Now is the time to withdraw corporate political personhood
There's no research that I know of, but most people would likely agree that one of the most corrosive aspects of American politics is the ability of megacorporations to wield repugnantly large sums of money to sway elections and policies. This ability is largely the product of a very questionable 1886 Supreme Court decision which is now embedded in the political fabric of the United States to the detriment of the vast majority of its "natural" citizens.
We might argue a bit about the question of whether it is fair to question the fairness and propriety of this state of affairs, but its unfairness and impropriety seems so obvious to me that I will simply take it for granted that the system is a source of corruption. Let's simply discuss the potential of a cure for this disease.
Perhaps more than any time in American history, the general populace is aware of the unholy power of Corporate America and its ability to warp the political landscape. The awareness arises from the fact that corporate behavior, deservedly or not, is viewed as greedy and corrupt -- even by the Republican candidate for President -- and that such greed and corruption is currently having a direct impact on the lifestyle of many members of the middle class.
Further, it looks as though 2009 will find our nation under the sway of the most centrist -- certainly not progressive, but at least not extremist rightish as in recent decades -- collection of state and federal leaders that we have seen since the malignancy of Ronald Reagan infected much of the Free World in 1981.
So the iron is hot, and those politicos who recognize corporate personhood as a primary source of evil in America should strike by proposing and passing a constitutional amendment stripping corporations of their ugly position of ubermenschen with authority without responsibility, power without balance, wealth without limit.
The "artifical persons" will use their citizenship to fight furiously and expensively against what's best for the citizenry, but maybe, just maybe, the current economic debacle will enable enough "natural" citizens to recognize and insist on legislating their own self-interest for once.
Great to see you, Grandmaster Tank. And a good piece.
Question - abolish or redefine? And, if abolish, thoughts on what legal status the corporation could take on?
Cheers, dude.
October 26, 2008 10:40 AM | Reply | Permalink
There is no doubt in my mind that the concept of limited liability has an indispensable place in a capitalist economy. The right to lobby should also extend to "artificial persons," it seems to me. What is objectionable in the current system is the unfair influence that commercial can impose on public opinion.
There is no doubt in my mind that the concept of limited liability has an indispensable place in a capitalist economy. The right to lobby should also extend to "artificial persons," it seems to me. What is objectionable in the current system is the unfair influence that commercial can impose on public opinion.
My proposal would be that we remove corporations' protections under the Bill of Rights and grant them such rights as should be applicable to commercial enterprises. One that would NOT be appropriate is the privilege of spending money with the intent of influencing an election. I leave it to the legal eagles to work out the language.
Thanks for the welcome and the rec, quinn. It's good to be back. But I can't wait until this election is over and we can get back to our normal level of mediocre drivel.
My proposal would be that we remove corporations' protections under the Bill of Rights and grant them such rights as should be applicable to commercial enterprises. One that would NOT be appropriate is the privelige of spending money with the intent of influencing an election. I leave it to the legal eagles to work out the language.
Thanks for the welcome and the rec, quinn. It's good to be back. But I can't wait until this election is over and we can get back to our normal level of mediocre drivel.
October 26, 2008 10:54 AM | Reply | Permalink
Unfortunately, there's absolutely no way to abolish the status of corporations as juridical "persons."
This status has been developed in an enormous and ever expanding volume of case law; Louisville, C. & C.R. Co. v. Letson, 2 How. 497, 558, 11 L.Ed. 353 (1844), for example, established corporations as nominal citizens of the state in which they were incorporated.
The case that Tankard probably has in mind from 1886 was Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886), which extended the "equal protection" guarantees of the Fourteenth Amendment to corporations. This was a relatively painless success for corporations, which didn't have to pass through generations of chattel-slavery like Dred Scott and his descendants, for whom the Fourteenth Amendment was originally written.
