Friday, January 22, 2010

Corporate Personhood and Political Free Speech

Tin Man KO's Straw Man

By MANUEL GARCIA, Jr.

With a 5-to-4 split decision on the 21st of January, the U.S. Supreme Court ruled "that labor unions and corporations can spend unlimited amounts to influence federal elections, throwing out a ban that had been in effect for 63 years and adding an explosive new element to this year’s midterm elections."

This ruling "dismayed lawmakers and public interest groups that fought for decades to limit the influence of wealthy special interests in politics." But voices for those interests expressed satisfaction with the success of their tactic of arguing against the ban in court on the grounds it was contrary to the First Amendment, because it was government control of free speech in election campaigns.

The new ruling specifically applies to federal elections, however it is certain to be used as the basis of new lawsuits aimed at overturning state laws, which limit corporate spending to influence state and local elections.

Speaking for the court's majority (with Alioto, Roberts, Thomas and Scalia), Justice Anthony Kennedy equated corporate and labor union spending on elections to free speech, which needed constitutional protection: “The censorship we now confront is vast in its reach.’’

The ruling also eviscerates the "McCain-Feingold" election campaign finance reform law of 2002, by removing the ban on corporate and union-sponsored “issue ads’’ in the waning days of a campaign. The court left unchanged the dollar limits for contributions to candidates by individuals and political action committees, preserving a fig leaf of respectability against the appearance of bribery.

Justice John Paul Stevens issued a spirited dissent (joined by Breyer, Ginsburg and Sotomayor), saying the majority had committed a grave error in equating corporate speech to that of human beings: “The difference between selling a vote and selling access is a matter of degree, not kind... and selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.” The definition of paid media as political free speech is corrupted by the inherent disproportion of wealth, people who can invest in media corporations know “that media outlets may seek to influence elections.”

From the perspective of public good, the fatal flaw here is as Justice Stevens acknowledged: “we have long since held that corporations are covered by the First Amendment,” in many prior Supreme Court decisions.

Indeed, the ideal remedy would be federal legislation -- ideally as a constitutional amendment -- defining "personhood" as solely the property of individual living human beings, and specifically not so for any corporate entity. Thus, corporations would be stripped of 1st, 5th and 14th Amendment rights. In brief, these Amendments define:

(1st) freedom of: religion, speech, the press, assembly; and freedom to petition;

(5th) indictments, due process, self-incrimination, double jeopardy, eminent domain;

(14th) citizenship.

The pernicious effect of allowing corporations 1st and 14th Amendment rights -- hence, the right to lobby Congress -- is evident today in the many distortions of government and public institutions to the detriment of the public good: 'pork barrel nation.'

Corporations can often be far wealthier than individual citizens, and thus capable of buying far more power (of any and every kind) to prevail in any contest with a human adversary. Also, corporations can outlive a normal human lifetime, and so have a temporal advantage over actual humans: corporations can use delay till a human contender's money is spent, or life expended. Of course, the best insurance for corporations is to use the wealth invested in them, and their possibly superhuman lifetimes, to acquire dominating political influence so as to shape the government and the laws to their particular economic advantage.

Corporations combine superhuman attributes for potential wealth accumulation and longevity, with the subhuman attribute of lacking an immediately responsible actor to be held accountable for the consequences of corporate actions. This combination is an affront to the very concept we actual human "persons" have of our individual selves, and it should not be equated with human reality in the laws devised to regulate human society.

People have human rights and they have property rights, but property itself has no rights; it is by definition not-human (the 13th Amendment abolishes slavery and involuntary servitude, except as punishment for crime; property is stuff and livestock). People can form private clubs of pooled property -- corporations -- because these are profitable ways of engaging in commerce. But, by bending law to debase the definition of a human being so as to bestow "personhood" on pooled property clubs, we dehumanize society:

-- by allowing inhuman combines with superhuman attributes to overpower the interests of many individual people; and

-- by bestowing an often complete immunity from the hazard of personal responsibility, to the humans directing and profiting from corporate actions.

In brief: people have rights and property does not; and accumulated property does not shield the individual from responsibility for the consequences of their acts.

We take each of these principles to disqualify corporations from legal consideration as "persons." Let the living and breathing persons in corporations carry what personhood is claimed for such entities, and let those corporate people equally well carry the accountability that each and every other individual in the nation's public shoulders as their defining social responsibility.

