Academic journal article Constitutional Commentary

In Defense of Corporate Persons

Academic journal article Constitutional Commentary

In Defense of Corporate Persons

Article excerpt

Corporate personhood is getting a bad name.

Following the Supreme Court's 2010 ruling in Citizens United v. Federal Election Commission (1) protecting the First Amendment rights of corporations to spend money in elections, the nation has seen two trends of interest. First, we are experiencing an explosion in the amount of outside spending in elections, with so-called "independent" expenditures in elections going up significantly--from less than $150 million in the 2008 election cycle to over $1 billion in 2012. (2) Even greater increases appear on the horizon. (3) Second, we have seen the development of a broad-gauged movement to overturn the decision by way of constitutional amendment. These proposals range from relatively limited and contained grants of Congressional authority to regulate campaign finance to broad attacks on what proponents call corporate "personhood." (4)

While there is honest disagreement about the causal relationship between the Court's decision in Citizen United and the increase in independent expenditures, (5) there is no dispute about the causal link between Citizens United and the increased political focus on corporate personhood. President Obama criticized the decision in his 2010 State of the Union address, with members of the Court looking on, and continued the critique during his 2012 reelection campaign. After Mitt Romney served up the issue by asserting on the stump that "Corporations are people, my friend," Obama responded by declaring "I don't care how many times you try to explain it, corporations aren't people. People are people." During the 2014 mid-terms, Sen. Elizabeth Warren kept the issue fresh as she barnstormed the country to rally the faithful. According to the Washington Post, her most dependable applause line in her stump speech was "Corporations are not people!" (6)

The opposition to corporate personhood has not just been the stuff of speeches. A number of advocacy groups have either sprung up to fight corporate personhood or rebranded themselves by newly taking aim at it. Most of these groups oppose the right of corporations to assert any First Amendment speech rights, and some have gone further, calling for disabusing all corporations or businesses of any constitutional right. Common Cause, for example, uses former Secretary of Labor Robert Reich to tout its support for "a constitutional amendment declaring that 'Only People are People' and that only people should have free speech rights protected by the Constitution." (7) Public Citizen, the liberal litigation group founded by Ralph Nader, argues that "rights protected by the Constitution were intended for natural people." (8) Free Speech for People, one of the groups most influential in the anti-personhood movement, is pushing a "People's Rights Amendment" (the "PRA") declaring that "the rights protected by this Constitution" are "the rights of natural persons." (9) Under the PRA, "corporate entities" would be "subject to regulations as the people ... deem reasonable." Corporations, that is, would not be able to claim any constitutional right. (10) A version of the PRA was sponsored in the last Congress by Senator Jon Tester of Montana and Congressman Jim McGovern of Massachusetts. It would declare that "the rights protected by this Constitution" are "the rights of natural persons." By their count, sixteen states and nearly 600 localities have endorsed some kind of anti-personhood amendment. (11) Moreover, the movement against corporate personhood has benefitted from the intellectual heft offered by a number of prominent legal scholars, including several speaking at the conference that engendered this series of essays. (12) In a moment when the progressive left seems listless, this movement has genuine energy.

This essay is a critique of this attack on corporate personhood. I will explain that the corporate separateness-- corporate "personhood"--is an important legal principle as a matter of corporate law. …

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