Let’s get the jokes out of the way:
- “If corporations are people, do they get to vote?”
- “If corporations are people, can we start incarcerating them when they commit crimes?”
- “Does this mean I can marry my bank?”
- “Does charging a fee for incorporation constitute an unconstitutional violation of their reproductive rights?”
- “Thank God we’ve finally ended the scourge of anti-corporate discrimination!”
The New York Times apparently thinks that democracy is done for:
With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century. Disingenuously waving the flag of the First Amendment, the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.
Okay, let’s tone down the rhetoric. Here’s the thing: corporations are people and have been since at least 1830, though chartered personhood seems to have operated as an implicit norm even before that:
The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men. This capacity is always given to such a body. Any privileges which may exempt it from the burdens common to individuals, do not flow necessarily from the charter, but must be expressed in it, or they do not exist.
During the oral arguments, Justice Sotomayor famously addressed this argument that the entire tradition of corporate personhood be abolished:
…what you are suggesting is that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court’s error to start with, not Austin or McConnell, but the fact that the Court imbued a creature of State law with human characteristics. But we can go back to the very basics that way, but wouldn’t we be doing some more harm than good by a broad ruling in a case that doesn’t involve more business corporations and actually doesn’t even involve the traditional nonprofit organization? It involves an advocacy corporation that has a very particular interest.
At the earliest stages, the institutions seeking personification were places like Dartmouth College, which simply wanted to conduct its business without state takeover. It’s difficult to see an error in Dartmouth v. Woodward without reinventing the background institutitons of our society in ways that would surely be pernicious. If corporations didn’t have *any* rights, they couldn’t sue for breach of contract or demand due process from the government. Nor could universities, or unions, or hospitals.
The question is and always has been: what rights do corporate persons have and how can the state regulate them? Citizens United had produced a film called Hillary: The Movie and wanted to distribute it during the primary season. This may not be high value speech, but it’s eminently political. And if the state can regulate the speech of a company whose whole purpose was to produce a film tearing down a presidential candidate, then clearly the state has the right to regulate political speech by the press. Why censor Hillary: The Movie but not a 60 Minutes piece on George Bush’s National Guard service? Clearly they’re comparable. Much of what passes for analysis on Fox News and MSNBC could be classed as electioneering communication as well, and those are both corporations. There’s just not a principled way to make the distinction stick.
And that’s the rub: many people fear that this will open the floodgates of private money in politics. But the floodgates are already open, and asking the Supreme Court to pretend otherwise is the real joke. As a society, we’ve decided that having money in politics is good, because it allows challengers to unseat incumbents. I think a good compromise is to force corporations to seek shareholder approval for their campaign contributions and political advertising. I think this is the kind of thing we should do to quell discontent, not the sort of thing that will make a big difference. Business interests and unions have always been a big source of cash in politics.
Nor is this, perhaps, such a bad thing. Prawfsblog offers this paper by Jill Fisch, which uses Fed Ex to give a more nuanced account of the role an ordinary business might play in developing and spending political capital in order to influence pertinent regulations. Tyler Cowen posted a now-famous economics paper titled “Why is there so little money in politics?” It’s a good question: if corporations or private individuals really could buy policies worth billions of dollars, they’d spend a lot more than they do. Instead, they spend about the same amount each year, adjusted for inflation and growth:
From 1912 to 2000, presidential campaigns have accounted for approximately the same, small fraction of GDP. This pattern suggests that the private benefits bought through the campaign finance system are not an increasing problem for our economy.
Given what a truly corrupt politician might be worth, that seems like a strange piece of data, but that’s just because our popular culture likes to pretend that all politicians are unprincipled prostitutes. They’re not, and even if they are often self-serving, they generally recognize that while money is a necessary ingredient in any campaign, it’s still more necessary to satisfy your constituents by supplying public goods and regulating public evils.
There are a lot of problems with democracy in the US. The amount of money spent on elections is certainly a symptom of some of those problems, but it’s only a symptom. Compared to human apathy, corporate citizenship starts to look pretty good. The root causes are much deeper than corporate personhood: the problem is that natural persons have become so disillusioned that they act as if their only duties as citizens are discharged at the polls. That’s the problem with our centralized and bureaucratized state system: the only way to steer the machinery of the state is to join a coalition (like a party, a union, or an interest group lobby) that mimics the state’s size and procedural efficiency.
Edited 3/6/08: An earlier version of this piece claimed that Citizens United was the same group as Citizens United Not Timid. This confusion is so common that Citizens United had to sue for trademark infringement. Still, I regret the error.
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