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On corporate "persons" and the contraction of voting rights

Citizens United (2010) has happened. McCutcheon was decided recently. We can expect a decision in the Hobby Lobby case before June. We seem to be living through a new civil rights revolution, one in which the Supreme Court continues to aggressively expand the retinue of rights associated with corporate personhood. At the heart of this revolution is a point that I think needs closer examination, a point that exposes an important contrast and potential injustice.

If one begins with the argument that the Court in recent cases like Citizens United evinces a continuum of programmatic commitment, in other words that conservative elected officials increasingly tend to act like conservative judges and justices and vice versa, then we can constructively compare Justice Kennedy’s opinion with recent attempts at the state level (in North Carolina and elsewhere) to limit voting rights. Despite many important surface-level differences, at the deeper level of ideology, we find continuity.

In the Citizens United dissent, Justice Stevens makes this claim:

Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters (2).

The last sentence here should interest us most. Kennedy’s majority opinion in Citizens United grants free speech rights to entities – “persons,” if one follows the thread of his argument – that have controlling interests well outside the geopolitical boundaries of the United States. This expansion happens at precisely the same moment as the contraction of voting rights at the level of states: shorter polling hours, more limited early voting days, stricter registration requirements and so forth. It’s not just that a civil rights revolution is happening in service of the interest of corporate “persons,” but that the actual advances of the real civil rights revolution are being rolled back. Corporations don’t need state identification or birth certificates to have their “speech” (i.e. money) protected by the First Amendment; if the Hobby Lobby case is decided in a similar manner, multinational corporations will also have religious “rights” accorded and protected by the Constitution as well. At the same time, citizens who are actual persons find their capacity to “speak” by means of the vote increasingly constricted.

To be sure, as Justice Stevens notes, corporations cannot vote. But as persons, they have interests. They can “speak” in the name of those interests by means of contributions to political causes. According to the argument of the Hobby Lobby lawyers, moreover, they have freedom under the free exercise clause. By means of these freedoms, they can alter the political terrain. As corporate “persons,” moreover, they don’t have to be citizens to enjoy these freedoms. Actual citizen-persons in contrast increasingly have to endure onerous and arbitrary regulations on the one unique capacity they retain. Corporate rights are expanding while the rights of voters are contracting. These are not unrelated developments: they have to be understood as a single – and singularly unjust – agenda.

About the Author

Robert Geroux is a political theorist.



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I'm glad someone is following this story, though I'm not persuaded that showing my drivers license at the polls is actually "burdensome." I do think it's a measure designed to address a scandal that doesn't exist (i.e., voting fraud), and a calculated distraction from more serious problems our nation faces.

I think the notion that money = free speech is a flawed premise. Money is money. It buys access to media that allows that speech to be heard "louder" than other speech. 

It might be useful to point out that the Equal TimeRule that applies to broadcast media re political candidates is still in force, but it is easier to get around it. As I understand it, hosting candidates in a "talk show" format on MSNBC or FOX, or covering the live event of a particular candidate as news are some ploys that allow broadcasters to promote specific candidates.

The old Fairness Doctrine is no longer a law or requirement for any media outlets (as far as I know), though some publications and broadcasts still take a stab at it within reportage, analysis, and opinion. 

Corporations being defined as entities with the same rights as individuals strikes me as another flawed premise. By definition, a corporation is NOT an individiual. However, I think would have fewer objections to this definition if the courts determined that corporations had the same responsbilities as individuals. For example, I, as an individual, could go to jail if I didn't shovel my sidewalk and someone slipped and injured himself.

I await the happy day when everyone at GM is rounded up and jailed for failing to fix that gizmo in the ignition that killed people.

This post singularly fails to grapple with any of the difficult issues that would arise immediately if you actually meant what you say, about corporations not having constitutional rights.

If you knew what you were saying, you would be applauding the following: 


1) Government seizes assets of churches. Churches sue. Government automatically wins, because no "person" had their religious freedom or property taken away--just the corporate entity called a "church."

2) Government shuts down New York Times. New York Times sues. Government automatically wins, because New York Times is a "corporation" and doesn't have rights.

