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Real People v. Corporate “People”: The Fight Is On

by Doug Pibel

In 2009, Riki Ott was on the road for 252 days educating people about the dangers of "corporate personhood." That's the legal doctrine that says corporations have constitutional rights, just like human beings. She mostly spoke in academic settings, and there was some interest in the idea, says Ott, but not much.

Allen Michaan, owner of the Grand Lake Theater in Oakland, Calif., routinely exercises his free speech, in this case by sharing his reaction to the Supreme Court’s Citizens United decision. The well-known marquee faces the MacArthur Freeway (I-580). (Photo by David Gans) All that changed on January 21, 2010, when the U.S. Supreme Court handed down its decision in Citizens United v. Federal Election Commission. Now interest has skyrocketed, and Ott finds people eager to volunteer, to organize, to meet, to do anything to reverse the Court's decision.

Rallying Around Citizens United

Supreme Court cases are usually interesting to lawyers, scholars, and those directly affected. Occasionally, a decision makes the news for a few days before disappearing from the public eye. But sometimes there's a game changer-a decision that is so clearly wrong that it becomes a rallying point. David Cobb, former Green Party presidential candidate and longtime activist on corporate personhood, points to Dred Scott v. Sandford as one such decision. Citizens United, Cobb says, is shaping up as another.

The two cases are mirror images of error. In 1857, the Dred Scott decision said that a flesh-and-blood human being had no constitutional rights because he was black. On January 21, 2010, the Court, in a 5-4 decision, used Citizens United to declare that corporations-legal entities with no human attributes-have the same constitutional free-speech rights that humans have.

Dred Scott was the most notorious Supreme Court decision of its time. It was not a groundbreaking case-it simply took existing law to its logical conclusion. But it so clearly violated both logic and human decency that it forced people to look at what slavery really meant. Rather than legitimizing the status quo, as it was intended to do, the decision galvanized the growing abolitionist movement, and set the stage for the end of slavery. But it took the 14th Amendment to overturn Dred Scott.

Citizens United also takes existing law to its logical conclusion. And, like Dred Scott, it is generating tremendous discussion and debate-this time about corporate power and about what role, if any, corporations should play in the political process.

An ABC News/Washington Post poll taken February 4-8, 2010, found that 80 percent of Americans oppose the Court's ruling, including 65 percent who "strongly" oppose it. Opposition cuts across the political spectrum: 85 percent of Democrats oppose the ruling, as do 81 percent of Independents, and 76 percent of Republicans.

Within days of the Citizens United decision, groups formed to undo the Court's damage. They are pursuing remedies ranging from local ordinances to federal legislation to a constitutional amendment.

Why Should We Care

Citizens United says that corporations can spend unlimited amounts of money on political advertising. The Court declared more than 30 years ago that spending money is a form of speech, and that corporations had a First Amendment right to speak that way. But there were still limits, particularly in the area of political speech, where there is a century-old tradition of controlling the influence of corporations on the electoral process.

Citizens United takes away those limits. According to the Court, if human beings are allowed an unrestricted right to free speech, then corporations must have the same right.

The Court overturned a key provision of the McCain-Feingold campaign-finance reform law that prohibited corporate- and union-funded campaign advertising within 90 days of a federal election. Now, corporations can spend unlimited money influencing our elections right up to Election Day.

More than $5 billion was spent on the 2008 campaigns with the McCain-Feingold law in place. If that seems like a lot of money, wait for the next election cycle. Citizens United was a case about a corporation spending money to advertise and air a movie that amounted to a hit piece on Hilary Clinton. There are now no limits on the funding of that sort of negative campaign material. Any candidate who doesn't toe the corporate line can look forward to a flood of opposition cash.

The Humanity of Corporations

Just as Dred Scott was only an extension of existing law, Citizens United merely extends law that has been developing for a long time. But, like Dred Scott, the Court's conclusion makes clear to most people that the law is wrong. To say that a corporation with billions to spend on advertising is no different from a human being with one voice and one vote goes beyond what a large majority of Americans are willing to accept.

But this is the logical conclusion of the doctrine of corporate personhood, a legal theory that has been developing since the 1800s. Until 1819 the law was clear that corporations had no constitutional rights. In that year, the Court held for the first time that the Constitution applied to corporations.

