Magazine article The Washington Monthly

Let Us Now Praise Corporate Persons: Citizens United Was a Bad Decision; but the Cry of "Corporations Are Not People!" Isn't Helping Fix the Problem-In Fact, Its Making It Worse

Magazine article The Washington Monthly

Let Us Now Praise Corporate Persons: Citizens United Was a Bad Decision; but the Cry of "Corporations Are Not People!" Isn't Helping Fix the Problem-In Fact, Its Making It Worse

Article excerpt

The American left is notoriously fractious. But one belief that unites more than most is this: corporations are not people. "Corporations are people, my friend," said Mitt Romney in 2012, and Democrats skewered his cluelessness. "I don't care how many times you try to explain it," Barack Obama said on the stump. "Corporations aren't people. People are people." During the 2014 midterms, Massachusetts Democratic Senator Elizabeth Warren barnstormed the country to rally the faithful. Her most dependable applause line? "Corporations are not people!"

The main target of the corporations-are-not-people crowd is the Supreme Court's 2010 Citizens United ruling striking down limits on independent corporate spending in elections. After that case, groups sprang up to fight corporate personhood. Others rebranded themselves by newly taking aim at it. But they do not limit themselves to attacking the Court's campaign finance jurisprudence. Most groups make a broader attack on corporations being able to assert any First Amendment speech rights at all; and some have called for disabusing all corporations or businesses of any constitutional right.

Common Cause, for example, uses 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." Public Citizen, the liberal litigation group founded by Ralph Nader, argues that "rights protected by the Constitution were intended for natural people." Free Speech for People, one of the groups most influential in the anti-personhood movement, is pushing a "People's Rights Amendment." A version has already been sponsored in the U.S. Senate by Jon Tester of Montana and in the House by Jim McGovern of Massachusetts. It would declare that "the rights protected by this Constitution" are "the rights of natural persons." A range of liberal groups have signed on to the anti-personhood project--MoveOn, Sierra Club and NAACP chapters, and steelworker and SEIU locals. By their count, sixteen states and nearly 600 localities have endorsed some kind of anti-personhood amendment. Even in a moment when the progressive left seems otherwise to be fighting rearguard actions, this movement has genuine energy.

These are my people. Many of the leaders of this movement are friends and respected colleagues. I contributed to Elizabeth Warren's senatorial campaign and voted for Reich when he ran for governor of Massachusetts. Forty years ago, my coal miner grandfather sat me down and told me how a union had saved his life. As a law professor, I have spent my career as an oddity--a progressive who teaches corporate law, almost always the most liberal person in any room of business law academics. A decade ago, I came up with a novel legal theory that shareholder activists recently put to good use suing the Hershey Company over the use of child labor in West African chocolate cultivation.

A corporate lickspittle I'm not.

But the attack on corporate personhood is a mistake. And it may, ironically, be playing into the hands of the financial and managerial elite.

What's the best way to control corporate power? More corporate personhood, not less.

If you're shopping for glue sticks or glitter and hearing Christian music over a loudspeaker, you're probably in a Hobby Lobby store. An arts-and-crafts retailer, Hobby Lobby is a big company, with upwards of 20,000 employees and more than 600 stores. But it's a "closely held" corporation--meaning its stock is not publicly traded. The stock is owned by members of one family, the Greens of Oklahoma City, who are devout Christians. As enacted, the Affordable Care Act contained a provision requiring the company to provide its employees with health insurance that includes all medically approved forms of contraceptive care. The Greens objected. They believe that four of those methods are "abortifacients," and claimed that the coverage mandate violated their rights under the Religious Freedom Restoration Act. …

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