The Supreme Court justices promoting this decision knew exactly what they were doing, and why. Behind the display of magisterial solemnity and jurisprudential weight, these justices know -- deep down -- they are just elements of a much larger machine, they are only where they are because of who they really serve.

“When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought,” Justice Kennedy wrote. “This is unlawful. The First Amendment confirms the freedom to think for ourselves.”

Indeed, with corporations now freed from restraints on their propaganda spending and lobbying, the sanctity of their 'personhood' protected by the First Amendment, we can certainly expect the floodgates of censorship to burst, allowing a torrent of accurate, diverse and trustworthy information to wash away all trace of control on personal thought and public discourse, and to enhance the actual people's "freedom to think for ourselves."

Manuel Garcia, Jr., a former physicist at Lawrence Livermore Nuclear Laboratory, can be reached at mango@idiom.com

The Trouble with Corporate Personhood

The Trouble with Corporate Personhood
Freedom of Speech for a Fiction
By CHRISTOPHER KETCHAM

I often correspond with a long-time Washington DC operator named Leigh Ratiner, who spent 40 years in government, serving under Presidents Kennedy, Johnson, Nixon, Ford and Reagan, with cabinet-level posts in the Defense Department, under the Secretary of the Interior, in the Department of Energy, and in the State Department.

Usually I’m prompted to contact him while investigating this or that instance of criminality or stupidity in the federal government. We’re in conversation a lot. “Chris, no disrespect intended,” Leigh once wrote, “but I'm not sure yet that you truly understand how profoundly corrupt the government really is.

Lying, perjury, devious deception, law breaking have been a constant pattern in the American government for several decades and have driven us to the point where it has become impossible for an intelligent person to trust the government.” Leigh sometimes goes on for pages like this.

In the annals of lying and devious deception we can now add what will hopefully be remembered as one of the foulest decisions – but not a surprising one – by the Supreme Court to be imposed on the American public, namely the majority opinion in Citizens United vs. the Federal Election Commission.

I’ll let the New York Times summarize: “Corporations have been unleashed from the longstanding ban against their spending directly on political campaigns and will be free to spend as much money as they want to elect and defeat candidates.
If a member of Congress tries to stand up to a wealthy special interest, its lobbyists can credibly threaten: We’ll spend whatever it takes to defeat you.”

Or, better yet, as Leigh Ratiner puts it: “Obama’s failures amount to a thimble of sugar compared to this decision, which is equivalent to a truckload of oil barrels filled with rat poison.
The spending limits the court overturned were the unlimited sums of money that Lockheed, Boeing or Bank of America can take out of the corporate treasury and give to NBC in exchange for a two minute spot attacking a candidate without the stockholders’ permission. This is gigantic.”

Par for the course in the dying republic, where judges with the regularity of sun-up defend corporate interests against the public interest.
But what’s compelling here is that the decision hinges on another longstanding idea, which is that corporations have the rights of living breathing people.

The Supreme Court claims in this matter to be defending the corporate right of free speech.
The laws of corporate personhood go back to the 1860s, in decisions offered by judges with close ties to the very corporations whose rights they were asked to judge.
Corporate citizens, needless to say, have been a plague upon the land ever since (Joel Bakan, the law professor, has correctly observed that corporate citizenship often accords with sociopathic behavior, the kind of behavior that as a society we do not tolerate from individuals).

In any case, corporate freedom is not a constitutional right, and corporations do not very much care about freedom of speech, press or assembly as it involves the individual.
What a corporation cares about it is its collective endeavor.
To provide a collectivist institution with the rights of the individual, to announce a corporation as a citizen, is one of those wonderful juridical inventions that could only be taken seriously in a system where law is exploited to veil reality and to render lies as truth.

As Leigh Ratiner notes, no intelligent person can trust such a system.
And as regards “corporate persons,” Ratiner asks the right question: “If they are natural citizens and commit crimes, why don't we liquidate them as punishment (since they can’t be put in jail)?
Of course, the answer is that if you liquidate them it will hurt the economy and the innocent shareholders. But doesn’t that make it very clear that a corporation is not a person who can be put in a cage or hung by the neck until dead? That’s the kind of person the Founders were trying to protect.”