The key moment was the 1886 case, Santa Clara County v. Southern Pacific, an unremarkable case about taxes on railroad property. One of the railroad's arguments was that the tax they were challenging violated the then-relatively new 14th Amendment to the Constitution-the Amendment that specifically overruled Dred Scott.

The railroad claimed that it had been deprived of "equal protection under the law," which is one of the guarantees of the 14th Amendment. The problem with the argument was that the Amendment said, "No state shall ... deny to any person within its jurisdiction the equal protection of the laws." There is nothing in the language of the Amendment that makes it apply to anyone but humans-it uses the words "person" and "citizen." The railroad's argument was that, since a corporation was a legal entity, it was rather like a person and, thus, should enjoy the rights granted by the 14th Amendment.

The Court made no official decision on that issue, and it is discussed nowhere in the Court's opinion. But in the headnotes (an unofficial summary of the case, not written by a judge), the court reporter, a former president of a small railroad line, quoted the Chief Justice as saying that the Court did not want to hear arguments on whether the 14th Amendment applied to railroads because "we are all of the opinion that it does."

A lawyer who based an argument on a headnote would be laughed out of court. Yet the headnote in Santa Clara has been treated ever since as a statement of the law. From that crack in the door, the Constitution has been broken open to gradually provide corporations more of the rights granted to humans.

We have gone from a Constitution that nowhere mentions corporations, let alone grants them rights, to Citizens United, which says that the Constitution cannot tell the difference between General Motors and a member of the general public.

Corporations are now a sort of super-being: They can live forever, they cannot be jailed, they have no conscience-yet they also enjoy virtually all the rights that humans have.

"[T]he Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense." But for the style, those words might have come from one of the activists working to abolish corporate personhood. They are actually the words of Justice John Paul Stevens, speaking for the four dissenters in Citizens United.

A Turning Point

Eighty percent of Americans agree with Justice Stevens, and they're ready to demand a return to common sense. The Community Environmental Legal Defense Fund (CELDF), founded by Thomas Linzey in 1995, has long championed abolishing corporate personhood. Citizens United "opens peoples' eyes," says Mari Margil, CELDF's associate director. "Very often we walk into communities and they've never heard of corporate constitutional rights, or they think it's an academic concept that's not important for their lives. So we have to show through stories, through examples, through breaking down how our structure of law came to be and how it works," says Margil. "Now Citizens United allows us to speed that process up a bit."

Riki Ott and David Cobb are working under the banner of Move to Amend, a coalition that launched its Web site the day the Citizens United decision came down. In less than three months, says Cobb, without coverage in a single mass media outlet, more than 77,000 people have signed the group's online petition for a constitutional amendment to reject the Citizens United ruling. Move to Amend now counts among its growing steering committee and key partners more than 20 progressive organizations, including Black Agenda Report, the National Lawyers Guild, Velvet Revolution, and the Women's International League for Peace and Freedom.

A partnership of Voter Action, Public Citizen, the Center for Corporate Policy, and the American Independent Business Alliance launched Free Speech for People (FSFP), also on the day of the decision, and also seeking a constitutional amendment. They worked with Rep. Donna Edwards (D-Md.) on the amendment she has introduced in the House, which restores the right of Congress and the states to regulate corporate spending. They have collected about 50,000 signatures on their petition.

John Bonifaz, legal director of Voter Action, has participated in FSFP presentations. "It's pretty clear that the public is ahead of Washington," Bonifaz says. "Washington, D.C. is looking at relatively modest reforms. The people around the country are very clear on the idea that corporations aren't people. They believe the Citizens United ruling is a threat to our democracy and to the First Amendment."

Still, all of these activists caution that this is a matter for the long haul. Amending the Constitution is not an overnight process-Dred Scott was accepted law for 11 years; the fight for women's suffrage was multi-generational.

Cobb says that although we've been told that this is a land of liberty, justice, and equality, people are realizing that it's not. "Rather than just get caught up in despair and anguish, we can make it that land," Cobb says. "We are going to force this country to live up to its promises and its best ideals. Are you with us?"

Doug Pibel wrote this article for Water Solutions, the Summer 2010 issue of YES! Magazine. Doug, managing editor of YES! Magazine, spent many years as an attorney. This article incorporates original material from David Cobb.

Interested?

Citizens United v. Federal Election Commission: Read the full text of the decision.

Recovering from Citizens United: Read updates on how we can get our democracy back.

 

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