Kent Greenfield has argued in The Washington Post and The Huffington Post against an amendment to end corporate personhood. Greenfield, a professor at Boston College Law School, is the author of The Myth of Choice: Personal Responsibility in World of Limits. He makes, with all due respect, many errors in his arguments. His comments from “Why Progressives Should Oppose A Constitutional Amendment to End Corporate ‘Personhood’ ” are in block quotes.
[Kent Greenfield]: Obviously, progressives disagree with conservatives over the Supreme Court’s now-infamous decision in Citizens United v FEC. Conservatives laud the ruling’s protection of corporate political expenditures and believe nothing needs fixing. Progressives, on the other hand, almost universally decry the Court’s ham-fisted, activist ruling and rue its implications for our democracy.
[RootChoppervst]: Greenfield is incorrect to argue that the corrupt Citizens United decision pits conservatives against progressives. This decision pits corporatocracy and/or plutocracy against the people. Progressives, conservatives, including Next Gingrich at one point, Tea Party reactionaries and Occupy radicals can all agree that superPACs and dark money in politics is undermining the will of “We the People.”
[KG]: But there is a lot of disagreement among progressives about what to do.
[RC]: This is because progressives have the tendency to disagree about what to do regarding any issue. Purposely dividing the people on how best to abolish corporate personhood and overturn the Citizens United decision only works to the advantage of the corporations and the elites who run them.
[KG]: Case in point: I engaged in a battle of the op-eds this past weekend, the second anniversary of the Citizens United ruling. In the Boston Globe, Congressman Jim McGovern and lawyer Jeff Clements described their proposed “People’s Rights” constitutional amendment, which would overturn Citizens United by limiting constitutional protections to “natural persons” only. Their amendment is one of several being pushed these days building on the notion that corporations are not people. Meanwhile, in The Washington Post, I argued that such a constitutional amendment was a bad idea. Clements, the author of the new book Corporations Are Not People, has since responded on his blog, saying that my Post editorial was “way off-target.”
This is more than just an intellectual spat between lawyers. If progressives are split, the benefactors of corporate money will have an easy job obstructing any meaningful reform. If progressives can agree on a remedial strategy, we might have a shot at getting something done.
[RC]: The problem with this is Greenfield’s (and Clements’) misunderstanding about the reasoning used behind the flawed Citizens United decision. Corporate personhood had nothing to do with this decision. If we’re going to overturn Citizens United, we have to overturn Buckley v Valeo. To do that we need an amendment that makes it clear that money is not speech.
[KG]: So let me say why progressives should not spend our resources on an anti-corporate-personhood amendment.
An amendment is an overreaction.
Though Citizens United was about free speech rights, and the main concern of its opponents is about the power of large, for-profit corporations, the People’s Rights Amendment would end all constitutional rights for all entities that are not natural persons. So a private university — not a natural person — could be required to start classes with a prayer. The government could prohibit The Huffington Post — not a natural person — from printing columns critical of the president. The FBI could seize the servers owned by Google — not a natural person — without a warrant. Each of these would be a clear constitutional violation under current law, but would be permitted under the People’s Rights Amendment.
[RC]: This depends upon what is in the amendment, what specific language for any proposed amendment. Greenfield is referring to amendment language that ends the fraud committed in the 19th Century that initiated the Supreme Court’s granting of rights to property (corporations). Ending corporate personhood would “end constitutional rights for all entities that are not natural persons;” that is true. Eliminating those corporate rights is needed for a wide variety of reasons that were elaborated in Thom Hartmann’s Unequal Protection. From unequal protection of the Commons to unequal taxation, corporate personhood is not only based upon a fraud; it has wrecked havoc upon the American political landscape. It’s been pointed out here that by ending corporate personhood, we would be closing a loophole that could have been — and might someday be – used to allow corporate money to buy election results. He is correct to argue that ending corporate personhood “is an overreaction,” and that will be addressed below and above.
Greenfield’s concern about what HuffPo, or any other agent of the free press could publish or not is a distraction. The free press is protected as a unit by the 1st Amendment. He is correct to assert that the FBI could seize servers owned by Google without a warrant if corporations have no rights. Protections of privileges for artificial persons would have to come from Congress or state legislatures, but they would not be based upon Constitutional rights that are the reserve of natural persons. We hold these truths to be self-evident, that no corporations are people and they were never endowed by their creator (the governments granting corporate charters) with any rights whatsoever.
[Editor’s note: All the encroachments described by Mr. Greenfield here would still constitute violations of individual rights — religion, press and the Fourth Amendment right to privacy enjoyed by the people who store their personal information on Google’s servers. In fact, quite the opposite of these dire predictions would be true, the government would be empowered to prevent discrimination more than it would be empowered to discriminate.]
