The NYT on the Rights of Corporations

With the Roberts Court set to overturn the Tillman Act of 1907 and expand the political rights of corporations, the editorial board of the New York Times has sounded the alarm warning that "there is a real danger that the case will expand corporations' rights in ways that would undermine the election system."

The legal doctrine underlying this debate is known as "corporate personhood."

The courts have long treated corporations as persons in limited ways for some legal purposes. They may own property and have limited rights to free speech. They can sue and be sued. They have the right to enter into contracts and advertise their products. But corporations cannot and should not be allowed to vote, run for office or bear arms. Since 1907, Congress has banned them from contributing to federal political campaigns -- a ban the Supreme Court has repeatedly upheld.

In an exchange this month with Chief Justice Roberts, the solicitor general, Elena Kagan, argued against expanding that narrowly defined personhood. "Few of us are only our economic interests," she said. "We have beliefs. We have convictions." Corporations, "engage the political process in an entirely different way, and this is what makes them so much more damaging," she said.

Chief Justice Roberts disagreed: "A large corporation, just like an individual, has many diverse interests." Justice Antonin Scalia said most corporations are "indistinguishable from the individual who owns them."

The Constitution mentions the rights of the people frequently but does not cite corporations. Indeed, many of the founders were skeptical of corporate influence.

John Marshall, the nation's greatest chief justice, saw a corporation as "an artificial being, invisible, intangible," he wrote in 1819. "Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence."

That does not mean that corporations should have no rights. It is in society's interest that they are allowed to speak about their products and policies and that they are able to go to court when another company steals their patents. It makes sense that they can be sued, as a person would be, when they pollute or violate labor laws.

The law also gives corporations special legal status: limited liability, special rules for the accumulation of assets and the ability to live forever. These rules put corporations in a privileged position in producing profits and aggregating wealth. Their influence would be overwhelming with the full array of rights that people have.

One of the main areas where corporations' rights have long been limited is politics. Polls suggest that Americans are worried about the influence that corporations already have with elected officials. The drive to give corporations more rights is coming from the court's conservative bloc -- a curious position given their often-proclaimed devotion to the text of the Constitution.

The founders of this nation knew just what they were doing when they drew a line between legally created economic entities and living, breathing human beings. The court should stick to that line.

This is really a battle for the soul of this nation. Corporate power grew in the late 19th century and was only checked with great effort during the Progressive and New Deal eras. The Reagan-Bush years undid many of the constraints placed on corporations ushering in a second Gilded Age that saw a widening social inequality as a result.  If you are interested in the history of corporate personhood, I recommend this 15 page essay from the Women's International League for Peace Freedom.

Tags: Corporate Persoonhood, Judicial Activism, SCOTUS, The Roberts Court (all tags)



Re: The NYT on the Rights of Corporations

The gulf between what is said and what happens has become so wide that it doesn't even seem to make sense to use words like "irony" or "hypocrisy" anymore, but one of the most flabbergasting things about this decade to me has been the constant complaining about "judicial activism", exclusively from the right wing, happening side-by-side with a sustained, intentional and successful campaign-- openly spoken of and bragged about by Republican opinion columnists and Presidents alike-- to use activism and nomination of ideologues to change the consensus of the U.S. Judiciary.

by mcc 2009-09-22 10:49PM | 0 recs
Re: The NYT on the Rights of Corporations

This is not a partisan endeavor. It has occurred under both Democratic and Republican administrations.

by bruh3 2009-09-22 11:43PM | 0 recs
Re: The NYT on the Rights of Corporations

Corporate interests have been packing the courts for decades. No one  seriously questions justices regarding their corporate rulings when nominating them.

More broadly, I am at a lost to see how this debate is framed any differently than the current plutocratic impulse found in reforming health care reform or Wall Street.

Right now, there is this great diary up at Open Left by Darcy Burner setting up an axis of right to left and pragmatic to idealist. There should be a third. Plutocratic and non-plutocratic.  Being on the left does not necessarily mean non-plutocratic (look at China being both Communist and plutocratic).  The point is that this can not be a surprise to any one paying attention to the arguments being made.

No one in DC leadership really discusses, again, in any meaningful way the concentration of wealth in this country or how that wealth intersects with politics to ensure that outcomes, even now, are what the wealthy want them to be.

by bruh3 2009-09-22 11:42PM | 0 recs
Re:the Rights of Corporations

In addition to agreeing with Bruh 3, I think there's a few other points:

1) You don't have to overturn The Tilman Act of 1907 to find McCain Feingold excessive. Legal arguments, especially at SCOTUS level are for tossing around ideas, and ideas in and of themselves are not bad things. Acting on some, may be. It's entirely possible, even likely, that McCain Feingold will be ruled unconstitutional - that's been in the wind since it passed. The broader questions of some unfettered right of corporations to campaign... I don't see that happening. No one really wants it, not in some  completely unregulated form (except some especially hardcore righties). What they want is corporate money, and McCain Feingold is getting in the way of that. Yes, this is problematic... but as a nation, we're struggling to find a sensible campaign finance policy... and I'd point out that the left, too, has been schizophrenic about when they see excessive money interests as a problem (i.e. when we're winning... not so much).

2. In terms of expanding corporate notions of personhood, I'd point out - which the Times seems to miss - that Scalia's and Roberts' points don't actually agree with each other. Roberts is saying corporations have a variety of ineterests, some of which may conflict internally; Scalia is saying the interests are those of the owner. I'd tend to agree with Scalia... which is why you can make an effective case that corporate money simply amplifies an owner's voice, and advances a specific set of interests, not, as Roberts is overgeneralizing, some "we're interested in everything" kind of thought.

3. Overall, I think there's a little too much "this is the end of the world" type rhetoric here; we've managed to go about 100 years with corporate contributions before McCain Feingold regulated in some fashion. If that gets overturned... even if Tilman were to be overturned... there are remedies for fixing that, including legislation, and even bringing new cases to court. If we're worried about corporations overtaking America's soul... we're already there, baby, sorry to break the bad news. Let's at least be clear about where we are - since the Times, itself a major corporation, can't seem to figure it out - so we can be clear about what can be done... and what's not likely to change, regardless.

by nycweboy1 2009-09-23 06:44AM | 0 recs


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