate. That's likely why the media never ends up getting hit with this kind of lawsuit (that, and they have an army of awesome lawyers, no doubt ;-)). This, of course, isn't the same as saying that the government could always regulate/limit anything a corporation spends money to say; it's a limitation on how much it can spend specifically intending to promote a candidate. And as I noted in my previous comment, that does even the playing field for smaller groups. Naturally, this sort of regulation could easily be abused, though, which is why I think it's important to keep in mind the counterpoints you've made. and finally,

      3. Very true! But I still don't see why the Court couldn't have crafted a more narrow ruling that saved the statute while reading out overbroad interpretations.

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  13. Corporate personhood is fine for the purpose of making contracts and organizing resources, but the author misses the entire point of the consequence of Citizens United decision: UNLIMITED MONEY INFECTING POLITICS.

    And since he's too chicken to take a position on that (because that's an argument easily lost by anyone who thinks money = speech), it should be laid out pretty clearly: the United States is the _only_ industrialized nation that allows money to influence the electoral process and has such a long, pathetically theatrical, superficial campaign process. Only in America is electioneering literally a billion dollar industry.

    Typical tactics of those who work within the system is to distract and confuse, in order to deflect attention from the REAL problem underneath.

    Article V convention is the only solution. Congress is poisoned by money, we need a Constitutional amendment to get money OUT of politics. Go to WOLF-PAC.com and join the effort to kick jackasses like Neeley out on the street where they belong.

    ReplyDelete
    Replies
    1. Wonks Anonymous6:04 PM

      I wouldn't be surprised if campaigns are more expensive here, but I have to admit I'm relatively ignorant about the rules for expenditures elsewhere. Do you have any links to international comparisons?

      Delete
  14. Anonymous12:01 PM

    It is illusory to contend that corporations have freedom of speech.

    All corporate actions-- including speech-- are limited by general corporate law principles that require corporate actions to be in what is perceived as the financial interest of the majority of the shareholders.

    Find me a corporation that can espouse a position based on the common good rather than the perceived financial interests of its shareholders and I'll believe that the corporation has first amendment rights.


    ReplyDelete
    Replies
    1. How about a nonprofit? Citizens United was a nonprofit, a group of people that came together for an explicitly political purpose. Perhaps you would have favored a decision that only applied to such nonprofits?

      Delete
    2. Anonymous8:48 AM

      In the general run of court decision-making, it is considered good form to limit decisions to just the issue presented to the court. The Court decided to take the opportunity of the Citizens United case to overturn precedent and overturn Congress far beyond the scope of the case it was asked to consider.

      So yeah, maybe the Court should have stuck to ruling on non-profits.

      Delete
  15. "But suppose that I bought the meat not from an individual butcher but from Acme Meat, Inc. It was a central doctrine of the common law that only persons could sue or be sued, own property, or make legally binding contracts. So if a corporation is not a person, I am out of luck."

    Why can't you sue the owner of acme meat? This whole argument seems like a slight of hand. Why shouldn't the owner/s of a business be personally responsible for what it does?

    ReplyDelete
    Replies
    1. Wonks Anonymous6:06 PM

      There are actually serious arguments to be made against limited liability. The "free banking" era of Adam Smith's Scotland relied on much more liability than our modern system, and Smith personally lost money as a result of being a shareholder. That has been referenced as a source of stability for the system, since it deterred recklessness on the part of the banks (although the reserve ratio was still quite low).

      Delete
  16. In fact, you can sue a supervisor or owner, etc., for some things, but you have to show that it was actually the owner's fault or that the owner was actually responsible for whatever happened in some meaningful way, as opposed to the harm being caused by the independent bad act of an employee that really wasn't the owner's fault. It's easy enough to say that the owner should be responsible for everything a company does, but especially once companies get really big, it isn't really fair to hold one person responsible for everything anyone in the corporation might do.

    But one thing to consider, more practically, is that the owner's funds and the company's funds aren't synonymous. The owner may not personally have the money to pay for the wrong done - or for all wrongs done by anyone in a really big company - and the company itself is much more likely to pay for it.

