Skip to main content

Reading through the numerous posts and comments on corporations as people, particularly with respect to free speech and the Citizens United case, I've been frustrated with the lack of clarity and thoughtfulness on this issue. Here is my attempt to explain my thinking on these issues. This is going to be long; there is no TL;DR substitute.

Here are some common arguments I see being made in support of Citizens United: "Corporations are just groups of people, so restricting their speech is restricting people's free speech". "This isn't about corporate personhood, it's about free speech!" On the other side, often the arguments revolve entirely about how corporations aren't people, which is technically correct but isn't really getting at the issue.

To start with the blatantly obvious: Corporations are not people. Period. This shouldn't even need debating. Anyone who has progressed beyond Abstractions 101 should agree with this.

What are corporations? They are groups of people endowed with certain legal characteristics to facilitate economic activity. This is the most important part: "economic activity".

According to Wikipedia, common characteristics of corporations include "Legal personality, Limited liability,Transferable shares (ownership), Centralized management under a board structure". One should recognize that many of the economic rights of an individual are also available to corporations (such as legal personality, property ownership, the ability to enter into contracts, etc.) because we want to facilitate the ability of corporations (groups of people) to participate in economic activity. This is what corporate personhood means: not that they pump blood through veins, but that we give them rights that are originally thought of as individual rights to facilitate group activity.

But, and this is probably the most important sentence: Corporations should not have the political rights of the Individual simply because they have the economic rights of the Individual.

Society and government CAN and SHOULD give different groups of people, made for different purposes, different sets of individual rights tailored for said purposes. A group of people should not have ALL the rights of individuals - it depends on the PURPOSE of the group.

This should be pretty obvious if one considers some other "types" of groups of people. Consider religions. A religious group is just a group of people. Does that mean they should have all the political rights of people? Should they be able to endorse and campaign for a specific candidate's election? Spend unlimited money on elections? Tell all their members how to vote? F__K NO. I don't want the Catholic Church or any other religious organization exerting political influence, thank you very much. We have something here in the US called "Separation of Church and State." Should they be able to engage in economic activity, like a corporation? Of course they should be able to sell products (i.e. Bibles) and have finances, but should we give them limited liability? Let a church leader take tons of money from their followers as "loans" and not have to pay it back by declaring bankruptcy? I say no. How about shareholders? Should people be able to buy stock in a church, which then is legally responsible for increasing shareholder value by converting other people and raking in money? Probably not. The reverse holds true too. Government is just a group of people, but we don't want government to have the same rights in the religious domain as a church (restrict membership to believers, for example). Again, separation of church and state.

Other examples might not be so clear and present to American politics today, but are important nonetheless. A military is also a group of people. A country might have a privatized military that is not part of the government. Should a military be allowed the political rights of an individual? To spend unlimited amounts and endorse specific candidates? That couldn't possibly lead to problems, right? How about to engage in economic activity? An organization that has the power of deadly force combined with a profit motive, no problem there, right?

Back to the original point: We CAN and SHOULD regulate different groups of people differently. This is no different for corporations. They are created as ECONOMIC entities, so we give them economic rights, not political ones. Just as there are problems in the previous examples, there are major problems with giving corporations political rights. I'm sure people can think of even more, but here is a sampling:

1. Corporate decision-making is inherently centralized, without much recourse. This is great for economic activity, but is counter to democratic principles. This is pretty important to understanding the human motivations behind this issue, especially the political ramifications. Who makes the decisions? All this talk about corporations just being a "group of people" ignores the reality of the situation. While it is true that it is a group of people, the real nature of the corporation is that it is a large group of people who all work provide a lot of profit to far fewer people, and it is the few at the top who make the decisions and control the spending. This is the reason "corporations" (i.e. the people at the top) like Citizens United - because those at the top would control the political money and power provided by the rest of the "group of people" who have little say. When we say "corporate free speech", what that really means is "amplified speech of those who control corporations". In other words, this is a classic case of undemocratic centralized power. Again, great for operating in the economic domain, but fundamentally counter to democracy.

2. Corporate treasuries are the result of people buying a product or service. People do not and cannot spend money on basic products thinking about the political ramifications. Money that people spend is a vote of confidence in a product and a way of encouraging further development of said product, not to support the political leanings of its executives! In other words, this money is not political. Corporate assets are like a social mandate to continue the economic activities that earned them the profit. Using these assets for political purposes is a gross distortion of the reward system of capitalism. Related is the fact that a person cannot possibly consider the political activities of the corporations when buying products. And some things cannot be avoided. What if you don't like the politics of your local utility? Do you have to give up electricity, hot water, gas, or move? What if you disagree with your local internet provider? No more internet? Or the only grocery store in a rural community? Give up food? We segregate economic and political activity in order to keep these domains separate. Furthermore, why should economic differences lead to democratic differences? Why should a company that operates in a sector with inherently higher margins or sales versus a commodity industry inherently get more political power?

