Corporate Personhood and Political Free Speech (Tin Man K.O.’s Straw Man)

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. is an occasional writer who is always independent. His e-mail address is: Read other articles by Manuel, or visit Manuel's website.

3 comments on this article so far ...

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  1. bozh said on January 22nd, 2010 at 9:35am #

    I suggest we first carefully examine the pants before deciding to patch or change them.
    It is systemic; i.e., of the system to eschew it and introduce only cosmetic changes. It is of the system that people who own america, rule america. It is not that much different in jordan, egypt, UK, belgium, italy, and in all other asocialistic countries.

    Bankers-banking, cia, fbi, congress, WH, media, army, `private` army -êverything that matters in US is private and not just `private` army; there is that snake oil sale again- are at least partly self-regulated or behave in accords with laws.
    AS we know pols have often said, We r nation of laws! I said nothing new thus far! Some people have known the artifice since first `noble` or priest arose.
    Actually, US is in private hands. So is constitution, laws, warfare, poisoned food, etc.
    To illustrate: a prez never need to fret ab how cia behaves; it can do whatever it wants; no cia agents gets punished. A prez needs not unduly worry ab what bankers do. Of course, when bankers are in trouble and being a structular member of the governance, bankers are self- and govenmentally-rescued.

    The important thing to note wld be not to deem any structural member of governance as existing in total isolation from the whole or any part of the whole.
    So, essentially, the role of media is to sell snake oil. And it had succeeded probably beyond its dreams. tnx

  2. insultant said on January 22nd, 2010 at 6:38pm #

    “Corporate Personhood”. The concept, in which the First, Fifth, and Fourteenth Amendment rights has been asserted by corporations, is traced to the 1886 Supreme Court case Santa Clara County v. Southern Pacific Railroad Company. Chief Justice Morrison R. Waite announced:

    “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.”

    This quotation was printed by the court reporter. The decision did NOT address whether corporations were ‘persons’ with respect to the Fourteenth Amendment. Chief Justice Waite wrote in private correspondence, “we avoided meeting the Constitutional question,” and published in his book “Unequal Protection,” the actual correspondence available in the Library of Congress. Waite did NOT intend to set a legal precedent.

    Remember when Union Carbide went to prison for negligently killing over 2000 human beings in Bhopal, India in 2004? Me neither.

    So a Constitutional amendment to protect civil rights is used by corporations to gain power over the individual? Unbelievable. Individuals that can go to jail for civil disobedience yet corporations can use their massive money and powers against our better interests? Corporations can negligently kill and stay in business? This is all ridiculous and MUST be revisited.

  3. M Richards said on January 24th, 2010 at 8:58pm #

    People are all exercised about the “morality” of all this. Two things:

    1. Speech is being framed here as a commodity, as a MARKET. This is what is driving this whole paradigm. Obviously, it is neither a commodity nor a market.

    2. See #1, above.