    ReplyDelete
  17. Of course, if you can just sue ALL of the owners - i.e., the shareholders - then maybe it wouldn't be necessary to call the corporation a separate "person." That's an interesting thought that I probably haven't considered for long enough to figure out why it wouldn't work. :-)

    ReplyDelete
    Replies
    1. Rosebriar,
      It wouldn't work because nobody (or less people) would buy shares if they could be sued
      for the liabilities of large companies over which they had no control. if you want large scale capital from outside funders, you have to limit their liability. Imagine 401 plan holders being sued for Lehman'a debts.

      Delete
    2. Oh right. That's kind of the point of a corporation, isn't it? Thanks. :-)

      Delete
    3. BTW, if you want to see how others manage to tie themselves in knots over lobbying and elections, google "lobbying bill uk." I used to look at US campaign finance in a rather smug way, but we seem to be managing something worse.

      Delete
    4. I think the solution is that the entity that provides the liability shield (the state of incorporation) should be on the hook for any unmet liabilities of the corporation.

      Delete
    5. Anonymous8:54 AM

      The point that corporations can become large because of limited liability is a fact, but we have not reason to just take for granted that it's a virtue. It's pretty clear that one reason fairly large banks strive to become very large is so that they can transfer risk to the government. The same transfer of risk appears to apply to auto companies, though that may not be the reason they strive to become large. Avoiding personal responsibility for harm done on one's behalf hardly seems a neutral quality.

      Delete
  18. There's no reason to sue the corp or its owner for the bad act of its employee unless the corp is shielding the employee from liability. Why would it do that? What I can imagine happening is companies trying to blame everything on employees. Employees would have to have legal insurance or a common legal defense fund for such cases.

    But once you get past that, larger collective owner liability questions (ie - BP in the gulf) don't seem to require superhuman intelligence to sort out. Or if they do, then we've identified at least one moral hazard that all of this conceals.

    The shareholder direction is a good one. Companies already view themselves as acting in the name of and for the benefit of shareholders, so why can't the CFO pay fines or the CEO accept restrictions and liabilities on behalf of the shareholders?

    ReplyDelete
    Replies
    1. "There's no reason to sue the corp or its owner for the bad act of its employee unless the corp is shielding the employee from liability."

      Well, there is actually. The employee probably doesn't have much money, or the money to buy insurance. Take your BP example. Say you could pin the blame on 1 person (which I doubt). He or she won't have $20 billion.

      Delete
    2. There's no practical way that joe average can do 20 billion dollars worth of damage unless he's empowered to do so by some act of negligence on the part of the much larger collective behind him.

      Each case would have its own particulars (http://en.wikipedia.org/wiki/Joseph_Hazelwood) but, as today, I don't think we would tend to hold individuals responsible simply because its intellectually easier. In the case of Exxon Valdez, even if Hazelwood were drunk we could ask how Exxon could have allowed a drunk captain on the ship. If that seems argumentative, it's really not more onerous than what we're doing now.

      Maybe I'm being argumentative, but it just seems like most of the arguments for permitting corporations to be persons come down to one form or another of "it's easier" rather than "it's right".

      I would be comfortable, btw, with federal legal aid in such cases.

      Delete
    3. "There's no practical way that joe average can do 20 billion dollars worth of damage unless he's empowered to do so by some act of negligence on the part of the much larger collective behind him."

      Shezdts, you'd be surprised what joe average can do. . But going back to BP, do you really think, say, Tony Haywood, CEO at the time, has $20 billion? Or the board of directors?

      The company was undertaking a risky activity. Indirect shareholders (like me and everyone in rhe UK who has a pension fund - and a lot of US investors, as it's 40% US owned - stood to gain. Only fair that we stand to lose if things go wrong. But that loss is limited to what we put in. Seems fair to me.

      Delete
  19. Facebook stock, Bay Area real estate, gas prices, healthcare, rent, and insurance keep going up. Wages? not so much. But fear not, says Krugman because we're not Greece and inflation is non existent. True, unless you're buying appliances or apparel your dollar won;t go nearly as far as it did just 5 yeas, but we can't call it inflation

    ReplyDelete
    Replies
    1. What you're describing is not Inflation. Nce try.

      Bay Area Realestate - Price increases due to increased demand

      Facebook Stock - New information concerning potential future advertising revenue leads investors to beleive the company is worth more

      Gas Prices - Global commodity determined by global forces of supply and demand, anyhting from new extraction tech to unrest in the middle east and speculation moves prices much more

      Healthcare - Prices are slowing due to new legislation

      Insurance - very vague, many types of insurance here, but economic uncertainty during the recession would increase risk and therefore insurance prices

      Wages - Now we are talking! Concentration of wealth has changed as well as income disparities between large swaths of the population. But this is a much more interesting and nuanced problem that really has nothing to do with inflation.

