Corporations: They Don’t Look Like a Person to Me

The 2010 Supreme Court decision in the case known as Citizen’s United, who were the appellants, changed the American political landscape for many elections to come if it remains the legal last word. In this decision, the Supreme Court contends that since a corporation is considered a person under the law, they have a First Amendment Right to freedom of speech, about which a precedent had already been established. The use of money in political campaigns had already been determined to be a form of speech protected by the First Amendment. Thus, they argued, inability to spend as much money as they want to on political issues can not be limited. This argument carried with Justice Anthony Kennedy writing the majority opinion.

I was very skeptical about this idea that a corporation is considered a person under the law. It seems to fly in the face of logic and common sense. Well, many legal concepts in fact do seem illogical and off the wall. So, I decided to investigate this further. How did this concept of corporate personhood get into the sensible legal system of the USA?

Beginning this project, I thought I would be searching through thick legal volumes to find out the details. Luckily for me/us Women's International League for Peace and Freedom has done a good deed by developing Timeline of Personhood Rights and Powers.

In this synopsis of Supreme Court decisions concerning Corporate personhood, we find that the Supreme Court reversed prior opinions in 1886 to rule as follows:

Santa Clara County v. Southern Pacific Railroad (1886)
“The court does not wish to hear argument on the question whether the provision in the 14th Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to corporations. We are all of the opinion that it does.” This statement by the Supreme Court before the hearing began gave corporations inclusion in the word “person” in the 14th Amendment to the Constitution and claim to equal protection under law. (The case was decided on other grounds.) (Emphasis mine) (Jan Edwards et al:  Timeline of Personhood Rights and Powers, 6/2002,)

Reading this statement carefully the phrase “gave corporations inclusion” from here on is used as the basis for all other decisions with regard to the corporation’s Constitutional standing. There follow many decisions which expand on this basic principle. Next it was to allow corporations due process as well as equal protections, (1889). In 1890, The Taft Hartley Anti-Trust Bill  declares corporations as persons.

The Court decisions enlarge upon the rights of corporations to include rights of the 4th Amendment concerning protections from warrentless search and seizures and 6th amendment rights for criminal trials by jury. In 1922,

Pennsylvania Coal Co. v. Mahon (1922)
Corporations get 5th Amendment “takings clause”: “. . .nor shall private property be taken for public use, without just compensation.” A regulation is deemed a takings.  (Emphasis mine) (Jan Edwards et al)

This I find particularly interesting, that regulations are deemed a taking that requires some compensation. 

Thus, more and more rights are attributed to the corporation. In 1976, the court ruled that political money is equivalent to speech. This ruling expanded the First Amendment protections to include financial contributions to candidates or parties (Jan Edwards et al) In 1990, in Austin v Michigan Chamber of Commerce the court upholds limitations on corporate spending in candidate elections (Jan Edwards et al). It is this law the Citizens’ United ruling reverses as well as the  Bipartisan Campaign Reform Act of 2002 (BCRA) which reasoning follows the Austin precedent.

So, what the Supreme Court (SC) ruling speaks to is that there is a discrepancy in how the BCRA is applied. In the BCRA law, media companies are excluded from the restrictions of this law. Among other issues, the SC felt that all the possible harms that are possible for other corporations apply to media companies also. Thus the reasoning for the expenditure restrictions are not applied equally, therefore the BCRA law is unconstitutional. In addition, in that the earlier ruling of the SC in Austin provided the same inadequate rationale for corporate expenditure limits, that ruling was reversed in the Citizen’s United decision.

So, that explains rather simplistically how we arrived to where today a fictional “person” can spend as much money as they desire to influence elections. However, the restrictions on the amount of money that corporations can provide directly to a candidate’s campaign were upheld as reasoning from the government’s side because direct contributions could become corrupting to the campaign process.

Is this the end of the road as far as campaign finance restrictions by corporations and unions are concerned? There is a grass roots effort trying to emerge which will be to work toward a constitutional amendment to the US Constitution to declare that corporations cannot be considered to be “persons.”

Unfortunately, one of the problems with attempting to understand both sides of an issue is that you see both sides of the issue. There will have to be extensive limitations to the ability of government to disallow the corporation this designation. Through this artifice, the corporations have achieved a substantial body of rights and protections that carry significant precedents. If the amendment isn’t precisely written as to what corporations are or not allowed to spend money on, there will be efforts after the fact to attempt to circumvent the challenge that such a loss of political influence would have on them.