3. The sheer scale of corporate treasuries dwarfs electoral spending. Again, this is because they operate in the economic domain, not the political one. Example: Exxon Mobil made revenues of $383 billion dollars and $30 billion in profits in a single year. The total spent on all federal elections in 2008: $5.85 billion. In other words, a single corporation could spend 20% of its profits or 1.5% of its revenues in a SINGLE year and spend more than all federal candidates - House, Senate, President - combined. And that only happens every 4 years. Again, that's a single corporation in a single year dwarfing all federal elections. Anyone want to compare total corporate profits on a four-year basis? Do we really want to be mixing these two realms (economic and political)?

4. Sovereignty. A corporation has no national allegiance. No citizenship. It almost makes no more sense to say any company is an "American company". At most, one can be based in a country, but corporations nowadays are multinational by nature. They make money all over the world, enter into contracts all over the world, have shareholders all over the world. They have no vested interest in any particular country, the United States included, unless it happens to benefit them financially. That is "ok" (a whole 'nother debate) in the economic realm, but there is no reason to give such entities political power that is reserved for citizens! Along these lines, opening political power up to corporations allow hostile states to interfere with domestic politics. There is now nothing stopping China from funneling money and influencing American politics. The next time a candidate runs with a platform of improving democracy and human rights in China, there is nothing stopping the Chinese government from either creating a corporation or using an existing sympathetic one to funnel money toward opposing him/her. Which side has the deeper pockets?

5. Transparency: corporate dollars are not transparent. Not even close, compared to political organizations like campaigns or PACs. These groups are required to disclose every single dollar of revenue and its source, and every single dollar spent. Corporate money flows cannot be tracked. This allows for foreign governments to exert domestic political power, as in point 4, or simply allows the rich and powerful to greatly amplify their political power. That runs counter to all the historical progress we've made in democracy, which can be understood as precisely reducing centralized power in the hands of the few in favor of equal political power for everyone. We simply can't (and don't want to) impose the sort of transparency that would be required because, say it with me again, corporations are economic entities. Tracking every dollar spent and earned through meticulous FEC-like disclosures would greatly impede economic activity. If you really really want corporate free speech, go ahead and ask them to go along with such disclosure requirements. Good luck.

Back to the core point. Corporations are for economic activity, not political activity. So what about all the complaints that restricting corporate speech inherently restricts speech of people? Bullcrap. Nobody in their right mind would form a corporation to engage in democracy as a group. "Hey guys, if we want to get our message out, we gotta go out and SELL THOSE MICROWAVES!" "Thank goodness we have limited liability to help us reach people!"

The fact is, there are already clearly defined outlets for groups of people to organize for political purposes. A key example is the Political Action Committee (PAC). A PAC can spend unlimited amounts of money as speech for political purposes. There ya go. Of course, it also has restrictions which make it appropriate for the sensitive domain of politics, such as transparency of every single dollar spent. Donation limits ($2.5k per person) seek to limit outsized influence by the few, while still allowing everyone to contribute as much as a typical person would desire. Note the philosophy of this rule: PACs derive their power from the equalized contribution of individuals (i.e. democracy) for the express purpose of political speech; therefore, they may spend unlimited amounts. Corporations derive their power from economic activity; therefore, they should not be allowed to influence the orthogonal domain of democracy. The specifics of what the contribution limit is are not important and can and may be adjusted. The point is that groups of people organized for political purposes have a way of doing so, and corporations are not it. Conflating restrictions on corporate speech with restrictions on group speech is a red herring designed to engender sympathy ("oh noes! not my free speech!") while sidestepping all the problems with corporate speech.

This was also a key issue in the Citizens United case. CU was a non-profit corporation that also ran a very wealthy PAC with millions in assets. They could have spent unlimited amounts from that PAC for the very purpose in that case (distributing their Hillary movie) and abide by all the regulations on PACs . They chose not to and instead spent money from their corporate treasuries. This is not about censorship - there is nothing specifically relevant to the Hillary movie. It is about the source of money: whether that derives from individual democratic power or economic assets.