      Delete
    2. Bill Ellis6:44 PM

      Is this the off topic thread of the comments section ? Let's talk about puppies !

      Delete
  20. The reason it is bad is that it reduces disclosure and transparency allowing the powerful to hide behind shell corporations. If we made all corporations fully disclose their contributors and shareholders and all information associated with them, there would be little objection.

    ReplyDelete
  21. Argosy Jones1:23 PM

    Suppose I buy meat from a butcher and it makes me sick. I might wish to sue the butcher for damages. But suppose that I bought the meat not from an individual butcher but from Acme Meat, Inc. It was a central doctrine of the common law that only persons could sue or be sued, own property, or make legally binding contracts. So if a corporation is not a person, I am out of luck.

    If a corporation could not own property, it could never have sold you the meat.

    There is something wrong with this example and you should think about it.

    ReplyDelete
  22. Your argument is well taken and a consequence of that argument is that Corporations should have the same rights as individuals in rent-seeking.

    Rather than argue against your thesis I would say that Citizens United ended up giving legal persons (corporations) more rent-seeking prowess than individuals.

    I think the Citizens United decision would be fine with many if we reformed, and significantly lessened, the corporate contribution limits and imposed term limits on Congress.

    ReplyDelete
  23. (1) Oh, thank God the rancid-meat-peddling Acme company is a corporation, therefore I can sue them. Of course, they can declare bankruptcy, dissolve their operations and reconstitute inside an alternative corporate shell, while basically telling me and my fellow plaintiffs to f-off (I'm assuming this being an ideal libertarian free-contract world, we're just going mano a mano as autonomous agents, with no pesky government regulation) but otherwise it's all good. Wheee!

    (2) If corporations are fully equivalent constitutionally to natural persons, shouldn't I be able to marry one? If not, why not? Not sure why the anti-gay-marriage crowd doesn't play this one up more, as opposed to the self evidently idiotic man-marries-dog-or-pack-of-Skittles line; I think it's got legs (so to speak).

    ReplyDelete
    Replies
    1. Darryl, on your point 1. Do you have, or intend to have at any time in the future, a 401 plan, or ownership of a mutual fund? If so, are you happy to accept unlimited personal liability for the underlying companies?

      Delete
    2. Um... the limited liability angle was my point. Incorporation in its modern form is intended to shield both owners and assets from liability to lawsuit, which is the exact opposite of the argument made in the post, in which ostensibly the point of treating a corporation as a person is to render it liable to suit. My comment is not a comprehensive critique of the manifold potential applications and permutations of LLC's legally, conceptually or practically, merely to point out that (a) they are artificial legal constructs top to toe, and (b) are in almost all cases designed exclusively to benefit their owners/originators. Depending on the legal framework of the society in which they are instituted and the context in which they are applied, a given set of rules governing incorporation may generally enhance or detract from the rights and opportunities of the actual natural persons constituting the society. Because they are not natural persons themselves, that is the basis on which the appropriate rights, privileges, limitations, and obligations accruing to any incorporated entity should be judged.

      Delete
    3. Darryl could you answer my question? It's yes or no.

      Yes/no. Own mutual fund and have unlimited liability down to the shhirt off your back for the debts of the underlying companies, or the current system. Or put your retirement funds in cash and earn nothing

      This is of course digressing from the OP about freedom of speech for corporations, That's really complicated.

      Delete
  24. Then why can the fully own other corporations? If corportaions are people than how are wholly owned subsidiaries not slavery? Or do they basically become dopplegangers as able to function as more than one person?

    ReplyDelete
    Replies
    1. Wonks Anonymous6:12 PM

      At one time Nozick would have said it just goes to show that people should be able to sell themselves into slavery! He later changed his mind, but Walter Block bites the bullet and sticks with that position. The more serious answer is "Don't push the legal fiction too far". As long as any individual affiliated with the corporation is allowed to leave, its not slavery. Although I think even then some restrictions on what you can do with your stock would be acceptable. Corporate suicide through dissolving itself is certainly legal though!