[KG]: Groups are important to progressives.
The notion that constitutional rights are only for people is dangerous to progressive ideas. The freedom of association is constitutionally protected, and ought to be, because humans are social animals — we organize ourselves in groups to self-identify, to amplify our speech, and to gain and provide mutual support and encouragement. We join the PTA and the Masons; pray in churches, synagogues and mosques; contribute to Planned Parenthood and the National Wildlife Fund; pay union dues to the AFL-CIO or NEA. If constitutional rights were for natural persons only, none of these groups would have constitutional rights, and that would cost us all dearly.
[RC]: Again, protections for group privileges would have to come from legislation. We do not have to protect religious groups because, like the free press, their rights are protected by the 1st Amendment. The process of abolishing the rights of groups, i.e., corporations, unions, etc, would have costs and risks, but the benefits would far outweigh those costs, and those concerns (“costs”) could be minimized by appropriate legislation.
[Editor’s note: “Association” and “assembly” are not the same thing. Freedom of assembly is about crowds gathering in physical spaces, like Occupy Wall Street in Zuccotti Park. Legal associations are more permanent, continuing to exist even after all the members have gone home. Their is no Constitutional right to legal association. Ben Franklin wrote extensively on associations (pdf) and would have found a way to insert them into the original Articles if he thought the commerce clause and the Tenth Amendment were insufficient.]
[KG]: Think about it. Many cases important to progressive ideals were brought by groups, associations, and corporations, not by natural persons. The case that saved Roe v. Wade in 1992 was Planned Parenthood v. Casey. NAACP v. Button was a crucial case in the civil rights movement. When Nixon wanted to quash the publication of the Pentagon Papers, it was the New York Times that fought to protect the public’s right to know, in New York Times Co. v United States. Rumsfeld v. FAIR, a case that challenged the Pentagon on Don’t Ask Don’t Tell, was brought by a non-profit corporation (which I founded and led), which had as its members other non-natural “persons” (universities, law schools, and law school faculties).
[RC]: One of the reasons that corporations were deemed artificial persons hundreds of years ago (pdf) is so they could sue and be sued, enter contracts and be taxed. Ending corporate personhood will sever them from constitutional rights, but they will still be artificial persons and still be able to sue. Greenfield does not address which constitutional amendment protects the right to sue, because there isn’t one. His concern here is specious.
[KG]: Individual rights are not enough.
Some have argued that it would be okay to cut off rights to groups, because individuals would still have rights. We do not need to worry about, say, the New York Times as long as its reporters can exercise freedom of the press. (The People’s Right Amendment asserts that it should not “be construed to limit the people’s rights of … freedom of the press,” but I presume this means the rights of individual reporters rather than newspaper companies, since those companies are not “natural persons.”)
[RC]: Greenfield presumes wrong. If the loophole used in the 14th Amendment is properly closed, then this would become a moot point. We’ve made the case here previously that individual rights are enough!
[KG]: But this answer is unsatisfying. If the New York Times had no constitutional rights of its own, it could be prohibited from printing or distributing its newspapers. Its website could be shut off. Its printing presses could be seized. It could be prohibited from paying employees. The fact that individual reporters would still have rights to distribute homemade handbills or orate from a soapbox would mean little.
[RC]: The NY Times does have constitutional “rights of its own.” It’s called the 1st Amendment.
[Editor’s note: This argument assumes that the newspaper came before the journalist. That is wrong. Anyone can print words on paper. It’s the craft of journalism practiced by the reporter that turns an average publication into a newspaper.]
[KG]: A similar analysis works for other groups. If universities can be prohibited from teaching classes about Sharia law, it means little if professors can only teach such classes on their own time in their own living rooms. If Planned Parenthood (and other health care organizations) can be prohibited from performing abortions, it means little that individual women have an abstract right to terminate their pregnancies.
[RC]: Again, these concerns, if in fact they’re legitimate, could be taken up by appropriate legislation.
[Editor’s note: Once again, these imagined consequences are violations of individual rights or the lawful contract established with the granting of the original charter (see Dartmouth). And some state legislatures are currently trying to regulate abortion clinics and planned parenthood out of existence and Citizens United is hardly protecting them now.]
[KG]: “Personhood” is a red herring.
The main dissent in Citizens United was penned by now-retired Justice John Paul Stevens. He appeared on Colbert last week and was asked about Citizens United. He admitted that, yes, corporations are legal “persons” for some purposes. But how can that be? How can he believe corporations are “persons” but should not have the power to spend limitless amounts on elections? Because personhood is neither here nor there in constitutional analysis. Stevens clarified in his interview, as he did in his dissent, that the constitution sometimes protects “persons” and sometimes not. In other words, the outcome in constitutional cases does not depend on personhood but on whether protecting artificial entities benefits real people.