Anyone with a little effort can imagine other really bad scenarios that could occur if corporations actually weren't able to possess any rights against government action. Of course, the "corporations are not persons" argument is rarely made by anyone who has thought about the problem at a level that might be discussed in a high school civics class. 



Wasting Time --

Your argument is a straw man one.  Nobody here is arguing that corporations have no rights.  We are arguing that a corporation is not a person, therefore, it is impossible for a corporation to have *personal* rights.  Dogs and cats have the right not to be tortured, but those are not personal rights.  Corporations have the right not to have their headquarters bombed, but that is not a personal right either. 

Wasting Time's scenarios fail to account for the fact that the press and religious institutions were long ago given special status by the U.S. constitution, and their rights and responsibilities have been rather clearly delineated, even if they have evolved or changed over time.

Money-making corporations and lobbying organizations or non-profs fall into a different category that have not, until recently, been recognized as having individual rights.

I think someone could argue that those entities should have rights, though I don't find, as noted above, the current arguments particularly persuasive.

According to the argument of the Hobby Lobby lawyers, moreover, [corporations] have freedom under the free exercise clause. By means of these freedoms, they can alter the political terrain. As corporate “persons,” moreover, they don’t have to be citizens to enjoy these freedoms.

The claim in the last sentence I've quoted here, may depend on the specifics of a ruling that is in Hobby Lobby's favor.  One commenter here has suggested that the ruling might make a distinction between closely held corporations like Hobby Lobby, whose owners are relatively easily identifiable, and publicly held corporations whose ownership can be extremely dispersed.

Thus, perhaps a further distinction could be made between a closely held company owned by the Green family (presumably the Greens are US citizens), and a closely held company doing business in the US owned by, say, Carlos Slim, who is not an American citizen, and who reportedly sends his children to Legion of Christ schools and thus might (or, for all I know, might not) hold devout views on the distribution of contraception.


The "corporate person" is a legal fiction. Its main purpose is to make it possible for corportions to borrow money and to sue and be sued. If I, for example :), buy $1,000,000 worth of corporate bonds, and the corporate officer whose name is on the bonds dies, the corporation still owes me the interest because the courts will pretend it was the corporation, not its officer, who made the deal with me. And if the corporation officers want to claim it doesn't owe the bondholders anything, we can sue it.

The trouble with the Roberts Court is that a majority of justices don't know the corporate person is a fiction. They expect Santa Claus to eat the chocolate chip cookies they leave out for him. And they expect a corporation to have "eyes, hands, organs, senses, affections, passions, fed with the same foods, hurrt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer." If you prick a corporation, they expect it to bleed.

If they don't, they are dissembling for undemocratic purposes and counting on us to be fooled.

The argument is made, as it seems to me by Wasting, that corporations should be treated as persons since they are composed as persons.  But corporations exist to protect real persons, managers and stockholders, from liability.  To make a corporation a personal entity composed of persons, take away limited liability and that makes corporate personhood more real.

Well, then you have JP arguing not only that corporations are persons but wants to divide this concept into two parts:

- public corporations - have some rights but not personal rights

- privately held corporations - meet and have the same rights as a * person*

Unfortunately, we have experienced the whims of privately held corporations since the Gilded Age....the biggest issue for democracy, for full participation in the benefits of the economy, for a rebalance of the continuing disparity between the 5% and the 95%, lies not in increasing any notion that a privately held corporation (much less a pulicaly held one) is legally a *person* with all of its rights.

There is an interesting article in today's (27Apr) NYT Magazine about efforts to extend standing as "person" to non-human animals.  It includes a summary of Somerset v.Stewart and Lord Mansield's crucial decision to recognize Jameas Somset as visible befoe the Law.  It discusses - I thought well - factors that go into the Anglo-American legal traditions of personhood.

Probably a failure of my education but I hav a good deal more sympathy for personhood for chimpanzees, dolphin, and orcas wih respect  rights than I do for corporations.  Legal fictions to limit oliabilities?  OK, I can understand that arising as a lubricant for a market economy.  Extending to a righ of free speech through payment? Really, this is what - I know I am transposing documents - our Creator had in mind as an inalienable right of Man?


Mark L. 

A recent New Yorker cartoon: two men, dressed in suits and carrying briefcases, are walking past the Capitol Dome.  One asks the other: "So, how much speech did you rake in this week?"