      Delete
  25. Bill Ellis6:32 PM

    Josiah Neeley, The problem with Citizen's Untied was not that it granted the rights of free speech due the individual to corps.
    The problem arises from a combination of the Citizen's United ruling the ruling that struck down the "Millionaire's Amendment" that was part of McCain-Feingold.

    The Millionaires Amendment was an effort to limit an individual's ability to spend politically. The Supreme Court ruled that limiting someone's ability spend was the same as limiting their right to free speech.

    Striking down the Millionaires' Amendment was a mistake. They failed to give any weight to the idea that one persons ability to communicate can infringe on an others. They failed to consider how volume effects communication. The right to free speech is useless with out the right to be heard.

    In practical effect, Court ruled the right to drown out other voices can be earned--The Court ruled that it is all right to buy up as large a % of the communication channel as one can afford.

    The Walton's want to buy up every news paper in the USA ? Why not? PROVE it would hurt someone, otherwise we can't infringe on someone's rights on just a "suppose". ( This court is very fond of ignoring history and reality to give the elite more latitude. Weasels. )
    Warnen Bufftet wants to buy fox, nbc and abc...sounds good to me.

    The problem is not equating corps with people, it is equating money with free speech.




    ReplyDelete
    Replies
    1. Anonymous9:01 PM

      Come North, then. The Supreme Court of Canada in Harper v. Canada [2004] specifically said money is not speech. The Canada Elections Act limits third-party (non-candidate or a candidate's party) to $150,000 nationally and $3,000 per riding (constituency). Stephen Harper, then chair of the National Citizens Coalition and currently out Prime Minister challenged that ruling and lost at the Supreme Court. The Canadian Charter of Rights & Freedoms allows rights to be limited "to the extent justifiable in a free and democratic society". Donation and spending limits are justifiable under the Charter.

      Notable, Harper didn't remove the specific limits he fought after he became PM, instead he lowered the donation limit from $5,000 to $1,200 each to a party and to a riding and banned corporate and union donations totally.

      I'm an NDP activist in Canada and we're just fine with that; the NDP (union-friendly) still manages to spend the limit on national campaigns without union donations.

      Delete
  26. Anonymous6:47 PM

    "Contrary to popular impression, corporate personhood did not start with Citizens United. In fact, corporate personhood dates back to the old English common law, where it was originally conceived as a consumer protection measure."

    This initial statement is breathtakingly wrong. (Well, the second quoted statement, anyway.) It turns the concept of corporate personality on its head, and asserts that the reason was to allow people to sue corporations for consumer protection, when in fact it was to prevent people from suing merchants and owners.


    ReplyDelete
  27. Uh Noah? Um, question here. Is there going to be anyone you've invited to this blog that will do something other than deliver a punch to the gut from a solidly right wing perspective? I've found the last few posts dismaying and I'm about to delete this blog from my rss reader.

    ReplyDelete
    Replies
    1. Bill Ellis3:17 PM

      Gee, I like this kind of diversity of opinion. ( Insert Noahpinion joke. )
      When Noah comes back this liberal would like to see him keep the whole gang doing guest posts.

      Delete
    2. I'm not "solidly right wing" and I don't think Aziz is either :)

      Delete
    3. I've found the last few posts dismaying and I'm about to delete this blog from my rss reader.

      I just invited people I thought would be smart, informed and entertaining! I didn't think about their political leanings. And I don't want to tell them what to say. If you have to delete the blog from your RSS, go ahead! Just remember that I'll be back in a few months.

      But also realize that Peter Dorman, who will be coming on board in October, is solidly left-wing.

      Delete
    4. Bill Ellis - seconded! Aren't we having a stimulating discussion here, after all?

      Delete
    5. Nathanael3:01 AM

      "I just invited people I thought would be smart, informed and entertaining!"

      Well, you apparently made some mistakes. "Josiah Neeley" just proved himself to be extremely misinformed and is looking pretty stupid too.

      Either that or he's just a dishonest hack. He's never heard of "joint and several liability" and lawsuits against unincorporated associations? SERIOUSLY? The entire premise of his piece is factually false; he doesn't know his historic English common law.

      I don't find that very entertaining.

      Anyway, the lesson for you, Noah (apart from "don't invite Josiah Neeley back") is that you don't have very discerning taste in people. It's always good when you realize your own weaknesses, so it's important to recognize this.

