Corporate Free Speech?
Last night I watched a rather disheartening installment of Bill Moyer’s Journal.
Link to PBS video of this show.
Next week, the Supreme Court will reconvene early for a special hearing on the constitutionality of campaign finance limits for corporations. Bill’s guests included Trevor Potter, president and general counsel of The Campaign Legal Center and a former chairman of the Federal Election Commission, and Floyd Abrams, a First Amendment attorney. My view of the question at hand?
Are corporations entitled to the same unfettered constitutional rights as those guaranteed to all U. S. citizens?
What was most astonishing to me was how Floyd Abrams, the constitutional scholar, doggedly asserted a letter-of-the-law interpretation of the U. S. Constitution. In short, his argument was that, since the law defines a corporation as a “person”, that “person” is entitled to enfettered expression of its political views, by all means, including the expenditure of money.
Moyers and Potter countered, that beyond the disproportionate “personal” wealth of corporations, the definition of person-hood granted to corporations was problematic. Since a corporation is a concept rather than a real person, it is not subject to the complex aims and intentions that guide humans in their exercise of free speech. By definition, the corporation has only one aim — to maximize return for its shareholders. All other considerations are subordinate to this overriding aim.
The very idea that the personhood of the corporation was being described as on par with the personhood of human beings sends shivers down my spine. I imagine human beings slavishly bowing before the corporate super-person, ready, willing, and able to do whatever it takes to serve the corporate aim.
We are in greater trouble than I ever imagined if we chose to believe that the single-minded will and intention of a legally defined corporation stands on par with the will and intention of real human beings, including those who act on behalf of that legal/economic entity. If we go down that path, we become like the serial killer who claims that his acts were guided by the voice of God, only the voice of God in this case is the corporation that controls wealth far beyond that of ordinary serial killers.
Corporate personhood is a legal fabrication constructed to serve some purposes. In some ways, this construct can be useful. But if we are unable to grasp the difference between human beings and legal constructs — if we are ready to grant such constructs equality with human beings — our future is indeed, hopeless.
In fact the theory of corporate personhood arises out of a decision in the mid 1800 involving railroads and there is evidence to show that even in this decision a ‘fix’ was on. The case (Santa Clara County v. Southern Pacific Railroad; 1886) is seen as the start of the corporation as person debate. The debate centers principally on whether or not invidual rights as outline in the constitution accrue to corporations (e.g freedom of speech).
I believe the federal consitution as drafted in 1788 is silent on the issue of coproations. Thus, under the 10th Amendment, the question is left to the states and traditionally states have chartered corporations.
There is little doubt that Jefferson was not sympathetic to corporate interests. “I hope we shall… crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country.” From a letter from Jefferson to a Philadelphia representative to Washington.
Great background information! I had surmised that the the US Constitution was silent on the issue or corporate personhood because the issue was not salient at the time of its drafting. Things change and the system envisioned by the founders provided means by which to address change. I wish we had a way-back machine that would allow us to watch the founders debate the problem of granting personhood to a legal entity with financial superpowers. What was their intention when they cobbled together a system of checks and balances that were clearly designed to thwart the concentration of disproportionate power?