Monday, January 25, 2010

We the Corporate People

The Supreme Court's decision in Citizens United v. FEC handed a victory over to corporations that they have been pursuing for over a century. In a 5-4 decision the court found that corporations and unions can spend unlimited amounts of money to influence national, state and local elections. Of course, unions can only generate revenue from the collection of dues from its members while corporations exist solely to generate revenue and profit.

The decision was only possible due to an earlier decision, by the same body, that money is a form of free speech, further disadvantaging the poor. However, the damage of this latest decision goes far deeper than is visible on the surface. With their newly granted power, corporations have the ability the hold the power forever and to crush anyone that attempts to limit or reverse it by purchasing the election of friendly candidates.

Worse is the fact that most corporations have become global in their makeup and often do business and even partner with countries that do not have this country's best interest at heart. In fact, due to the ability of international corporations to shield their identities when doing business globally it is possible for enemies of our country to be able to influence our elections because of the court's decision.

More disappointing regarding the decision is those who are in agreement with it. I was shocked to hear Jonathan Turley, Law professor at George Washington University, agreed with the court's decision as well as Glenn Greenwald who defended the decision in his blog at Finally, the ACLU will not take a position in opposition to the Supreme Court's attack on US elections.

I have strong feelings about this issue and believe it must be addressed in the strongest terms. Primarily, I believe the foundation of the court's decision is their recognition of corporations as people. Corporations had attempted for years to persuade the Supreme Court to recognize them as a person and extend to them the rights enumerated under the 14th amendment which came into existence after the Civil War to address the newly freed slave population. At the time one of the largest corporations was the railroad which was using its money and power to influence elected officials and push for beneficial legislation in Congress. However, they had been unsuccessful in convincing the Justices, so the railroad brought a steady stream of cases to the Supreme Court claiming the rights of a person under the Constitution in hopes of wearing them down.

From Wikipedia:

The 1886 case of Santa Clara County v. Southern Pacific Railroad, though it dealt with taxation of railroad properties, became most notable for the obiter
dictum statement that corporations are entitled to protection under the
Fourteenth Amendment. Obiter Dicta are the head notes preceding every case, a
short summary in which a court reporter summarizes the opinion as well as
outlining the main facts and arguments. The court reporter, J.C. Bancroft Davis,
wrote the following as part of the headnote for the case:

"The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any
person within its jurisdiction the equal protection of the laws, applies to
these corporations. We are all of the opinion that it does."

In other words, corporations enjoyed the same rights under the Fourteenth Amendment as did natural persons. However, this issue is absent from the court's opinion

Before publication in United States Reports, Davis wrote a letter to Chief Justice Morrison Waite, dated May 26, 1886, to make sure his headnote was correct:

Dear Chief Justice, I have a memorandum in the California Cases Santa Clara County v. Southern Pacific &c As follows. In opening the Court stated that it did not wish to hear argument on the question whether the Fourteenth Amendment applies to such corporations as are parties in these suits. All the Judges were of the opinion that it does.

Waite replied:

I think your mem. in the California Railroad Tax cases expresses with sufficient accuracy what was said before the argument began. I leave it with you to determine whether anything need be said about it in the report inasmuch as we avoided meeting the constitutional question in the decision.

C. Peter Magrath, who discovered the exchange while researching Morrison C. Waite: The Triumph of Character, writes "In other words, to the Reporter fell the decision which enshrined the declaration in the United States Reports...had Davis left it out, Santa Clara County v. Southern Pac[ific] R[ailroad] Co. would have been lost to history among thousands of uninteresting tax cases."

Author Jack Beatty wrote about the lingering questions as to how the reporter's note reflected a quotation that was absent from the opinion itself.

Why did the chief justice issue his dictum? Why did he leave it up to Davis to include it in the headnotes? After Waite told him that the Court 'avoided' the issue of corporate personhood, why did Davis include it? Why, indeed, did he begin his headnote with it? The opinion made plain that the Court did not decide the corporate personality issue and the subsidiary equal protection issue

In answer to the question posed above, also from Wikipedia:

John Chandler Bancroft Davis (December 22, 1822 – December 27, 1907), commonly known as Bancroft Davis, was an American lawyer, judge, diplomat, and president of Newburgh and New York Railway Company!

Because of the Santa Clara case corporations have argued numerous cases before the court claiming Davis' head note as legal precedent and have been mostly successful in gaining greater recognition as a person with Constitutional protections. But, until Chief Justice Roberts, the high court refused to overturn 125 years of legislation limiting a corporation's ability to unfairly influence elections with their vast financial resources.

In Glenn Greenwalds comment section to his post about the Supreme Court’s decision, he asked one commenter the following questions:

So I'll ask again -- of you and anyone who claims that since corporations are not persons, they have no rights under the Constitution:

1. Do you believe the FBI has the right to enter and search the offices of the ACLU without probable cause or warrants, and seize whatever they want?

2. Do they have the right to do that to the offices of labor unions?

3. How about your local business on the corner which is incorporated?

The only thing stopping them from doing this is the Fourth Amendment. If you believe that corporations have no constitutional rights because they're not persons, what possible objections could you voice if Congress empowered the FBI to do these things?

4. Can they seize the property (the buildings and cars and bank accounts) of those entities without due process or just compensation? If you believe that corporations have no Constitutional rights, what possible constitutional objections could you have to such laws and actions?

5. Could Congress pass a law tomorrow providing that any corporation - including non-profit advocacy groups -- which criticize American wars shall be fined $100,000 for each criticism? What possible constitutional objection could you have to that?

Thought provoking as they seem each question assumes a premise which may be faulty. At the time of the writing of the Constitution and the Bill of Rights the existence of corporations was nearly non-existent. The founders were not concerned with granting rights to anyone except the citizens of this brand new nation and they certainly did not want to open this newly formed government to the corrupting influence of British wealth concentrated in businesses like the East India Company. You'll remember this company from one of their many products they were forcing the colonies to buy exclusively from them and enforced by the King. The product was tea and the result of that action was the impromptu flavoring of Boston Harbor. In fact, the founders warned of the danger of allowing the concentration of powers in large companies because of the abuses they witnessed at the hands of companies like the East India Company and others.

Since the decision the President and Congress have discussed how they can limit the damage of the Supreme Court's irresponsible action, but they are only attempting to alleviate the harm in very peripheral ways. Until and unless they pass legislation specifically recognizing that a corporation is NOT a person and does not have the same rights as citizens the relentless assault on democracy by the excessively privileged corporate elite will not cease.

Currently, the Republicans and their big business lobbyists are fighting to block the creation of a department of consumer protection while corporations themselves have a position in the president's inner circle at a cabinet level position known as the department of Commerce. Why is that?

The Constitution opens with the sentence "We the People", not “We the Corporation” and establishes the laws and liberties our new democracy was founded upon. That’s why “We the People” need a department of consumer protection and we do not need a department of commerce. In fact, “We the People” should insist on a separation of commerce and state the same way religion is (or used to be) banned from the working of government.

1 comment:

Anonymous said...

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