While I agree with the spirit of Sue Kirchmyer’s Sunday IR op-ed, a constitutional amendment to “end corporate personhood rights” as she proposes, may very well not “preserve our authority to protect our state and nation,” “end money as speech” or enable Montana and other states to retake their ability to control election spending and campaign finance.
Ms. Kirchmyer refers to US Supreme Court’s decisions in Citizens United and other cases which, over the last 150 years, have allowed corporations and other legal entities to acquire constitutional rights that were originally intended for humans. That is basically correct–as far as it goes. In fact, all corporation constitutional rights were created by the Supreme Court—no such rights exist in the text of federal constitution.
But here’s the problem. As UCLA law professor Adam Winkler points out in his book, We the Corporations, How American Businesses Won Their Civil Rights, not once in the Court’s Citizens United opinion is corporate personhood even mentioned. Not once are corporations referred to as persons or people. Indeed, nothing in the opinion turned on the legal theory of corporate personhood. The idea that a corporation is an entity with rights and obligations separate and distinct from its members is entirely missing from the opinion.
While, as Ms. Kirchmyer argues, the Court afforded broad free speech rights to corporations, it was not because corporations are persons or people. Instead, like many of its earlier corporate rights cases, Citizens United was grounded in a sort of “piercing the corporate veil” theory—(not the “alter ego” concept of piercing the corporate veil that practicing lawyers are familiar with).
Rather, the Citizens United Court simply obscured or looked through the legal entity or “personhood” status of the corporation and, instead, emphasized the political speech rights of others such as shareholders and listeners. In fact, Citizens United, the corporation, was described as an association [of people] that had taken corporate form. Justice Kennedy, the author of Citizens United, emphasized that the First Amendment prohibited Congress from fining or jailing citizens or associations of citizens for simply engaging in political speech.
In treating corporations this way, the Court echoed its centuries-old acknowledgement that corporations are merely a collection of men (and, now, presumably women). In that fashion, the Court was able to look past the corporate entity to pierce the corporate veil and focus on the rights of the corporation’s members. That is, rather than treating the corporation as a legal “person” with rights of its own, corporations could assume the rights of other people (human beings)—their shareholders or members, for example.
Utilizing this approach, the Citizens United Court suggested that these associations were being persecuted as “disfavored speakers” for making political expenditures. In this respect corporations were treated as the sort of “discrete and insular minorities” subjected to discrimination and hostile legislation that had its roots in the corporate rights cases of the mid-20th century. (These cases involved freedom of the press and censorial taxes imposed by Huey Long, and freedom of association cases involving the NAACP).
Citizens United, also emphasized the listeners’ rights theory of free speech that Justice Lewis Powell had used to justify extending free speech rights to corporations in Bellotti—i.e. that the First Amendment protects speech and the speaker and the ideas that flow from each. Here the Court was following the listeners’ rights theory of the First Amendment first proposed by Ralph Nader’s Public Citizen Litigation Group in the Virginia Pharmacy case. The idea is, that if speech is valuable, it is protected regardless of the identity of the speaker. Distinguishing among different speakers was forbidden.
Finally, Citizens United was consistent with the law-and-economics perspective on laws designed to protect shareholders set out in Justice Scalia’s dissent in Austin v. Michigan Chamber of Commerce. Here, the idea is that corporate abuse can be corrected by shareholders through the procedures of corporate democracy by elections to the board of directors and prohibitions against management making political expenditures.
While there is much in the Citizens United decision with which I disagree, the opinion is the law of the land. And those wishing to amend the constitution need to understand what the basis of Court’s decision actually is.
To that point, if Americans want to amend the constitution to take back control of election spending, campaign finance and the other ills that Ms. Kirchmyer discusses, merely ending the idea of corporate personhood is not likely to achieve those laudable goals.
Corporate personhood, is not the problem. Rather, the Court’s approach of ignoring the corporate form, and of looking right through corporate personhood to endow non-human legal entities with constitutional rights is. It is that approach which must be changed.
James C. Nelson
Montana Supreme Court Justice (Ret.)