Right…so, for example, I can’t take a corporation out in the backyard and bury it alive.
I can’t smack a corporation flat across the face and break its nose.
I can’t take a corporation’s head and split it with an axe, nor can I chop off all its fingers, nor stab out its eyes with a rusty screwdriver, nor burn off its flesh with a blowtorch, nor flay it with an electric sander, nor stomp its kneecaps with a sledgehammer, nor cut its head off and parade it around the room on a broomstick, nor use its entrails as a rappel rope, nor smash its testicles with a spiked bat, nor do any of the things that really should be done to corporations these days – if they were people – but which one would never do to a human being.
If only corporate persons would finally show their fleshy faces.

Christopher Ketcham, a freelance writer in Brooklyn, NY, is writing a book about secessionist groups in the US. You can write him at cketcham99@mindspring.com.

If Corporations Were Human

If Corporations Were Human
by Scott Klinger
Yesterday's Supreme Court decision in the Citizens United case removes all limits on large corporations to finance and influence federal elections.
In its ruling the Court reverse a decades old ruling barring companies from using their general funds to fund political campaign, and guts pieces of the popular McCain-Feingold campaign finance legislation.

In so doing the Court implicitly embraces a 125 year-old precedent in the case of Santa Clara v. Santa Fe, where the Court first developed the legal doctrine of corporate personhood, explicitly granting corporations the same political and civil rights granted to human beings.
Our nation's founders would be shocked to learn that their revolution had resulted in non-human entities like corporations being endowed with the same hard fought rights secured for citizens.

But what if we accept corporate personhood as the current reality and instead focus on changing the rules such that corporations would also have to be bound by other limitations of humanity? How would corporations be different if they were indeed human-like?

If corporations were human, they would pause for sleep and recreation.

When human families vacation, they frequently go to parks or natural places which they inherently recognize as part of the commons set apart from the marketplace. Many corporations know no such bounds; if resources are available, even in the nation's National Parks, they will seek to develop them.

Today's modern corporations are 24/7 affairs, that are always charging forward.
The press for continuous growth and the need to deliver the next quarter's earnings, make corporation's urgency and intensity toward time a threat to many communities, which have other priorities like caring for children and elders, not the tireless quest to produce more profit.

If corporations were human, they would acknowledge their dependence on a healthy community for their well-being and contribute financially to the vibrancy of the community through payment of taxes.

Fifty years ago, corporate taxes made up nearly 22% of the federal treasury receipts, today corporate taxes contribute less than 13% to the Federal budget.
The mindset of many large corporations is that of takers, looking to be supported by society with a stream of tax credits and preferential tax rates.
According to a 2008 report by the Government Accounting Office, 25% of large US corporations paid no Federal income taxes in 2005 (the latest year studied) despite reporting collective sales exceeding $1.1 trillion.

If corporations were human, they would recognize that their brains are only one of many vital organs.

The brain, which provides the executive function for the body whole, nonetheless consumes a relatively modest share of the body's nutrition.
A brain which swells beyond a normal healthy state is a dire threat to the body and most often requires the dramatic intervention of surgery.
Inhuman corporations provide ever larger amount of nutrition in the form of money to its executive function.
These swollen levels of pay are a cancer that often results in excessive risk, putting both the corporation and society at risk.

If corporations were human, they would be accountable to society when they break the law and would be punished with a loss of their freedoms.

When a person steals or murders, they are sent to prison, where they lose their freedom to practice their trade, and to participate in the economic and political life of the community.
When corporations produce products they know to be deadly, or withhold important information on the safety of their products are they not guilty of murder?
When corporations submit fraudulent financial statements to investors, or engage in deceptive marketing practices that cost people their homes or their life savings, are they not guilty of felonious theft?
Shouldn't corporate criminals, particularly repeat offenders, be denied their freedom to practice business and have their license revoked?

If corporations were human, they would one day die.

Unlike the finitude of human life, modern corporations can live forever under the law, growing in size and gaining political and economic power generation after generation.
It was not always so. When our nation was young, people recognized both the good things that business contributed but also the risks of concentrating too much power in the hands of businesses.
Business charters were granted for a set period of time, commonly a generation, after which time the businesses would be dissolved.
While businesses could still prosper and grow to have influence, they were kept from becoming too big to fail, where their size alone was a threat to the social order.

Corporations can't have it both ways - insisting upon the political and civil rights guaranteed human rights under the Constitution, while at the same time refusing to live within the constraints of human life in terms of longevity, size, accountability and support of the communities which grant them their existence.

Scott Klinger is an Associate Fellow at the Institute for Policy Studies. He may be reached at scottklinger@earthlink.net.