Oddly enough, the pronouncement that made SCC v. SPRC (1886) famous was formally outside the opinion expressed by the court. For some unknown reason, some unknown court reporter affixed Judge Waite's extension of the Fourteenth Amendment to corporations onto the case history, and this thing passed into legal folklore without ever being enacted by statute or established by judicial decision.
The essential element of legal personhood that can't be abolished is the ability to enter into binding contracts. This can't even be "grandfathered" out, because of repercussions along a vast network of contracts extending into the distant past and remote future. In spite of the recent unpleasantness in financial markets, some pensions are still collected and some insurance payments are still made.
If the toaster in your kitchen electrocutes you one fine morning, your wife will want to sue GE, but she can only sue a legal person.
This doesn't mean that the legal personhood of corporations can't be restricted in various ways. Corporations can't marry, for example, although cannibalism is permitted. One corporation can entirely consume another and dissolve it into its constituent atoms, but I don't have the right to take even the tiniest bite out of Dick Cheney.
October 26, 2008 2:53 PM | Reply | Permalink
there's absolutely no way to abolish the status of corporations as juridical "persons."
What am I failing to understand? A constitutional amendment can't be found unconstitutional regardless of the case law. And legislation can establish the conditions under which corporations operate. I don't have any legal training, but this seems like a slam dunk...assuming, of course that the amendment can be enacted.
October 26, 2008 3:04 PM | Reply | Permalink
Legal personhood not only confers rights, but imposes obligations. Without it, contracts can't be enforced.
Your Amendment would simultaneously cancel billions of contracts, and free corporations from all civil liability, because only legal persons can be sued, and that's just the first page of this nightmare.
This wouldn't be a problem for me and Lux, in our bomb-proof fortress in Tierra del Fuego, where we have an unlimited supply of canned tuna and Harlequin Romances, but the rest of you would starve in the ensuing chaos.
October 26, 2008 4:02 PM | Reply | Permalink
I must question your premises. I'm sure I don't have to point out that there can be different classes of "persons." A corporation, for example, cannot be jailed for fraud even though it can commit fraud. Certainly a constitutional amendment that said something like, "The rights enumerated herein are to be applied only to natural persons and not to corporate entities," would do the trick.
Naturally, corporations need to have rights of their own. These could be legislated. But the right to spend its shareholders' money for noisome propaganda purposes ought not be one of them.
October 26, 2008 6:00 PM | Reply | Permalink
Not really. The question of corporate personhood was never taken up in Santa Clara County v. Southern Pacific Railroad Company. The opinion of Chief Justice Waite was merely entered into the syllabus by the court clerk. It was not part of the decision.
October 29, 2008 4:30 AM | Reply | Permalink
Hear, hear. At this point it looks as though it would require a Constitutional amendment to explicitly declare that corporations are not persons.
October 26, 2008 11:38 AM | Reply | Permalink
Recommended.
Warm welcome back Tankard. It is good, very good to see you again.
Have you read, "Gangs of America" by Ted Nale? The book is a good companion to Hartmann's "Unequal Protection" tome and lays out the case for stripping the corporations of thier accidental personhood.
October 26, 2008 12:30 PM | Reply | Permalink
This would have been a great question at one of the debates: Why are corporations treated like and in some cases better than a person?
October 26, 2008 2:44 PM | Reply | Permalink
Tankard, I'm not going to jump into this fray, just wanted you know I missed you. I didn't see your goodbye piece or I would have bid you well...
I didn't know you had formally said goodbye, just figured you were tired of the bull or had better stuff to do, but I did notice you hadn't been around. I've mentioned in several comments how much I've always appreciated the way you've treated me in our discussions, i.e. dumbing down the conversation a bit so I can participate, gently exploring my positions instead of telling me how stupid I am, and basically sticking to issues rather than personalities.
So, long story short, good to have you back! I'm looking forward to your perceptions.
October 26, 2008 6:34 PM | Reply | Permalink
Thanks for coming back, Tank. I've missed you.