[RC]: In that interview with Colbert, Justice Stevens said, “as with natural persons as well as corporate persons, some have different rights than others do. The same rights don’t apply to everyone in every possible situation.” He’s not making a normative statement; he’s describing the status quo that evolved over a history of case law where various Supreme Courts have granted corporations rights over the last 123 years by jumping through the loophole in the 14th Amendment. Our normative argument is that artificial persons were not the subjects of the bill of rights, and the process of granting corporations rights has been fundamentally corrupt and a misuse of the 14th Amendment. It’s true, corporations have some rights and not all human rights, but that does not mean that they deserve these rights.
[KG]: Progressives once understood this. One of the judicial ancestors of Citizens United is a 1976 case about a Virginia law prohibiting pharmacies from advertising prices. The Court struck down the law, in effect guarding the rights of businesses to advertise in order to protect their human customers’ rights to receive information they needed. The personhood or non-personhood of the pharmacies was a non-issue. It is worth reminding current critics of Citizens United that the Virginia pharmacy case was brought by Public Citizen, the consumer rights group co-founded by Ralph Nader.
[RC]: Virginia Pharmacy Board v Virginia Consumer Council (1976) was one of the last SCOTUS decisions that added to the list of actual rights that corporations have been grated. Greenfield is making a corporate rights advocates’ case here, where critics of corporate rights would have argued that advertising pharmacy prices is a privilege and consumer’s need for relevant information weighs more than the professional standards of the Virginia Pharmacy Board. Granting corporations 1st Amendment rights has led to Exxon/Mobile running propaganda describing how good horizontal slick water hydrofraturing gas drilling and the X-L pipeline are for America. If they did not have the “right,” as granted by that Supreme Court, to advertise anything they want, if their advertising were a privilege instead, then the government could limit and frame what is acceptable for advertising (consumer information about products and services) and what is not (propaganda about values, about ballot issues, about candidates, about anything corporations want the American people to believe.
[KG]: A constitutional amendment distracts from remedies that are targeted, possible, and effectual.
Any proposed constitutional amendment faces an uphill battle. To gain passage, an amendment has to be endorsed by a two-thirds vote in both chambers of Congress and ratified by three-fourths of the states. Most amendments fail: while scores are proposed each Congress, we have seen only one succeed in the past 40 years. (And that one, a minor rule about congressional salaries, took 200 years to be ratified!)
Meanwhile, there are a number of good ideas worth pursuing to limit the power of Big Money in our politics. Most of these ideas could come through legislative or regulatory enactments requiring no more than a majority vote in Congress and a presidential signature. If we focused our energies and resources on these legislative initiatives rather than on a constitutional amendment, we might achieve meaningful change.
[RC]: Greenfield is actually correct here: getting an amendment passed in Congress and ratified by 3/4ths of the states is immensely difficult. There are legislative answers to Citizens United just as James Marc Leas argued. However, to overturn Citizens United as permanently as possible, we need an Amendment to overturn Buckley v Valero and state that money is legal tender only and not any rights defined in our Constitution. In order to close off the logic of corporate personhood the next time the Citizens United propaganda group, or any other corporation aiming to grab power, stands before the SCOTUS, we also need to end corporate personhood now. The disadvantages of ending corporate rights are far out numbered by the advantages to the American people.
More important, legislative solutions are a recipe for a constitutional crisis. As Leas pointed out, the SCOTUS is guilty of a power grab in ruling on election law regulations. Congress has that power, not the SCOTUS, and legislation would only create a conflict between those two branches of government. It’s up to the People to step forward and put the power back to the branch where the Framers placed it, in the People’s representatives on Capital Hill.
Finally, in a discussion with David Cobb, field organizer for Move to Amend, in August of 2011, the problem of the Equal Rights Amendment was discussed. What if we can’t get 3/4ths of the states to ratify an amendment. His response is that woman’s rights have advanced in the U.S. enormously without passage of the ERA; and, if we fall short in our efforts to deny property (corporations) rights, we will likely make progress on many other fronts. Given the power that corporations have and the incestuous, corrupt inter-relationships between government officials and private corporate actors, the efforts to end corporate personhood with a constitutional amendment are necessary, important, possible and targeted. How effective these efforts become will depend, in part, on peoples’ willingness to set aside differences in ideology and values to restore democratic principles to our Republic. It would help if Kent Greenfield would publicly announce that he changed his mind and now supports efforts to overturn Citizens United with an amendment to the Constitution that states in no uncertain terms that 1) corporations (property) are not the legitimate subject of any human rights, 2) money is not speech and 3) Congress has the power to regulate elections.