Corporate Personhood & Citizens United

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Many on the left claim that Citizens United created/invented Corporate Personhood, and that this makes Corporations People, and this new power puts our political system "up for sale". They're wrong on all counts.

Corporation comes from "corpus" (to combine in one body), and the definition is to combine into a legal entity (person). So corporate personhood is actually redundant linguistically. Legally, Corporate personhood is a concept that goes to 1818 in the U.S., and in fact back to English common law (1189), and even further back to the Greeks and Persians (when it comes to inheritances). It is also applied to most free countries in the world. Those claiming Citizens United gave us Corporate Personhood are uninformed.

I have news for them, the rich could always buy politicians. What this fight is about, is whether the little guys can create corporations (groups/special interests) to combat the big guys or not. And if the alternative to free speech is some politically managed progressive speech (where all animals are equal, some are just more equal than others), I ask what does their dystopia look like. I've never met one that could build a reasonable framework for what their utopia would look like in under 2,000 pages.

Details

Corporate Personhood is the idea is that any group of people (e.g. corporation) retains the rights and responsibilities of the individuals involved in that group.

Oxford Dictionary defines a corporation as: a group of people authorized to act as a single entity (legally a person) and recognized as such in law [1]. So the idea of Corporate Personhood is actually redundant, or just a legal recognition of what a corporation is in the first place. Even the name "incorporate/corporation" comes from "corpus" meaning body -- thus the whole purpose of creating this "body" (grouping) was to allow them to enter into contracts in the first place (thus have protections/responsibilities, just as if they were a person/body).

So while a corporation is a construct (group, union, church, marriage, or company), it has to abide by the law and it is also protected by them, just like other entities/individuals. This way they can enter into contracts, they have civic obligations, and they get similar (but not identical) legal protection to individuals. If corporations/groups didn't have those rights, they wouldn't have those responsibilities (and liability for their actions). One goes with the other.

Now think if this didn't exist. A corporation could break a contract, and there would be no one to hold accountable, or worse, you could only go after some broke paid shill for liability, instead of the larger entity (which owns all the resources). And if the protections didn't apply to groups, then religious liberty wouldn't apply to churches (corporations), Unions and Newspapers wouldn't have free speech protection, married people would lose constitutional protections, you'd lose your 4th amendment protections whenever you went to work/school, we could never recognize Minority and Women owned corporations and provide them a leg up when competing for Government Contracts, and so on. This is kind of a big deal, that we want to keep in place, and was put in place, for damn good reasons, even if some people aren't informed enough to know better.

Didn't Citizens United ruling create this concept of Corporate Personhood?

No.

In the U.S. Law, Corporate personhood [2] as a legal precedent goes back to 1819, when the Supreme Court decided Trustees of Dartmouth College v. Woodward [3].

Justice John Marshall wrote the majority opinion that the sanctity of a contract (The Contract Clause) applies to public and private corporations. Or in this case, the State of New Hampshire, couldn't just invalidate a contract, and seize private/corporate property (a small College at the time, called Dartmouth), from the trustees, just because it wanted to, because if it could do that, then there was no property/liberty that was safe from legislative/judicial overreach. Thus your contractual obligations and protections applied similarly to individuals and groups (corporations).

That made the impact of this ruling fundamental to us not being a state run oligarchy (fascist/socialist country). The constitution protected free enterprise instead of the states power to nationalize whatever it wanted, and allowed corporations (including municipalities) to buy/hold/sell property, to sue and be sued, and they were treated like the people that made them. Thus these corporations themselves had tangible value (assets) that could be invested in and developed and financed.

Without this, private enterprise wouldn't have developed nearly as quickly, because who is going to invest in (finance or capitalize, as in Capitalism) something that can be dissolved or have it's assets taken away, at any time, by legislators or judges? And without this, you could not sue a corporation (including your municipality) for crimes or liabilities they did to you. Nor would the government have recourse for back taxes if you disolved the corporation, and so on. This was fundamental to our history, and being a free nation.

Yet even that ruling wasn't new, it was just new precedent for the U.S. The Constitution had offered that protection, this was just the first ruling that had challenged it, and lost. And the precedent goes back much further to English common law (1189). Even the Greeks and Persians had these concepts of Corporate Personhood for purposes of inheritances.