To summarize, as a society we need to recognize that there are fundamentally different issues at play in different domains of human activity - whether they be democratic, economic, religious, etc. Regulating these appropriately for their domain and enforcing a separation of concerns is critically important for keeping each of those healthy. This is exactly what is at play with respect to restrictions on corporate speech.

This issue is simply another instance of one of the oldest and most important stories throughout history - that of equality and democracy fighting against centralized power that seeks to entrench itself further. Corporations are one of (if not the most) powerful modern vehicles for centralizing power, and while that sometimes makes sense for economic activity, we simply cannot allow that power to bleed unchecked into democracy and politics. I'll end with a famous quote that says it better than I could:

"I hope we shall crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country." -- Thomas Jefferson

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  Every Person In a Corp Already Has Free Speech. (1+ / 0-)
    Recommended by:
    chmood

    If we outlaw corporate speech we have not restricted a single human being.

    We need to amend the 1st Amendment to read like the 2nd Amendment that is so precious to the rightwing.

    The 2nd amendment doesn't recognize any rights OF arms. It recognizes the right of the people to bear arms.

    But the 1st amendment is sociopathic. It gives the speech itself a Constitutional right. That's insane. Once speech exists, we the people can't touch it through government. Corporate personhood isn't the problem --SPEECH PERSONHOOD is the problem.

    Accordingly the 1st amendment needs a 2 word amendment:

    Congress shall make no law ... abridging the freedom of THE PEOPLE'S speech,

    Just like the Holy 2nd Amendment. Guns and apple pie, who can argue with that?

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Wed Nov 09, 2011 at 10:28:24 PM PST

  •  Thanks (0+ / 0-)

    for spending time thinking and writing about this. I have forwarded it on to a conservative friend of mine that has become more open to discussion.

    If peace is to prevail we all have to become foes of violence.

    by spacejam on Thu Nov 10, 2011 at 04:15:24 AM PST

  •  You should include sections from the Majority (1+ / 0-)
    Recommended by:
    2020adam

    opinion referencing corporate personhood to argue more directly.

    Also cover how corporations do not have have freedom of the press rights.

    The most important way to protect the environment is not to have more than one child.

    by nextstep on Thu Nov 10, 2011 at 06:42:23 AM PST

    •  nextstep - except those sections don't exist (2+ / 0-)
      Recommended by:
      nextstep, 2020adam

      Citizens United was not about corporate personhood, or corporations as people. Those were not even issues in the case. The majority went to great lengths to differentiate between "natural persons" and associations of people such as unions or corporations. Citizens United was not about "granting" free speech, but acknowledging that the First Amendment is not a right of the people but a restriction on Congress. You may recall the First Amendment starts "Congress shall make no law...............". The Amendment does not limit the restriction to only people.

      It would be great to have the diary author read the majority opinion and you should read it too. We have an echo chamber of misinformation here at DKOS that somehow CU allowed corporations to make unlimited campaign contributions - they can't, their limit is ZERO (Tillman Act). And that somehow CU had something to do with corporate personhood or corporations as people. It didn't. In addition, the SCOTUS has NEVER said in an opinion that corporations are people.

      "let's talk about that"

      by VClib on Thu Nov 10, 2011 at 10:59:40 AM PST

      [ Parent ]

      •  Thanks for the comment (2+ / 0-)
        Recommended by:
        VClib, 2020adam

        to make my point.

        The most important way to protect the environment is not to have more than one child.

        by nextstep on Thu Nov 10, 2011 at 11:01:40 AM PST

        [ Parent ]

      •  Spot on. The more pertinent (and harder to attack) (0+ / 0-)

        problem is the mindset of the Judiciary in America. They favor power. Corporations and governments are steadily ceded more power, a deeper well of rights, and an ever-expanding immunity from... well, everything. The markets. The law. The will of their shareholders.

        This isn't because of some oft-cited precedent establishing that Corporations and Governments have feelings too, so you can't do anything bad to them. Judges have simply been brainwashed by pro-business propaganda that pervades the political, legal and educational system.

        No mere precedent would receive as much deference as the ideology of the Infallibility of Power.

      •  Not my point (0+ / 0-)

        Nowhere did I claim that the majority thinks corporations are people. (Also, nobody is talked about contributions. Those words don't appear in my post.)

        That is just the first part in this discussion - corporations are just a group of people. Everyone agrees.

        The majority's opinion falters when it assumes that we cannot possibly restrict corporate speech because it is a group of people. False. We already restrict religious organizations from participating in political activity. Likewise with the military.

