On Corporate Personhood.

February 16, 2010, 5:11PM

By Nancy Price and David E. Delk

If you ask someone on the street whether "a corporation is a person," most laugh and say, "no, of course not!"

But the Jan. 21 5-4 majority decision of the U.S. Supreme Court found for Citizens United against the Federal Election Commission, and not only expanded the free speech rights of corporations under the First Amendment to spend unlimited money for or against candidates in elections, but in so doing, further entrenched the controversial legal doctrine of "corporate personhood" as the law of the land.

Why is a corporation a person with a voice?

Corporations are artificial entities created by people through charters for specific economic purposes granted by states and subject to state and federal laws. Throughout the 19th century, corporations unsuccessfully attempted through the Supreme Court to get out from under government regulation and accountability to the people. Then, finally, in 1886 in a case about taxes, the Court asserted without explanation that the 14th Amendment, ratified in 1868 to guarantee equal protection and citizenship rights to all persons born or naturalized in the United States, applied to corporations. Now, corporations had rights and protection under the Constitution. This at a time when women, Native Americans and most African-American men did not have the right to vote!

Finally, in 1976, almost a century later, the "corporate person" found its voice, when the Supreme Court ruled that corporate money equaled speech under the First Amendment (Buckley v. Valeo). Money began to flow into political campaigns. In response, state legislatures and Congress moved to enact laws to regulate corporate money in politics. But, now, the Roberts Supreme Court has overturned precedent, provoking a national cry of outrage that corporations can claim political and civil rights to overturn democratically-enacted laws and to elect candidates of their choosing.

  The Supreme Court first heard the case in March 2009. Citizens United, a nonprofit Virginia corporation, produced a film attacking Hillary Clinton, "Hillary: The Movie," during the 2008 primary elections and the Federal Elections Commission (FEC) had barred release of the film after concluding it was a corporate-funded electioneering advertisement, not a documentary as Citizens United claimed. Thus, under the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold Act), the film could not be shown within 60 days of the election. This is the ruling that Citizen's United went to court to challenge.

In a very unusual move at the end of June, the Court went out of its way to ask for new briefs and re-argument. In this way, the Court signaled it wanted to broaden the scope of Citizens United beyond what was argued in the lower court to examine the issue of corporate political speech more broadly in regard to the First Amendment and two important earlier campaign finance cases relating to state and federal elections.

Fast-tracking the case, the Court wanted briefs by July 31st, with oral argument set for September 9. More "friend of the court" briefs were submitted for this case than in the entire history of the Court.

Over the summer, newspaper editorials and op-eds warned that a broad ruling would allow corporations to spend unlimited amounts of money from their treasuries in elections for or against candidates, and would be a threat to democracy by allowing corporations to dominate the political process. In fact, the Supreme Court's recent decision overturned a century of campaign finance laws going back to the 1907 Tillman Act, the first legislation prohibiting corporate money in national political campaigns. Now, corporations, including U.S. subsidiaries of foreign multinational corporations, can spend unlimited amounts of money to buy the election results they want and manipulate politics and policy in their self interest. A crucial basis for this decision is that corporations, as "persons," enjoy free-speech rights.

Many would argue that the problem is not that corporations are people, but that it is just regulating money in politics. But as Jeffrey Clements, a lawyer, points out in "Beyond Citizens United v. FEC: Re-Examining Corporate Rights," since the 1970s corporations have aggressively used the First Amendment to strike down state and federal laws from "those concerning clean air and fair elections; to environmental protection and energy; to tobacco, alcohol, pharmaceuticals, and health care; to consumer protection, lottery, and gambling; to race relations, and much more."

What's even more important and less known is that once corporations became "people," their lawyers began to get more "rights" for them. In 1893, corporations were granted "due process" under the 5th Amendment; in 1906, they got 4th Amendment search and seizure protections; in 1922 they got the "takings" clause of the 5th Amendment in which a regulatory law is deemed a "takings." A fundamental doctrine of all free trade agreements allows multinational corporations to sue a national government for federal or state regulations that impacts or "takes" their profit-making abilities.

In anticipation of this ruling, a broad and deep coalition of groups came together to form the Campaign to Legalize Democracy with a call to amend the Constitution. One hour after the Supreme Court opinion was released, the Campaign launched the "Move to Amend" website calling for people to support an amendment to firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights. Other campaigns are focused solely on denying or limiting corporations First Amendment rights and limiting money in politics. These are only half measures.

A Constitutional amendment is needed to deny corporations personhood and thereby strip corporations of all constitutional rights conferred on them piecemeal by the Supreme Court over the decades. The Roberts Supreme Court upset the wrong precedent; it should have overturned the precedent giving human rights to a non-human entity, the corporation.

Since January 22, 2010, more than 55,000 people have signed the "Motion to Amend." Please join this movement to take back our Democracy. Go to www.movetoamend.org to sign the petition.

Nancy Price is Co-Chair of the Alliance for Democracy www.thealliancefordemocracy.org and member of the Steering Committee of the Campaign to Legalize Democracy. David e. Delk is President of the Portland Chapter of the Alliance for Democracy. For a brief introduction read, "Abolish Corporate Personhood," by Molly Morgan and Jan Edwards on the web.