So the issue of Citizens United ruling conferring corporate personhood is a falsehood invented by the American Left, and perpetuated by a corrupt or ignorant media, and bought by uninformed followers thereof.

We should really be talking about corporate protections (rights)

What the left really means is that while Corporate Personhood has always existed in one direction (obligations and contracts), the idea of those applying those in the other direction (to protections and rights), is a bit newer than the ancient Greeks and Persians. But that doesn't roll of the tongue as easily, and still goes back a lot longer than their fraud (that this was a recent invention).

These issues started coming up more (in the commonwealth) during the Industrial Revolution (1760's on), and thus still predates the U.S., but the uniqueness of the Constitution, and our more hard-coded liberty protections therein, made Dartmouth v. Woodward a strong and broad ruling. (Constitutional protections applied to corporations as if they were persons: bam!). Without Constitutional Protections, English Common Law (applied to the commonwealth countries of UK, Canada, Australia, India, etc), was a little more piecemeal. The Companies Act of 1862 [4] had codified Corporate Personhood for them (so it's quite old in British law as well), but the House of Lords, Salomon v A Salomon ruling in 1896 [5] is what really firmed up the doctrine of corporate personality/protections for them. While in the U.S., Dartmouth v. Woodward was a strong foundation, it was Santa Clara County v. Southern Pacific Railroad Co (1886)[6] that reaffirmed it, and broadened the protections from just the bill of rights and contract protections, to also including the 14th Amendment protections to Corporations as well (citizens rights and equal protection clauses: so you can't just make arbitrary laws for one kind of corporation).

So even the subsection of Corporate Personhood that the progressive-left really cares about (their liberties/protections from government intrusion), is more a 19th century set of rulings, and applies not only in the U.S., but in the Commonwealth countries, and many other countries around the globe (just in a softer form, since their rights aren't as clearly codified as ours are). So the delusion that this was a new power/protection conferred by Citizens United [7], is not one that's repeated by anyone with a basic understanding of the law or history... at least not honestly.

So what is Citizens United about?

The whole CU (Citizens United) thing was because of a bad propaganda film by Michael Moore, called Fahrenheit 9/11.

It was released before the 2004 election to sabotage an election (funded by Unions), and that piece of corporate propaganda was tolerated just fine by the Courts and the left. There was no problem with corporations (Unions, 501c's, Corporations, Individuals) having free speech, and releasing it with the stated purpose of Sabotaging an election... even with blatant falsehoods and lies in order to mislead the electorate, was fine... as long as it was for a Democrat cause (like Trashing George Bush in favor of John Kerry).

Then before the 2008 election, a 501c (Citizens United) was doing the same thing back to Hillary Clinton (titled "Hillary"). And the DC court, acting as a front for the DNC, ruled that CU couldn't do exactly what "Michael Moore and Friends" (Corporation) had just done a few years earlier, because it was a 501c and not another kind of Corporation, Union or Church.

The Supreme's heard the case, and ruled "bollocks". CU had the same liberties/responsibilities in this case, as in the Michael Moore's case: the kind of corporation was irrelevant and messy. In the interest of fairness (justice being blind), the Court was going to either rule that ALL Corporations (meaning ALL Corporations: Churches, Unions, Marriages, Clubs, Public/Private, For Profit/Non-Profit, and so on), either should either have liberty (freedom of speech), and to be able to donate to causes or interests they cared about, or they should ALL lose that freedom. Since Corporate Personhood (and protection) had hundreds of years of precedent at this point, it was never really up for dispute on the Constitutional side of the court, to do anything but err on the side of liberty. The progressive side of the court wanted to allow the legislature more leeway in intruding on liberties of their political opposition, in the name of social justice, under the guise that they could balance fairness using unfairness.

The left lost it

Well, the left lost it's nut. It preferred the two rules version of justice. Where Unions and leftist individuals (like Soros) got legal protection under the law, but Churches, Charities and Private Corporations did not.

Since they knew they couldn't sell that message, "one rule for me, and one for thee", they spun the story into a dramatize fiction that they knew their gullible base would gobble up. Thus the invention that many mistake for fact. The left sold this fraud that:

  • (a) Justice Kennedy had invented a new concept called Corporate Personhood
  • (b) that corporations were now "People" (and how absurd that was?)
  • (c) that this new power meant that since corporations could outspend any individual, that all our politicians were now for sale

Only as we've shown, none of it was true:

  • The concept was 100's of years old
  • Corporations are not "people", they just have legal protections and responsibilities -- and the company/group (and the individuals in that group) just don't lose their constitutional rights, just because lefties want to crush them, without them being able to protest.
  • And Corporations could both ALWAYS or NEVER outspend individuals.