      Delete
    6. Nathanael3:03 AM

      In short, if this blog entry were submitted as a paper in a class, I'd give it an "F" for making unsupported statements which are actually provably false.

      Delete
  28. Far from being a tool of repression, corporations advanced the interests of democracy and equality by allowing the little guy to organize to accomplish what otherwise could only be achieved by the very rich.

    Sounds great in theory. However, in practice it is the powerful, the wealthy who are leveraging this tool. This claim is reminiscent of the picture of "small family farmers" often painted by corporatist politicians. Positively Disneyesque.

    ReplyDelete
  29. I am more interested in the concept that money is speech and therefor protected. How they heck do you call a dollar speech?

    ReplyDelete
  30. Uhhh, corporations are "persons" created under statute by the government. The government can grant them or deny them any rights it wishes. In fact, corporations used to be chartered with only limited rights. Many activities were considered "ultra vires", beyond their powers. An incorporated bakery, for example, could not go into the meat business with an approved change to its charter.

    Calling a corporation a person does not make it a human being. "We, the people", in the preamble to The Constitution, did not include corporations. Where The Declaration of Independence mentions rights endowed by a creator, it was not referring to rights conferred by the government to a corporation.

    At best, your argument is ingenuous.

    ReplyDelete
    Replies
    1. I'm simply floored that the obvious, as stated above by Kaleberg, has not been shouted from the rooftops and does not appear to have been mentioned by SCOTUS.
      Corporations are "creatures of statute" and are what we say they are and no more. Congress or a state could repeal its Business Corporations Act or Company Act and that would be that.

      Delete
    2. I can't understand why they need more than this. SCOTUS apparently believes that if you want to give people the right to pool their money and not be sued you have to allow them to donate to candidates. That doesn't make any sense.

      OP's copyright analogy is strained and ridiculous. I would think Congress should be able to exempt all political speech from copyright protection. In fact, why should political speech have copyright protection? Doesn't merely re-publishing political speech constitute fair use?

      Delete
  31. Dumbest noahpinion post ever. Not because it is right wing, or whatever, but because it is just dumb.

    ReplyDelete
  32. I haven't read all of the many comments here, so forgive me if I'm repeating others. But it seems to me this part:

    So if a corporation is not a person, I am out of luck. The response to this was to treat corporations as legal persons, who could sue or be sued, make and enforce contracts, buy, sell, and hold property, and so on.

    would only lead a rational person to conclude that the common law was, as in so many other areas, inadequate, and that statutory law is needed to amend the common law and to allow for corporations having a status as separate legal entity subject to claims, suits, etc., without elevating it to the status of "person". This is touched on briefly in the post, but skated over:

    Of course, courts could have granted corporations all the same rights, abilities and duties without calling them persons. But this would have been merely a semantic difference. Once a society decides to have corporations, it has to grant them something along the lines of legal personhood if for no other reason than to protect those who deal with it.

    The above claim seems like a tremendous leap. Why not create a distinct category for corporate entities that is decidedly not "along the lines of" personhood? The choice was clearly not a "mere" semantic difference, because according corporations the status of persons by crudely grafting the pre-existing designator "person" onto them ended up having momentous harmful and unintended effects.

    ReplyDelete
  33. Re your update
    "Our beloved blog owner, Noah Smith, says that Corporate speech is bad because violates the rights of individual shareholders who disagree with it. I don’t think that works as an objection. After all, corporations are inevitably going to be engaging in all sorts of non-political speech: advertising, press releases, business publications, etc. The fact that a single Apple shareholder disagrees with a commercial for the new iPad doesn’t mean that his rights have been violated. So why would political speech be different? "

    Well the easy reason that a corporation is a legal fictive person, created for a SPECIFIC purpose. It is not obvious that those rights extend beyond that purpose.

    ReplyDelete
  34. Well, we know that Citizen United decision is overwhelmingly unpopular. Interestingly, this is so almost without distinction based on ideological view point; roughly 70%ish of both Democrats and Republicans want CU undone. (clearly there is less agreement on exactly how to do this)

    This post, as an apparent attempt to sway opinion in support of CU, fails dismally. The essential underlying point that such a large majority of people base their negative view of the CU ruling on is quite simple: corporations are not people. It simply is not that complicated. Indeed such a conclusion is an offense. We the people are endowed by our creator with inalienable rights. The notion that corporations are also so endowed is the crucial argument that you need to make if you want to sway the majority. Good luck. We the people are endowed with rights by our creator - Corporations too are endowed with rights by their creators. This is the second part of the offensiveness of the CU decision: we, the creators of corporations, are alienated from our ability to endow corporations with those rights we choose.

