The Legal Fiction All Progressives Should Know About

by: Hannah McCrea

Sat Dec 12, 2009 at 08:00


Have you ever wondered why corporations like Exxon Mobil have free speech "rights" under the Constitution when corporations can't "speak," and when the Constitution was written to protect "We the People" and never mentions "corporations"?   Do you worry that maybe, just maybe, the Supreme Court is putting the interests of corporate America over the rights of hard-working Americans?

If so, then you probably want to learn more about a piece of legal fiction called "corporate personhood."   And you should probably start with this terrific lecture from that preeminent legal scholar, Stephen Colbert:

If, after watching Colbert, your interest is piqued - as it really should be -- then I urge you to take a look at this discussion draft of a report on corporate personhood, recently released by the Constitutional Accountability Center (CAC, where I work), which tells you more than you probably ever wanted to know about the topic. (CAC is planning to release a final version of this report in January 2010).  While we've already distributed this to a number of legal blogs in an effort to get feedback, we also wanted to publish it here, to reach a broader audience.

Hannah McCrea :: The Legal Fiction All Progressives Should Know About
CAC prepared this report in an effort to better inform the legal and public debate surrounding the Supreme Court's looming decision in a case called Citizens United v. Federal Election Commission (better known as the "Hillary: The Movie" case).  After hearing argument in the case in March 2009, the Court in June ordered an expansion of the issues it would decide, heard re-argument in September, and  now could be poised to do away with a principle that has not only been the underpinnings of  campaign finance law since the Tillman Act of 1907, but is also a bedrock principle of our Constitution:  corporations and individuals are different, and because of the special privileges corporations receive to succeed in business, corporation do not receive identical rights under our Constitution.  For the first time in nearly a century, the Court may change the state of the law to say that unlimited amounts of money from corporations' general treasuries (i.e., the funds where corporate profits sit, not the isolated and highly-restricted "PAC" funds through which corporations currently influence elections) may flow freely into federal and state elections.

So if it troubles you to think that a corporation like Exxon, which raked in $45 billion in profits in 2008, could, with a diversion of a small fraction of those profits, overwhelm the spending of both major parties in the 2010 election, you should be following the outcome of Citizens United.  And if you want to know why the Court should uphold the longstanding restrictions on corporate efforts to influence elections, please read CAC's report.

Hannah McCrea is proud to work at the Constitutional Accountability Center (CAC), a think tank and public interest law firm dedicated to showing how the text and history of our Constitution uphold progressive outcomes.


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"The Corporation" is a psychopath! The movie to this story. (4.00 / 3)
To assess the "personality" of the corporate "person," a checklist is employed, using diagnostic criteria of the World Health Organization and the standard diagnostic tool of psychiatrists and psychologists. The operational principles of the corporation give it a highly anti-social "personality": it is self-interested, inherently amoral, callous and deceitful; it breaches social and legal standards to get its way; it does not suffer from guilt, yet it can mimic the human qualities of empathy, caring and altruism. Four case studies, drawn from a universe of corporate activity, clearly demonstrate harm to workers, human health, animals and the biosphere. Concluding this point-by-point analysis, a disturbing diagnosis is delivered: the institutional embodiment of laissez-faire capitalism fully meets the diagnostic criteria of a "psychopath."

http://www.thecorporation.com/...

Actually, I'm a bit suprised you didn't mention this, Hannah...


Gray...a real good add-on post. (0.00 / 0)


Never before in all our history have these forces been so united against one candidate as they stand today. They are unanimous in their hate for me-and I welcome their hatred. - FDR

[ Parent ]
Thx, Gibson. That came instantly into my mind when reading the story. (0.00 / 0)
Because it makes a strong ethical case why we shouldn't treat "judicial persons" in the same way as real people. If they would be real persons, many of them would actually be in jail or in closed institutions, where their second ammendment rights are limited, too!

[ Parent ]
There's A Simple Solution To This... (4.00 / 4)
Corporations originally were chartered for a purpose--to build a bridge, for example.  They were meant to make money, of course. But making money could not be their purpose under law.  Making money could only be a result of fulfilling their purpose--which provides the foundations for an institutional conscience.

Non-profits are still only chartered for a purpose--providing education, for example.  (They, too, can make money as a result of fulfilling their purpose, but it cannot pass to the private hands of owners.)

There's no reason that we couldn't re-instate the requirement that all corporations be chartered for a purpose.  In fact, it would be a far more effective approach to regulation than external restrictions are.

Of course, one can do this at the same time as revoking the pretense of corporate personhood.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
Easy to say it should be done; hard to do in the real world. (0.00 / 0)


[ Parent ]
True, But (0.00 / 0)
There's a lot to be said for conceptual simplicity, as well as for the fact that something's already been done in the past.  