As corporate “persons,” moreover, they don’t have to be citizens to enjoy these freedoms.

People possess rights, and when they associate in a group called a corporation or become part of a class called a citizen, they dont lose their inherent rights as people.  In the case of a citizen, they may gain a right to vote; but in the case a corporation are they supposed to lose their right to speak or act according to their religious beliefs?  I think not.  Btw, the citizen implications of this article are distinctly anti-immigrant.

Bruce, when a person joins a corporation, he gives up a lot of things. Often, the first one is the right to sleep late in the morning. On a more public level, he gives up his right to use the profits of the corporation as he may personally wish -- say, donating it to Catholic Relief Services -- and acquires a fiduciary duty to maximize profits for his stockholders, whether they need it or not. If the corporation has an economic interest in polluting a river, he must support the corporation's stretched reasoning for why a polluted river is better for people ("it creates jobs"), keep quiet or quit the corporation. He can, however, in the privacy of the voting booth, continue to vote for politicians who would strengthen environmental laws. So, yes, when one takes the coin of the corporation one does forego some rights he has as an individual. And that is enforceable in court.

What about the Catholic Church being a corporation?  The legal doctrine of corporation sole allows the local bishop to exert control over all Catholic institutions within his feudal domain.

As in most things for the hierarchs, what is sauce for the goose, is not sauce for the gander.

So ... do folks here favor abolishing corporations, together, I suppose, with all the wealth and jobs they generate?  I'd imagine that, once the liability shields are down, interest in investing will wane pretty quickly.

We can always try feudalism again.


Jim, is being concerned about corporations receiving "rights" of free speech (that really = backing candidates with $$) taking a pro-feudalism position? 

Jean - I dunno, but the comments here seem to be ranging well beyond funding candidates.  They seem to be attacking the very notion that a corporation is a legal person, which is not, at bottom, a political-funding construct but rather a legal-liability construct.  I'm in favor of the concept of limited-liability corporations, not only because I'd rather have my employer get sued than me, but also because I think there are a lot of good things that flow from limited-liability corporations, from jobs to tax revenues to making the world a better place via technology, medical advances, and micro-brewed beer, among many other products and services.  

Maybe this isn't a possibility anymore, but: if the Supreme Court has struck down legislation that restricts the ability of corporations to fund candidates, then isn't the remedy better legislation?

Jim, my concern with legislative solutions is that corporations that merge into larger and larger entities can hire more and more lobbyists to rig the legislative process in favor of the corporations. The court is supposed to to bring us back to sanity (or at least apply precedents and traditions to these questions) when the legislative branch fails to do so. 

I'd buy your argument about tax revenue if corporations weren't busy engineering big tax breaks for themselves or off-shoring revenue to make the rest of us pick up the tab for providing basic services for the nation. And if their medical advances were affordable:

Microbreweries have lost their shine for me since they installed one at the entrance to Tahquamenon Falls several years ago. I just wanted to cry. The place is now inundated with people in Sperry Topsiders and J. Crew sweaters pestering the Yooper barmaids for frosted mugs and griping about the bugs. I liked it better when the place was half deserted and if you wanted a beer, you could drive on down to Eckerman and get a Labatts at the Bear Butt Bar and a stick of jerky at the gas station.

Yeah, Labatts is a pretty tasty mass-produced ware.  Like virtually every product for mass consumption, it is brewed by a limited-liability corporation, in this case Anheuser-Busch InBev, the largest brewer in the world, based in Belgium (none of the top 5 brewers worldwide are based in North America).  If the headquarters locations of the brands we consume is an important consideration, then that might be a good argument for patronizing local micro-breweries.  I expect that Labatt's is still actually brewed in Canada, so at least buying Labatt's supports Canadian workers, although the same could be said about the workers at a Canadian micro-brewery, so the support-the-local-workers angle seems to be a wash.

Corporations seem to pay about a quarter of overall federal tax revenues in the US.  Individuals pay about two-thirds.  This is based on a pie chart in this policy paper and some quick mental arithmetic on my part.  



For quick scholarly debate on potential arguments from the bench in the upcoming Hobby Lobby decision, check out the Religious Freedom Project’s blog, Cornerstone:

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