by Charles Lemos, Tue Sep 22, 2009 at 10:37:10 PM EDT
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.