by Jane Anne Morris
(Editor’s note: The author wrote this article late in 2009 in anticipation of exactly the decision handed down yesterday by the Supreme Court in the case of Citizens United v FEC, a decision that some are calling the “mirror-image” of the Dred Scott decision of 1857. She has written extensively about the Supreme Court in her most recent book, “Gaveling Down the Rabble,” and is currently working on a new article about it that, she tells me, is an “indirect criticism of this case, but not a direct analysis.”)
When the “Hillary Clinton film” case is decided, headlines should declare, “Supreme Court affirms corporate personhood.” Instead, most media will call it a free speech decision. “First Amendment rights” will play the Trojan horse hauling corporate freight.
By first putting human beings and corporations into one basket labeled “things that have constitutional rights,” and then arguing about what “free speech” means, the Supreme Court has pitted the likes of the American Civil Liberties Union against advocates of campaign finance reform.
In one corner, arguing against limits on “speech,” we find Citizens United Inc. (the right-wing, nonprofit corporation that produced the Hillary film), supported by the ACLU. In the opposite corner, arguing FOR limits on “speech,” the Federal Election Commission and an assortment of groups supporting campaign finance laws.
Must we limit speech in order to have free and fair elections? Or must we accept corporation-dominated political debate in order to preserve free speech?
This false dilemma disappears if we reject corporate personhood – the idea that corporations have constitutional rights. Limiting corporate “speech” is not a constitutional infringement if corporations are not “persons” under the Constitution.
Corporate personhood encourages people to forget that every corporation is literally created by legislatures. Corporations of all kinds receive grants of power and privilege from the state; that’s why they incorporate. In the Citizens United Inc. case, the Clements amicus brief (on the FEC side) asks, “If the people’s elected representatives create legal structures for economic, charitable or other purposes, are they barred from preventing misuse of those structures for non-permitted purposes, such as political activity?”
Admitting the legal fiction of the corporation into the “rights” club has further consequences. With human beings and corporations joined at the hip in the body of constitutional law, the fruit of each people’s victory in strengthening or claiming a constitutional right is plucked up by corporate lawyers and used to defend corporations against the governments that created them.
That has been happening since the late 19th century, when the Supreme Court awarded the granddaddy of all corporate constitutional rights (equal protection and due process under the 14th Amendment) to railroad corporations.
In a famous Supreme Court dissent (1938), Justice Hugo Black ridiculed the justices’ grant of corporate personhood, and recounted the real function of the 14th Amendment during the first half-century after its adoption. Hint: It had little to do with protecting the rights of African-Americans, women or Native Americans.
Among Supreme Court cases about the 1868 amendment, Black wrote, “Less than one-half of 1 percent invoked it in protection of the Negro race, and more than 50 percent asked that its benefits be extended to corporations.” With corporations on the personhood wagon, rights that we think are protecting human beings are instead protecting corporations against the government.
In the current case, the biggest hope for some and fear for others is that the court will overrule Austin v. Michigan Chamber of Commerce, a 1990 case that preserved a scrap of state power to regulate corporate “political speech.” The widely touted “victory” was that the Supreme Court allowed Michigan to prohibit one kind of nonprofit corporation from using its monies for certain kinds of political speech.
Meanwhile, the Austin case accepts that money equals speech (following the Supreme Court’s 1976 Valeo decision), that corporations can spend treasury funds on initiatives and referendums, and that political action committees are legal and constitutional. But there’s more. Austin affirms that corporations are “persons” with constitutional rights, and that they have First Amendment rights, and equal protection rights.
Despite the hype and flutter around it, Citizens United Inc. v. FEC is not the big showdown about campaign finance reform. Whether the Supreme Court upholds the FEC and the Michigan law, or favors Citizens United Inc. and overrules Austin, corporate personhood will have won again.
Just as the single-payer option has been suppressed in the national health care debate, corporate personhood is all but ignored in discussions of campaign finance reform. Perhaps if “corporate personhood” made it into more headlines, we could shoo it out of the Trojan horse where it has obfuscated free speech and equal rights issues for too long.
Corporate anthropologist and Madison, Wisconsin resident Jane Anne Morris’ recent book, “Gaveling Down the Rabble: How ‘Free Trade’ Is Stealing Our Democracy” (Apex Press, 2008) is cited in an amicus brief filed in support of the Federal Election Commission in this case.