Corporate Personhood Is Not the Problem with Citizens United

[xchrom]

http://www.alternet.org/story/155033/corporate_personhood_is_not_the_problem_with_citizens_united_/

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American politics is in trouble. A tsunami of unaccountable, untraceable political money is overwhelming the Republican race for the presidential nomination and threatens to do the same to the fall election. For many people, especially progressives, the culprit is easy to name: the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, which swept away any limits on election-advocacy ads by corporations, unions and “independent” political-action committees (PACs) and issue groups.

Many progressives believe that Citizens United “made corporations people” and that a constitutional amendment restricting “corporate personhood” will cure this political ill. Citizens United is a bad decision. This obvious fact may even be dawning on the Court’s conservative majority, which is taking a surprisingly leisurely look at American Tradition Partnership, Inc. v. Bullock, in which the Montana Supreme Court directly challenged Citizens United, in essence telling the justices that they didn’t understand the first thing about politics. Justices Ruth Bader Ginsburg and Stephen Breyer, dissenters in Citizens United, have publicly stated that American Tradition may offer an opening to limit or even overturn the malign precedent.

But the problem didn’t start with Citizens United and can’t be fixed by a corporate-personhood amendment. The threat to American self-government runs far deeper. It started nearly 40 years ago, when the Court first became involved in campaign-finance cases. Four decades of decisions have allowed the rich and powerful to transform free speech—our most important tool of bottom-up self-government—into a means of top-down social control.

To understand what’s wrong with free-speech doctrine in the 21st century, consider a question put from the bench by Chief Justice John Roberts during oral argument in a case called Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.

[CanonRay]

1. Ending corporate personhood is a necessary first step

to fixing what is wrong in this country. While I agree it is not the whole problem, it is the underlying basis for many of them. Plus, it is an easy issue for low info people to understand. Are corporations people? Of couse not, says your common sense. This is where we have to begin. You cannot begin to tackle everything wrong in this country at one time. Focus on one big, winnable issue, and that is corporate personhood.

[Romulox]

2. A coy defense of the concept of "Corporate Personhood"

But the attack on “corporate personhood” reflects both a misconception of Citizens United and the problem with current First Amendment law. The problem is not that corporations are “persons” under the law. Corporations have always been “persons”—that is and always has been, in fact, the definition of a corporation, a “fictive person” able to own property and enter into legal agreements. Also, the problem is not the idea that corporate “persons” have free-speech rights. Of course they do. The idea that corporations have some of the free-speech rights that people have is essential to important Court decisions like New York Times Co. v. Sullivan (1964) and New York Times Co. v. United States (1971), which removed the threat of government censorship from American media. Nor is the problem the idea that “money is speech” -- the First Amendment would be toothless if government could prohibit anyone from paying to publish thoughts or being paid to publish them.

This is weak evidence to support that headline.

Why is the attack on Corporate Personhood a misguided? That's the question the headline promised to answer, but didn't. I don't consider "they always have," and "of course they do!" to be Constitutional arguments.

[xchrom]

3. it's a little weird -- but i liked that the author went into both what came before

and the strange behavior of the supremes -- roberts in particular.

[Jim Lane]

6. There's nothing coy about citing a specific precedent that would be affected.

New York Times Co. v. Sullivan held that a specific action by the state of Alabama was unconstitutional because it violated the First Amendment rights of a corporation, The New York Times Company. By its terms, however, the First Amendment applies only to federal action. As the author of the linked article points out, the Times v. Sullivan result was possible only because of the Fourteenth Amendment, which forbids the states to “deprive any person of life, liberty, or property, without due process of law.” This language (the Due Process Clause) has been held to incorporate many of the provisions of the federal Bill of Rights and make them applicable to the states.

If the Constitution were to be amended so that The New York Times Company is not a person, then the state of Alabama would be free to pass laws that made it effectively impossible for the Times to publish any criticism of racist government officials.

Furthermore, even aside from incorporation of the Bill of Rights so as to restrict the states, the federal government itself is bound by the Due Process Clause of the Fifth Amendment, which uses the same language ("any person&quot . If a corporation were not a person, then, in 2017, President Palin would be free to issue an executive order confiscating the property of any corporation that had displeased her (The New York Times Company, the Sierra Club, Democratic Underground, LLC). If that were to happen under current constitutional law, the corporation's attorneys would run to court and get the confiscation reversed, probably with an award of attorney's fees because the illegality would be so obvious in light of the Due Process Clause. With an anti-personhood amendment in place, however, Attorney General Taitz would appear in court in support of the government. She would point out that the Due Process Clause protects only a "person" and that the executive order did not take property from any person, only from a corporation.

[Romulox]

8. That's not what "precedent" means.

A "precedent" is a case that is binding rule of law derived from a case that is "on point" (meaning the facts are largely analagous) to a present case, such that the rule in the first case provides a clear guiding rule in the second case.

"Precedent" doesn't mean something that logically "must" follow from a previous precedent. So, the following is an argument, not a "precedent": ("If the Constitution were to be amended so that The New York Times Company is not a person, then the state of Alabama would be free to pass laws that made it effectively impossible for the Times to publish any criticism of racist government officials.&quot

The rest of your argument is called a "litany of horrors". Again, it does not refer to any "precedent". There is a reason these sorts of arguments are NOT being made to the SCOTUS!

[Jim Lane]

10. Sorry, I don't understand your point on the merits.

If the Constitution is amended to eliminate corporate personhood (with the wording that I've seen proposed), then numerous past precedents would be overturned. Many of those precedents, like Times v. Sullivan, are good ones that should be kept.

The serious inquiry should be how to overturn the bad precedent of Citizens United without opening the door to widespread abuse. My argument is that one commonly supported amendment would go way too far and would give state and federal officials extraordinary power to stifle criticism and to play favorites. Your only response is to call that a "litany of horrors" but without explaining why this dire prediction is false (in fact, without even clearly stating that you think it is false).

My opinion is that spending money for a political ad has elements of speech but also elements of conduct. The trick is to impose reasonable regulations on the latter without unduly infringing on the former.

[mmonk]

4. Sure it is. Without it, the legal arguments that their money is a form of free speech rights

could not really be made.

[mythology]

9. The bigger issue is that campaign donations are considered free speech and aren't limited

when the go to PACs. If a corporation could only donate the 5,000 dollar maximum that can be given to an individual politician, split between the primary and general election, they would have a far lower influence then they can now. But look at Newt Gingrich and Rick Santorum who both kept their campaigns going based on billionaire donors to their PACs or at how much the Koch brothers are pledging.

Merely taking away corporate citizenship, which allows for groups of individuals to band together in a business relationship or bring in investors, wouldn't solve the issue of unlimited PAC donations.

[Egalitarian Thug]

5. Both symptoms of the same disease. K&R. n/t

[cali]

7. I don't know of a SINGLE progressive who believes that CU made

corporate personhood people. Not one. Period.

The author's initial premise is just wrong.

[shanen]

11. Put human rights above corporate rights?

Looking for discussions of these topics, but they don't seem to be very active here... This is an old one, but it is most to the point.

My current take (as described in more detail in the thread referenced in the URL) is that we should push for a Constitutional Amendment to put human rights above corporate rights. This may not seem like the most direct response to the problem, but I think it would suffice as a basis to say that corporations should never have GREATER rights than human beings, which is clearly the case now.

http://www.democraticunderground.com/125137926