The Corporate Person and Democratic Politics

By Gerencser, Steven | Political Research Quarterly, December 2005 | Go to article overview

The Corporate Person and Democratic Politics


Gerencser, Steven, Political Research Quarterly


This essay considers the political rights of corporations, as vested in their claim to legal personhood, and the complications such rights present to theories of democracy. While corporate personhood has generated significant debate in the field of jurisprudence, it has gone largely unnoticed in democratic theory. This article first highlights significant features in the legal theory and standing of corporate personhood. It then critically considers how well one significant current approach to democratic theory, deliberative democracy, is situated to handle corporations as entities with political rights. The essay closes by arguing that the collision between legal practices that recognize political rights of persons that may not be human individuals and political theories that presume individual human beings as the primary political subjects reveals the need for a broader conception of agency in democratic theory. Such a conception of agency would, by freeing itself of simple assumptions of human subjectivity, be more attuned to various types of inequality of power that frustrate democratic decisionmaking.

The New York Times "OpEd" page on March 13, 2003, had a familiar look to it, the sort of page layout you could encounter on almost any day in the Times. That day had a column by William Safire complaining about the French and one by Bob Herbert bemoaning the plight of the Iraqi children if a war were to come; there was also a guest commentary by Jim Gogek titled "Taxing the Binge" on alcohol consumption taxes and one by Reuel Marc Gerecht titled "Iran Plays the Waiting Game." Taking up the lower left quarter of the page was one more opinion piece titled, "Teaming up for Digital Rights," arguing against the need for the government to take up legislation mandating copy protection hardware and software in DVD players, recorders, and the like. The author argues that such a "mandate would be costly and ineffective" and further it "would hobble consumers' lawful use of technology and stifle innovations." Citing the progress that various industry groups have already achieved, the author praises how "they agreed that government mandates on how technology must work are not practical and not in the best interests of the consumers or businesses."1 Yet, while this piece looks pretty much like the commentaries around it, this bit of opinion was a paid advertisement containing a commentary whose author was that great political thinker, Microsoft. This is not an unfamiliar feature for the Times OpEd page; some days in that spot there are paid-for commentaries by ExxonMobil, other days by TomPaine.Com, the Anti-Defamation League, and the Washington Legal Foundation among many others. This type of paid opinion piece raises a number of interesting topics for the ethics of journalism regarding, for instance, the appropriateness of placing advocacy advertising next to editorial content. 1 pose related but different questions. Put bluntly, what is this and by whom? It is not a traditional product advertisement: Microsoft is not here telling readers to adopt its new MSN 8. Advertising the advantages of its product is what Pacific Life did on the same day on bottom left of the editorial page in the Wall Street journal, touting its "commitment to your privacy," noting how "we don't sell information about our clients to anyone," and so forth.2 Microsoft may be hoping to develop its corporate image, but it is not doing it with scenes of hip and happy computer users who have switched from Apple or avoided Linux. Rather, if Microsoft is trying to develop and maintain an image, it attempts to do so by taking part in a public discussion about "how best to respond to difficult policy challenges posed by digital piracy," and offering , its ideas for how "the digital economy can flourish."3 It is attempting to affect policy by providing public reasons for its positions to a public whose opinions it cares about; Microsoft, in the words of Joshua Cohen, "aim[s] to defend and criticize institutions and programs in terms of considerations others have reason to accept, given the fact of reasonable pluralism and the assumption that those others are reasonable" (Cohen 1996: 100). …

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