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