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Real People v. Corporate “People”: The Fight Is On

The Supreme Court says corporations can spend as much money as they want on political advertising. Millions of Americans say they've had it.
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But this is the logical conclusion of the doctrine of corporate personhood, a legal theory that has been developing since the 1800s. Until 1819 the law was clear that corporations had no constitutional rights. In that year, the Court held for the first time that the Constitution applied to corporations.

How to Get Involved

Free Speech for People
proposes an amendment to the Constitution that will restore the First Amendment to its original purpose: protecting the people’s right to speak. Its website has plain-language explanations of Citizens United and the issues it raises and a link where you can join 50,000 others petitioning Congress for an amendment. freespeechforpeople.org

Move to Amend is working for an amendment that will revoke all constitutional rights for corporations. Find links to the full text of Citizens United and an exhaustive reading list on the case and on corporate personhood. Check out its “Take Action” page. Nearly 78,000 people have signed its petition. movetoamend.org

The Community Environmental Legal Defense Fund is one of the pioneers in the fight against corporate personhood. Read its articles on Citizens United and dig into resources about community-rights initiatives and the Daniel Pennock Democracy School. celdf.org

The key moment was the 1886 case, Santa Clara County v. Southern Pacific, an unremarkable case about taxes on railroad property. One of the railroad’s arguments was that the tax they were challenging violated the then-relatively new 14th Amendment to the Constitution—the Amendment that specifically overruled Dred Scott.

The railroad claimed that it had been deprived of “equal protection under the law,” which is one of the guarantees of the 14th Amendment. The problem with the argument was that the Amendment said, “No state shall … deny to any person within its jurisdiction the equal protection of the laws.” There is nothing in the language of the Amendment that makes it apply to anyone but humans—it uses the words “person” and “citizen.” The railroad’s argument was that, since a corporation was a legal entity, it was rather like a person and, thus, should enjoy the rights granted by the 14th Amendment.

The Court made no official decision on that issue, and it is discussed nowhere in the Court’s opinion. But in the headnotes (an unofficial summary of the case, not written by a judge), the court reporter, a former president of a small railroad line, quoted the Chief Justice as saying that the Court did not want to hear arguments on whether the 14th Amendment applied to railroads because “we are all of the opinion that it does.”

A lawyer who based an argument on a headnote would be laughed out of court. Yet the headnote in Santa Clara has been treated ever since as a statement of the law. From that crack in the door, the Constitution has been broken open to gradually provide corporations more of the rights granted to humans.

We have gone from a Constitution that nowhere mentions corporations, let alone grants them rights, to Citizens United, which says that the Constitution cannot tell the difference between General Motors and a member of the general public.

Corporations are now a sort of super-being: They can live forever, they cannot be jailed, they have no conscience—yet they also enjoy virtually all the rights that humans have.

“[T]he Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense.” But for the style, those words might have come from one of the activists working to abolish corporate personhood. They are actually the words of Justice John Paul Stevens, speaking for the four dissenters in Citizens United.

A Turning Point

Eighty percent of Americans agree with Justice Stevens, and they’re ready to demand a return to common sense. The Community Environmental Legal Defense Fund (CELDF), founded by Thomas Linzey in 1995, has long championed abolishing corporate personhood. Citizens United “opens peoples’ eyes,” says Mari Margil, CELDF’s associate director. “Very often we walk into communities and they’ve never heard of corporate constitutional rights, or they think it’s an academic concept that’s not important for their lives. So we have to show through stories, through examples, through breaking down how our structure of law came to be and how it works,” says Margil. “Now Citizens United allows us to speed that process up a bit.”

Cobb Photo by Doctress Neutopia

David Cobb has given more than a hundred presentations on Citizens United and what it means to our democracy.

Photo by Doctress Neutopia

Riki Ott and David Cobb are working under the banner of Move to Amend, a coalition that launched its Web site the day the Citizens United decision came down. In less than three months, says Cobb, without coverage in a single mass media outlet, more than 77,000 people have signed the group’s online petition for a constitutional amendment to reject the Citizens United ruling. Move to Amend now counts among its growing steering committee and key partners more than 20 progressive organizations, including Black Agenda Report, the National Lawyers Guild, Velvet Revolution, and the Women’s International League for Peace and Freedom.

A partnership of Voter Action, Public Citizen, the Center for Corporate Policy, and the American Independent Business Alliance launched Free Speech for People (FSFP), also on the day of the decision, and also seeking a constitutional amendment. They worked with Rep. Donna Edwards (D-Md.) on the amendment she has introduced in the House, which restores the right of Congress and the states to regulate corporate spending. They have collected about 50,000 signatures on their petition.

John Bonifaz, legal director of Voter Action, has participated in FSFP presentations. “It’s pretty clear that the public is ahead of Washington,” Bonifaz says. “Washington, D.C. is looking at relatively modest reforms. The people around the country are very clear on the idea that corporations aren’t people. They believe the Citizens United ruling is a threat to our democracy and to the First Amendment.”

Still, all of these activists caution that this is a matter for the long haul. Amending the Constitution is not an overnight process—Dred Scott was accepted law for 11 years; the fight for women’s suffrage was multi-generational.

Cobb says that although we’ve been told that this is a land of liberty, justice, and equality, people are realizing that it’s not. “Rather than just get caught up in despair and anguish, we can make it that land,” Cobb says. “We are going to force this country to live up to its promises and its best ideals. Are you with us?”


Doug PibelDoug Pibel wrote this article for Water Solutions, the Summer 2010 issue of YES! Magazine. Doug, managing editor of YES! Magazine, spent many years as an attorney. This article incorporates original material from David Cobb.

Interested?

Citizens United v. Federal Election Commission: Read the full text of the decision.

Recovering from Citizens United: Read updates on how we can get our democracy back.

 

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