Or in other words, political parties are corporations. Special interest, charities, churches, Unions and every group/club/etc was a corporation, and could outspend an individual... but not ALL the individuals that were part of the opposing corporations. The balance to speech (and contributions) was more speech/contributions by the other side (called Liberty), it was not censorship and micromanaging who could say (or donate) what.

Thus the politicians were no more for sale the day after the ruling than they were the before. All that had changed is that instead of saying we should have our politicians, politicizing and micromanaging rules for free speech, that we should leave it to the people to decide for themselves.

If a corporation starts donating too much, and people don't like it, they can stop buying that corporations products (curing that problem). The alternative was another fairness doctrine boondoggle, with politicians trying to decide which groups could give what to whom. Some could give unlimited amounts, while others could give nothing. And like most regulations, most would be circumvented by the rich, leaving the small guy with less power. Given the choice between only the rich getting a say (by circumventing the laws), or everyone getting a chance, the Constitutional Conservatives chose protecting everyone's rights.

Since then we've had other rulings like SpeechNOW.org v FEC[8] that really opened the doors and basically said that campaign caps are a form of obstruction of free speech. E.g., if you want to contribute or buy an ad to announce your dissatisfaction at a politician/policy, then I can't suppress that without suppressing your free speech. The loud of mouth and dim of wit, rarely brings up that it was the SpeechNOW ruling that did more to campaign issues, and repealing CU is really destroying a lot more case law than just one case.

Many whine that CU allows the purchasing of our politicians. While that's nothing new, these rulings actually, this gives you MORE power. Now instead of George Soros or Koch, being able to out-purchase you as individuals, you can gang up with other like-minded folks, and create a corporation (charity/501c/etc) that will combat those rich bastards, in ways that you can't if we say corporations can't donate (don't have free speech), only individuals do. So their primary argument is bass backwards: CU protects the little guy's ability to fight the bigger ones.

Conclusion

I'm not a fan of corporation tainting politics. Especially because it historically favors statist-lefties (Soros, etc) over the libertarian-righties (like Koch), but I need a workable alternative legal framework before I'm willing to support it. And I've never heard that from the people that oppose these liberties/protections.

Sadly, I have met very, very few progressives that even understand the basics of what they're advocating when they rail against corporate personhood, corporate rights, or citizens united. I've found that those who read nothing on the ruling or the concept of the law behind the ruling, have the strongest opinions (based on their ignorance), but I've yet had one be able to explain what a world would look like if corporations were not granted the protections and responsibilities of the individuals involved in them. (What they want the world to look like without corporate personhood). I even help them by explaining the realities, and trying to get them to just focus on the subset problem they care about: Corporate Rights/Protections, or a subset of that, and just free speech/campaign contributions.

I often try to challenge those people, "give me your rulebook of all cases where someone should be able to donate and someone should not". Then I play, "poke holes in the colander" -- and demonstrate conditions they forgot, or ways I could quickly get around the intent:

  • Why should a Husband and Wife (a marriage is a corporation) be restricted from donating the same amount as if they were single (not in a corporation)?
  • Do they get to donate more if they're donating to opposing candidates and causes, why/why not?
  • Can a church or union tell their practitioners to donate with their own tithings/dues directly? Why/why not?
  • Where are the exact lines for explaining an issue to your constituencies/congregation, becomes criminal campaigning?
  • Where exactly are all the lines for where this progressive-free speech/contribution laws collide with religious liberty and the RFRA?
  • How should the laws be applied differently for Not-for-profits, 501c's, Churches, Unions, C-Corp, S-Corp, LLC, Marriage or Civil Union?
  • How do you handle people that donate to two different organizations that each have separate caps and overlapping causes?
  • And so on.

They usually get pissed at me for showing the absurdity of their intent, instead of pissed at their whole brain dead idea of trying to micromanage justice against an army of paid professionals and amateurs alike that will try to subvert every dumb rule they put in place.