        "First Amendment is not a right of the people but a restriction on Congress." Only people can have rights! It does not even make sense to talk about rights for artificial abstractions. Of course it is a restriction on government, that's the entire point of the Constitution.

        The Constitution grants rights to people. It does not grant rights to imaginary fictions. It does not give rights to the color green, or the number pi, or corporations. It wouldn't even make coherent sense to give it to anything other than people.

        It is incomprehensible to me why anyone can to think that free speech could exist as anything but a right of people. Corporations do not have mouths. As a comparison for how incomprehensibly crazy this is: the freedom of religion is written right next to free speech in the Constitution. Should we give corporations the right to believe whatever religion they want? No, because that makes no f__cking sense!

        •  My comment was directed at nextstep (0+ / 0-)

          I didn't know his comment was in jest.  

          While your comment is factual your title  "Corporate Personhood, Citizens United, and Free Speech" suggested linkage between all three, when none exists.

          You are certainly entitled to your opinion about corporations and their political speech rights. I don't agree that only people have rights. Any entity that is recognized as a legal structure has rights. Many of these structures we tax and they certainly have the right to try and influence how much they are taxed and what rules they must follow. Those rights include free speech rights and the right to lobby. I believe the Founders meant the First Amendment to restrict Congress from passing laws in a much broader fashion that just people. One other point religious organizations are NOT prohibited from participating in political activity. Currently they cannot endorse candidates, but they have wide latitude to support issues and ballot initiatives. There is a safe harbor of less than 20% of their budget, but that gives big churches lots of room to be very active in political efforts. We saw this from the Mormons and Catholics in California's Prop 8, all of which was perfectly legal. The black civil rights movement was led by the clergy and financed in black churches. Corporations can believe whatever religion they want. Catholic Healthcare West is one of the largest healthcare providers in Northern California. Guess what, they believe in Catholicism.

          "let's talk about that"

          by VClib on Thu Nov 10, 2011 at 07:40:57 PM PST

          [ Parent ]

          •  Ok (0+ / 0-)

            Sorry if the title suggested more than I really wanted to talk about.

            "I don't agree that only people have rights"
            Nor do I. But it doesn't follow that every group of people has the full range of rights of a person.

            Regardless of the specifics of church finances, they are prohibited from political activities that are perfectly ok for people. Likewise, we do not want the military to engage in political activities.

            Corporations are economic entities - we should give them economic rights. No reason why that should also include political rights. Please read the list of dangers in mixing these two domains; it often doesn't even make coherent sense. Other organizations, like PACs, we should give the full set of political rights.

            The ultimate point of this whole debate: Is there a basis for restricting the speech of corporations? Yes. Giving groups/organizations of people certain subsets of natural human rights to facilitate a certain type of activity, while restricting them from other types of activity whose confluence is harmful, is a perfectly good basis. And we already do that.

            •  veekhe - the challenge is where to draw the line (0+ / 0-)

              I agree with you that we restrict the political rights of certain entities, the challenge is where do we draw the line? We have prohibited corporations from making campaign contributions since the Tillman Act of 1907. I think that may be the next big case in this area. I personally think that the current SCOTUS will uphold the Tillman Act as constitutional and that is where they will draw the line.

              I don't think we can prohibit all corporations from all political activity when all of their rights and even economic viability are determined by politicians. I am particularly sensitive to this issue as Congress and President Regan put a very successful business I had built out of business with the stroke of a pen. Surely I had every right to spend whatever corporate cash, use whatever influence the company and I had, or retain any lobbyist, to oppose those actions.

              "let's talk about that"

              by VClib on Fri Nov 11, 2011 at 08:10:40 AM PST

              [ Parent ]

    •  Call Amy Goodman. (0+ / 0-)

      She'll want to know that Democracy Now! Productions Inc. should no longer rely on the First Amendment.

      •  Free press (0+ / 0-)

        We also have something in the Constitution called freedom of the press. That's precisely how things worked (in theory) before Citizens United - typical corporations could not spend on political speech; media organizations can. This is not a hard distinction to make - we were already doing it.

        •  What do you think freedom of the press means? (0+ / 0-)

          The real meaning of freedom of the press is that those who wish to speak can use various resources including publishing resources that require economic resources to distribute their speech to a wide audience.

          The right to free speech is not limited to a right to talk to yourself in the dark.

          The most important way to protect the environment is not to have more than one child.

          by nextstep on Thu Nov 10, 2011 at 09:04:47 PM PST

          [ Parent ]

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site