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
Also, fighting for it (4.00 / 3)
is worthwhile in itself.  The norms about what is appropriate for corporations are rooted in this idea. Even if the law did not change, the effort to undermine this idea might change the way people think about corporations.

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.

[ Parent ]
These are the types of issues (stated in the article) that... (0.00 / 0)
...populist progressives should be fighting for, and we are not going to get there with the two major corporate owned political parties.

Regards,

Never before in all our history have these forces been so united against one candidate as they stand today. They are unanimous in their hate for me-and I welcome their hatred. - FDR


What is the law? (4.00 / 2)
I had a friend who was also a lawyer tell me, "The law is whatever people in power agree to. No more. No less."

That applies to the current interpretation of the Constitution and to the corporate oligarchy that continues to rule this country. That is where we are. It began with a vengeance with Reagan and took two generations to reach this point. Even with a global recession and perhaps a global depression to follow, it will take generations to undo.


Maybe Not (4.00 / 2)
As Mike shows in his book, progressive legislation in America tends to come in short, sharp bursts.  A lot gets done in very brief periods of time.  And it's not just legislation.  Watershed progressive changes tend to generate their own momentum.  Getting up to critical mass is the trick.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
End Corporate limited liability (4.00 / 4)
I'm wondering why we grant corporations limited liability for their entire lives.  It makes sense in the early years as a way to spur risk takers to start up companies, but should that protection endure past the start up phase?

What if shareholders could be found financially liable for the behaviour of their companies?  I think this would change the "psychopath" behaviour incentives of corps.  Suddenly "maximizing shareholder value" couldn't be used to do every terrible but profitable thing the Senior Execs dream up.


Also - a corporate death penalty is the only death penalty (4.00 / 4)
I support.  If a corporation becomes an instrument of fraud or criminality, when it becomes a means for conspiracy, it should be ended.  

These ideas would be obvious if we rejected the notion that corporations exist for their own sake - an idea that could not survive being made explicit.

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.


[ Parent ]
Yup. And this doesn't have to come with a loss of jobs. (4.00 / 2)
It could be like cutting down Standard oil or Bell into smaller pieces, with a new structure under new management (in this case even new ownership), and thus seriously reducing their ability to do harm. And this anti-synergy may even produce additional jobs.

[ Parent ]
Wish you had a tip jar. (0.00 / 0)
Great diary, important topic, and desperately needs to be done.  

No, pls, no "tip jar"! That would be so DKos!!! Eek. (4.00 / 2)
Let's add an "importance meter" to blog stories instead! Well, actually, I suggested something like this when Adam asked for ideas about improvements...

[ Parent ]
It would be nice to be able to say thank you (4.00 / 1)
for a job well done.   I'm still hoping that dailykos will return to its sanity once Kos is done with his book and returns to his blog.  The body snatchers invaded, aren't leaving, and aren't doing the place much good.  My opinion, anyway.  

[ Parent ]
I think we need a Constitutional (0.00 / 0)
amendment that puts this issue to rest once and for all. This amendment should state explicitly that corporations are NOT equal to people as outlined in the Constitution. If not, we are going to in ever-increasing hot water as the corps control almost everything now. We need those progressives and populists from the early 20th century for role models in this context.

Why have a constitutional amendment (0.00 / 0)
to say something that is already obvious?  In order to succeed in amending the Constitution, you would need to get widespread agreement on the point.  If you got widespread agreement, than the battle would be won. And because amending is so hard, its easy to brush off the suggestion to do it as unrealistic.

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.

[ Parent ]
I have two thoughts on the paper (4.00 / 1)
First, while I think you all are doing some excellent work at CAC, and highly recommend all these reports, I'd like to see more engagement with Jack Balkin and the Constitution in 2020 crowd. Progressives need to do more than just challenge the history of originalists, they need to challenge that entire edifice - Balkin and the rest are marrying what people find appealing about originalism and living constitutionalism in a way that is coherent and consistent with traditional approaches to constitutionalism. I know CAC is working on substance not just theory, but I think some engagement with those ideas would be very valuable.

Second, the report points to citizenship as the key constitutional value, but I think misses its import.  Personhood is the key value of the 14th Amendment - citizenship for former slaves was the means for ending the idea of second class personhood.  (That was what Dred Scott was all about - former slaves and their descendants were not eligible to be citizens and therefore had no rights. The 14th Amendment flipped that - by granting citizenship broadly and thereby ensuring rights to all persons.  This approach means less difficulty talking our way around rights for non-citizens.

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.


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