    I have yet to see this argument made effectively - this is something of a tautology for certainly if this had been done, opinion would have been swayed. Respectfully, I place zero chance on your ability to do so, in part because even though you claim proximity and association to the issue you have clearly failed to grasp the essential issue. And your line of argument that corporations are sometimes good therefore they are always good, and that corporations should have some rights (and responsibilities) and therefore they should have those rights and responsibilities of a natural person is in the most polite description possible; unpersuasive - not least because you make no supporting argument as to why either logical progression should be so.

    I am not the first commentor to ask, but please, you need to address the critics of your post.

    CU is a travesty.

    ReplyDelete
    Replies
    1. He offered one rebuttal based on copyright being a legal creation but congress not being allowed to proscribe what qualifies for copyright protection. Which, I think is also stupid, or too clever by half. Could I be sued for copyright violation for verbatim copying the campaign speeches of politicians forcing them to own their words? Or would some reverse double ju-jitsu save me because of 1st amendment? Besides, if a whole neutral class of speech (all campaign speech by candidates or campaigns) was denied copyright protection would that be unconstitutional on some grounds? Is a copyright to all work regardless of content guaranteed in the constitution? How would it even work that government would deny a copyright to anti-state speech? So that means that people could freely copy anti-state speech? What is the constitutional right that violates? Are people losing profit on this anti-state speech because it doesn't have copyright and is suddenly available everywhere?

      Enough gymnastics, as you said, legal entities get the rights endowed by their creator. Succinct and on point.

      Delete
    2. Wonks Anonymous3:41 PM

      "Is a copyright to all work regardless of content guaranteed in the constitution?"
      No, the Constitution seems compatible with Congress deciding not to permit any copyrights whatsoever (although it also has the power to grant copyrights). But a law denying any copyright to, say, antigovernment media, could plausibly be considered to infringe on freedom of speech/press.

      Delete
  35. Anonymous4:01 PM

    Unless it has arse kick and a soul to damn, it is not a person. Surely one can tell the difference between a real person and a legal fiction?

    ReplyDelete
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  37. Anonymous11:42 AM

    So, corporate personhood is necessary in order to protect ourselves from the monied interests? That's just pure evil bear excrement. Alexis de Tocqueville may have been right 150 years ago, but he is not right anymore. Money has completely corrupted the process, and now we are living in the "House of Cards" world.
    In the authors example, why shouldn't the hypothetical person who purchased bad meat from Acme Meat Inc. be able to hold individuals within Acme Meat Inc. accountable? Shareholders should be protected with a corporate veil, but not the management nor its labor force. Further, shouldn't Acme meat's corporate charter be subject to annual review and approval by the people, for whom the benefit of corporations presumably exist? The aggrieved meat purchaser should sue the individuals who sold the meat, the defendants should be prepared to go to court, and Acme Meat Inc. should be prepared to lose its corporate charter unless it assists the plaintiff's cause in a satisfactory manner. Complete transparency, and a more comprehensive justice.
    By giving corporations personhood, we are trying to make things right by making two wrongs (IF that's what we are trying to do). The correct way to protect the citizenry from influential wealthy interests is to remove as much money from politics as possible. There is no smooth transition phase, either. We just have to do it.

    ReplyDelete
  38. Anonymous1:19 PM

    Just added your great article to: Support Corporate Personhood Facebook Group, a resource for those interest in arguments in favor.

    http://www.facebook.com/Corporate.Personhood

    ReplyDelete
  39. Anonymous11:42 AM

    As the saying goes: I will believe corporations are people when one gets the death penalty.

    Corporations are a shield from liability for investors, period. An artificial construct of the state. An opportunity for investors to evade the responsibilities and consequences they would otherwise face as individuals.

    Corporations can be in more than one place at a time. They never die. They can be dissolved and reformed at whim.

    On a rational basis, there is no foundation to assert they are deserving of Constitutional protections - not just those accorded human beings - but in fact enjoy special rights and protections not available to human beings.