The alternative of a CU ruling would be replacing free speech with the Obamacare of speech? Replacing 2,000 years of precedent with 20,000 page rulebook on what rights the state's willing to recognize depending on what group (corporation) you're in at the time. And for some reason, that seems implausibly messy, ridiculously impractical, and rife with corruption and abuse. So pick your battles wisely, or you'll add so much red tape that you Suffocate Liberty.

References

  1. Definition: http://www.oxforddictionaries.com/us/definition/american_english/corporation
    https://en.wikipedia.org/wiki/Corporation
  2. Definition: https://en.wikipedia.org/wiki/Corporate_personhood
  3. First Coporate Personhood Case, 1819 Trustees of Dartmouth College v. Woodward : https://en.wikipedia.org/wiki/Dartmouth_College_v._Woodward
    http://blogs.bu.edu/guidedhistory/law-and-religion/corporate-religion/corporate-personhood/
    https://www.law.cornell.edu/supremecourt/text/17/518
    http://legal-dictionary.thefreedictionary.com/Trustees+of+Dartmouth+College+v.+Woodward
  4. https://en.wikipedia.org/wiki/Companies_Act_1862
  5. https://en.wikipedia.org/wiki/Salomon_v_A_Salomon_%26_Co_Ltd
  6. https://en.wikipedia.org/wiki/Santa_Clara_County_v._Southern_Pacific_Railroad_Co.
  7. https://en.wikipedia.org/wiki/Citizens_United_v._FEC
  8. https://en.wikipedia.org/wiki/Campaign_finance_evolution_in_2010#SpeechNOW.org_v_FEC

Money buying elections?

CU-TooMuchMoney.jpg

There's a lot of scare mongering amongst the left on how much Corporate money is corrupting the political process. But for scale:

  1. we spend more on Halloween in one year than both side's spend on elections every 4 (502,000 elected officials in the United States)
  2. the gross majority of money going into elections isn't "corruption" -- it's only when it's targeted for a particular cause (that you disagree with), all the contributions are going to one side, and they sway a particular cause,, that most people think it is corruption. Do you really think cancer awareness money, or money going to protect civil liberties, is to corrupt the system?
  3. Democrat geographies dominate contributions: metros like DC, NYC, SF, Chicago, LA, Boston, contribute more than the rest of the country combined. DC, NY and California top the State's list.
  4. Corporate donations have been trending down since Citizens United ruling (not up), corps usually split their donations around 50/50 (dems/repubs), though more going to incumbents, and just looking out for anti-business proposals that hurt them (and their employees, investors and customers). So most of that can't be called corruption or buying elections
  5. Union contributions are about 90/10 dem/repub, showing that they're far more likely to advance crony capitalism and corrupting the process (and democrats) than Corporations are (assuming you think there should be any balance in democracy).
  6. Unions target things that help unions: anti-competion, anti-trade, anti-immigration agendas. (Remember, almost every anti-immigration program was created and funded by labor and progressives).
  7. Top 12 individual contributions total $177M -- $125M went to Democrats (≈70%), Koch is #10 and Soros is #12 on the list with $5M and $4M respectively, of the $7B raised -- though both are contributing more through their charities and organizations.
  8. In top organizations that contribute it's even worse, 8 of the top 10, and 16 of the top 20 are Democrat (1 of the remainder, National Organization of Realtors, is split evenly amongst party): most organized/special interest money goes to democrats.
  9. The large/small donation split is about 50/50 -- but again, Unions and special interest are over-represented in the large donations category, and both strongly favor Democrats. Most people don't think small donators are the problem.

So if money is the problem, and we should "follow the money", we should remember where the money is going (and for what causes). Especially big money, special interest money, and ones that's going to only one side (and not contributing to both). That means Corporations aren't the problem: they contribute relatively little, mostly to both sides, have more transparency, are not contributing in large blocks, and most corporations have counter-balances (Green Energy companies counter-balances Big Oil, Organic food movement counter-balances GMO's, and so on). Unions/Democrats/Special Interest issues are a far bigger problem: they contribute more, to only one side, their contributions are more opaque, they have a history of corruption and abuse, their agenda is anti-consumer/public, it comes in larger donations (though Obama and Sanders are exceptions) and there's fewer counter-balances.

But I know, I'm letting logic and facts get in the way of a democrat talking point

Written: 2014.07.01