Dick Booth, former Tompkins County, NY, legislator, upon learning that the Tompkins County legislature had passed a resolution calling for Congress to overturn Citizens United, sent a letter with an impassioned defense of the Citizens United ruling and excoriated all those who are in favor of preventing legal fictions from enjoying both the privileges of limited liability and all the rights of citizenship. The problem with his missive is that every single one of his points is 100% wrong and denotes a complete lack of scholarship. The letter from Mr. Booth will be in block quotes with rebuttals directly underneath each item. To wit:
I have read the Abolish Corporate Personhood resolution that you passed the other night by a very large majority. I have talked to several of you re this particular resolution and/or at least one other resolution you may consider in the future with regard to reforming campaign finance rules (and I very strongly endorse campaign finance reform). I recommend that you vote to reconsider this resolution and then table it indefinitely.
Regarding this resolution, I have to guess that those who voted YES gave little or no thought to the enormously harmful impacts that would be created if the nation were to do what you recommend. Abolishing corporate personhood would mean, among many other things, that no corporation, large or small, would have any constitutional rights. I find it hard to believe that is what any of you would desire. My comments here focus almost entirely on constitutional implications.
Just because people disagree with Mr. Booth’s paranoia doesn’t mean they gave “little or no thought.” In fact, judging by the lack of merit in Mr. Booth’s arguments, it seems clear he is the one to have given “little or no thought” to his assertions. For instance:
The results of reorganizing the nation’s legal structures so that corporations had no constitutional rights would be truly profound and largely negative — seriously negative. Consider the most important industry in Tompkins County — education. Neither Cornell University nor Ithaca College would be likely to be a shadow of what they now are if they had no constitutionally protected rights regarding property, due process, equal protection, and speech (among others). IS THAT A RESULT MOST OF YOU WOULD FAVOR?
Cornell University was founded in 1865, Ithaca College in 1892. Even though the headnote from Santa Clara (granting legal personhood) was handed down in 1886, it would take many more decades for the notions of free speech and association to be applied to legal fictions as a separate right, apart from the individual rights of the membership. Until very recently, all institutional rights were recognized as extensions of the individual rights of the members. If what Mr. Booth says here were true, neither Cornell nor I.C. would be a shadow of their current selves right now.
Consider the large numbers of small businesses and not-for-profit entities that exist in Tompkins County, a very large percentage of which I am reasonably sure are organized as corporations. I seriously doubt that most of those hundreds of small corporate businesses and other corporate entities would exist if they had no constitutional rights to property, due process, equal protection, and speech (among others). IS THAT A RESULT MOST OF YOU WOULD FAVOR?
Mr. Booth does a lot of being “reasonably sure” and “seriously doubting” but there are no facts to back up this wild assertion. No corporate charter was ever granted to anyone, for any purpose, ever, on the basis of an expansion of First Amendment rights. All such creations are done so for the sole benefit of the owners/members who are exercising their individual rights through the new entity, but no new rights were ever created with the formation of a legal fiction until the activist Supreme Court inserted itself into Article I and Amendment X.
Consider just a brief sampling of possible results across the country if no corporation had any constitutional rights. No entity organized as a corporation that produces a newspaper or magazine would have constitutionally protected free speech rights — because, as most of you advocate, constitutional rights would belong only to human persons;
Newspapers are not protected by freedom of speech. They’re protected by freedom of the press. The human beings working for the press organization are exercising their individual rights through the journalism outlet, not the other way around. This argument assumes that the newspaper came before the journalist. That is wrong and flies in the face of the strict constitutional constructionism Mr. Booth surely favors.
AND no newspaper or magazine organized as a corporation would have rights under the Constitution to prevent its property from being seized, without compensation, by a governmental entity interested in closing down that newspaper or magazine because of the messages it contains — because, as most of you advocate, constitutional rights would belong only to human persons. (If either of these possibilities became a reality for corporate owned newspapers and magazines, it is unlikely that any entity could become a powerful voice in gathering, disseminating, and interpreting “the news.”)
Even if legal fictions lost access to the First and Fourteenth Amendments, the individual owners and members would not. Closing down a newspaper “without compensation” serves no public purpose that could justify the violation of the individual rights of the owners or members of any organization. It would still be unconstitutional. And if Mr. Booth is so concerned about unconstitutional power grabs by the government, why is he not concerned about the unconstitutional power grab by the Supreme Court? This is disingenuous at best.
— No other corporation, (large or small, profit or not-for-profit) would have rights under the Constitution to prevent its property from being seized, without compensation, by a governmental entity interested in acquiring the corporation’s assets for the benefit of the larger community.