    If you want to see what special rights for corporations look like; you might examine FFTA/WTO, or the upcoming TPP for all the evidence you need.

    Further, on a practical basis, one need only look at the window and see the devastation these beyond-persons have wreaked on our democracy. Something is seriously broken with corporate power, and most serious analysts trace that back to corporate person-hood. (the right wing of course meanwhile blaming against all evidence and logic: over-regulation).

    ReplyDelete
    Replies
    1. I think it is necessary to separate the legal fiction of a corporation being able to act as a single entity (which is quite reasonable under some circumstances, because a well run corporation does indeed operate as a single entity) from the very particular situation of limited liability which allows shareholders to collectively damage someone and walk away without paying for the damage they have done.

      We can of course argue over each of these, but mixing up those arguments helps no one.

      The issue of corporations being dead or alive is open to all sorts of debate. In some ways, any regulatory change to a corporation in effect "kills" the old corporation, and "brings to life" a new and different corporation, but the brand name may continue for appearances sake.

      Delete
  40. Nathanael2:55 AM

    "
    Likewise, once a society decides to grant corporations the right to own property, it is absurd to deny them constitutional protections."

    Absolute nonsense. In fact, it is absurd to *give* corporations constitutional protections -- and we DON'T. They don't have the right to vote, for instance.

    The corporation is a useful legal concept, and it is useful to be able to sue an organization, and it is useful for an organization to be able to own property. But that does NOT make them persons. And it does NOT grant them constitutional rights.

    In fact, this is settled legal doctrine. Corporations exist *on suffrance* and can be disbanded *at any time* -- in most US states, by the action of the Secretary of State, who may revoke the corporate charter for any reason the legislature sees fit to come up with.

    People retain the right to free association and the right to form associations -- but having a legal cover for that is a *privilege*, not a right.

    And your bullshit idea about Acme Meat not being sue-able is wrong, historically; under settled common law, all the butchers involved could be sued "jointly and severally" for *conspiracy*.

    ReplyDelete
  41. 1. "Artificial" personhood is an inheritance from British Common Law but "natural" corporate personhood is a construct of the U.S. Supreme Court. The original functioning precedent is in the headnote in Santa Clara County v. Southern Pacific Railroad (1886): "...corporations are persons for purposes of the Fourteenth Amendment..."

    The operative clause of the Fourteenth is: "All persons born or naturalized in the United States are citizens of the United States and of the states in which they reside..." Corporations are neither born nor naturalized. Therefore, "natural" personhood, not the artificial personhood already accepted and affirmed in Dartmouth College v. Woodward in 1819, is wholly a construct of the Supreme Court that is not found or grounded in the U.S. Constitution.

    2. Yet, the Supreme Court continues to treat unions as third class wannabes. In the case of Knox v. SEIU (2012), the majority held that the officers of incorporated unions need to receive the blessing of their members to make political expenditures, even after accepting that corporate officers faced no such restriction vis-a-vis their shareholders in multiple cases. Comparing for-profit corporations and incorporated unions isn't apples and oranges, it's apples and orangutans.

    3. The right of assembly is a right of assembly, not association, even though it has been extended and widely accepted to include association. There is no section of the U.S. Constitution that extends the right of assembly to artificial creations of the several states. Individuals have a right to assemble and associate for every legal purpose but the existence of any legal fiction they choose to incorporate as an expression of that association isn't even recognized in the Constitution.

    The Commerce Clause does indeed grant the U.S. Congress the power to limit or prohibit an artificial entity like the NY Times from spending money across state lines, irrespective of the First Amendment. It does not empower the Congress to limit the speech or press rights of the individual owners of any newspaper but it does grant wide latitude is managing the economic activity of all entities, including individuals, when those activities involve two or more states.

    4. However, non-profit corporations that engage in various types of protected activity can rely on the individual rights of their members and agents to assert corresponding rights. In the cases of NAACP v. Alabama (1958) and NAACP v. Button (1963) the court held that the legal fiction (NAACP) had standing to assert the corresponding individual rights of its members and employees, which, in essence, granted a temporary "natural" personhood to the artificial entity for the narrow purposes of being a plaintiff in those cases.

    These and other relevant issues are discussed at length at AmendmentGazette.com.

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