October 26, 2008 7:47 PM | Reply | Permalink
One hundred thousand thanks to everyone who has welcomed me back, both for simply doing so and for the words you employed to do it.
(But there are many denizens of this blog who view my return with disgust. I'm just pleased that they haven't bothered to express their displeasure yet.)
October 26, 2008 7:55 PM | Reply | Permalink
Oh, don't worry---they might eventually!
"plus ca change..."
October 26, 2008 8:05 PM | Reply | Permalink
As the Bush impeachment was the ruler by which we judged the 110th Congress, this should be our metric for the 111th.
October 26, 2008 10:18 PM | Reply | Permalink
Amen to this brother. It's about time we ended private profit at the public's expense. Nothing quite like a business racking in tons of dough, making it's owners, CEO's, etc, rich rich rich, finally folding for one reason or another, then getting propped up (or it's debt's paid of) using public monies. Taxpayers should not be held responsible for the failings of corporations, while the people who failed the corporation take huge serverance packages, etc. The system is seriously fucked up.
October 26, 2008 10:19 PM | Reply | Permalink
Tankard, I believe your post is well intentioned, and there is no doubt that some businesses are responsible for some very despicable, unethical and unconscionable acts. That having been said, I must disagree with the proposal of revoking corporate personhood.
Thank you to Jacob Freeze, who points out one of the principal problems with your proposal - only legal persons can execute contracts. Here is another:
The vast majority of corporations in this country are not large businesses - they are small ones. Very small. Here is some data for those so inclined (from the census bureau):
http://www.census.gov/epcd/www/smallbus.html
Would you start an ice cream shop, doctor's office, or clothing store in our society (or any store, for that matter) if you knew that someone could sue you and, if successful, take your personal assets, house, etc. if they slipped on an icy sidewalk (assuming the business did not cause the ice) outside?
For small business owners, without this liability protection, most of them would not be in business in the first place, plain and simple. And most small business owners I know are already risking just about everything just being in business for themselves. Few make it to be big corporations. OK, enough of the small business song.
Here's where I would agree: what if there was a way to legally dissolve large (how to define this one?) corporations whose agents (with or without management approval, or both?) knowingly committed felonies in the interests of increasing corporate profits, etc? You would find few if any small businesses doing this, for sure. And I do think internal corporate governance would be much more strict.
Or how about this one:
if a corporation grew large enough that its mismanagement or a group of corporations grew large enough that their behavior as competing peers was serious enough to cause the collapse of the financial system (or ecology of a region, like Prince William Sound) wouldn't it be time to break them up?
October 27, 2008 12:18 AM | Reply | Permalink
Thanks for the post and your presence, Tankard! You're needed here. (I was away for a while myself, but we all find our way back.)
October 27, 2008 2:23 AM | Reply | Permalink
Not sure I understand well enough to agree or disagree... But thanks for starting a discussion that I'll have to come back and read more carefully.
As part-owner of a (very) small corporation, I agree that stripping personhood would have some extremely serious consequences, but what I'm feeling clueless about is whether there's another approach that would address the excessive influence over our political process that corporations exert.
October 27, 2008 2:44 AM | Reply | Permalink
Jacob Freeze and AlaskaSense (hmmm...both related to cold and ice) are attacking a proposal that I have not made; in fact, one that I explicitly disavowed at least twice. So let me make this as clear as I am able:
Corporations are necessary commercial and legal constructions. Corporations should and must exist as commercial and legal "persons." But the Bill of Rights and the Fourteenth Amendment were never intended to apply to corporations, nor is it any more appropriate to bestow carte blanche freedom of speech to a corporation than it is to grant the right to keep and bear arms to four-year-olds, who are also persons.
October 27, 2008 8:03 AM | Reply | Permalink
Thanks for the clarification Tankard - now you're talking. The Europeans, for example, regulate corporate "speech," including advertising. We might want to take a closer look there.
FYI - "Jacob Freeze" and I are definitely separate posters.
October 27, 2008 6:07 PM | Reply | Permalink