— No non-for-profit entity or educational institution organized as a corporation would have rights under the Constitution to prevent its property from being seized, without compensation, by a governmental entity interested In preventing that corporation from promulgating messages the government believes are not in the public interest.
— No religious institution organized as a corporation would have rights under the Constitution to prevent its property from being seized, without compensation, by a governmental entity interested in preventing that institution from promulgating doctrine that the government finds is not in the public interest.
— No abortion clinic organized as a corporation would have rights under the Constitution to protect its assets from government seizure without compensation, either because the government wants those assets for the public or because the government does not want the abortion clinic to provide services to the public, OR both.
Grade: Big Fat Lie!
This one deserves special attention as it’s designed to scare women on a subject of dire importance to all families generally, and particularly in the wake of the nationwide GOP-led war on women in recent years. As stated above, nothing has changed or will change with respect to eminent domain. In fact, if anything, that genie was let out of the bottle in Kelo v. New London, yet another form of judicial activism, this time, endorsed by the liberals on the court (go figure!). And in all likelihood, Mr. Booth actually agrees with that decision, given his passion for land-use issues. So much for consistency.
— No labor union organized as a corporation would have rights under the Constitution to prevent its property from being seized, without compensation, by a governmental entity, either because the government is interested in acquiring the union’s corporate assets for the benefit of the larger community, or is interested in preventing that union from effectively representing its members, OR both.
This is a particularly specious argument to make in light of the aggressive anti-union actions at the state level across the country. If those Constitutional protections existed now, the Wisconsin governor would not have been able to demolish collective bargaining rights for public sector employees (still an individual right, no matter who one works for). New York is already a “right-to-work” state in which workers have few, if any, protections from the encroachments of both government and big business and THIS is the argument Mr. Booth makes? He can convince himself all he likes but nobody in the labor movement will be fooled by this inanity.
[Correction: Though there have been many encroachments on workers rights in New York State, it is not among those considered “right-to-work” States.]
— None of the entities mentioned in the previous items would have rights under the Constitution to prevent unreasonable searches and seizures of their buildings, papers, and effects being undertaken by government officials, because (as you have recommended) the protections of the Fourth Amendment would not apply to them.
The Fourth Amendment would still apply to the individual members and their personal property and information. Overturning Citizens United would not allow Alabama to seize the records of the NAACP (NAACP v. Alabama, in 1958, it should be noted, is pre-Buckley), nor would it suddenly turn Democrats and Republicans into allies in the quest to stifle free speech or seize property. It would change a few things, like allowing OSHA to resume surprise inspections of workplaces to enforce workplace regulations, but those inspections are limited in scope and cannot infringe on individual rights, like opening personal lockers or inspecting financial records. There is a balance between individual liberty and the public good that is ignored at every step in the pro-Citizens United lobby. We have a republican form of democracy, not a libertarian free-for-all, though you wouldn’t know it from the arguments Mr. Booth continually makes in this re-tread of a missive.
This list could go on to extraordinary lengths. DO MOST OF YOU FAVOR ALL OF THESE RESULTS, OR ANY OF THEM?
This list has already gone to extraordinary lengths and none of it – none of it – is convincing in the slightest. And using all-caps doesn’t make it any more convincing. If Mr. Booth is really so concerned about unconstitutional land grabs and violations of sovereignty, maybe he should devote less time to preserving the power of corporations over the citizenry and more time to fighting against the repeated violations of nearly every treaty the United States has ever signed with nearly every Native American nation within our borders. If he’s really this concerned about the relationship between free speech and protecting women’s health rights, he should be fighting against muzzling free speech on reproductive issues in the classroom and the doctor’s office. And if he’s really so concerned about labor unions, he should be fighting against muzzling free speech via right-to-work laws and the many state-level initiatives to outlaw collective bargaining.
But Mr. Booth is obviously not concerned about these things, as his paranoid, specious arguments make clear. As a final proof, let Mr. Booth show all those instances wherein these dangers did come to pass before legal fictions enjoyed all these constitutional rights. Where is the legislation that seized property without compensation prior to Santa Clara in 1886, or stifled an association’s free speech prior to Buckley in 1977? Why did it take a civil suit to bankrupt the Ku Klux Klan if the government had the power prior to Buckley? When did it ever happen in American history?
The simple answer is: never. And that’s why these are specious and paranoid arguments to make. Mr. Booth is essentially saying, “let’s not fix the horror we have before us now because the imagined horrors that have never happened, and are unlikely to ever happen, are much worse.” Even if that were true, which it isn’t, it certainly wouldn’t denote scholarship on this issue. But it does provide a healthy dose of paranoia and fear-mongering. On that point for Mr. Booth, mission accomplished.