…and what would need to happen to address those legitimate concerns.
To date, the strongest criticisms of abolishing corporate Constitutional rights has come not from the right, but from progressives. When they claim that abolishing corporate personhood goes too far, they are right, but they do not understand what would need to happen in the aftermath of abolition. This essay is an explanation of the legal environment in a post-abolition United States.
Immediately after the 38th state ratifies an amendment that abolishes corporate rights, the ONLY legal reality that would change is the Mc-Cain-Feingold, Bipartisan Campaign Finance Reform Act, which is still on the books, would go back into effect. The rights that corporations now have would become privileges, privileges that could be regulated, revoked and, what this post is primarily addressing, protected. However, nothing about these privileges would change until legislatures and Congress pass laws which will take time.
Corporations have not been endowed by our Creator with any characteristics, rights or privileges. Privileges are not inalienable. Driving an automobile on the roads is a privilege, not a right. It is a highly regulated privilege with dozens of rules and requirements defined by state laws. Break those laws seriously enough, and you will lose your privilege to drive, as you should. The same will hold true for some of the corporate privileges that are currently rights.
An excellent example for regulating a corporate privilege is their advertisements. Corporations should be allowed to sell their goods and services in the media. (Some people may take issue with this, but selling is not inherently evil or even morally wrong.) Corporations would not be allowed, if Congress grows the spine to forbid such behavior, to lie, to propagandize, to describe their ideas of what culture is, to do anything but sell their products and services. Television viewers in Upstate New York are being blasted by a barrage of advertisements by the oil and gas companies telling them how good gas drilling (the don’t refer to it as hydrofracturing or fracking) would be for the environment and the economy. Both of these claims are lies, and the $10 million that has been dedicated to these efforts by these companies is a campaign of propaganda to CONvince the people of NY to allow fracking in the state which currently has the technology banned.
The economies in the fracking regions become depressed; and, so far, there is no recovery after the gas companies move on to the next untapped shale zone. Housing values decline. Retail sales fall, and tourism falls through the floor. Fracking is BAD for local economies, but you would not know that listening to the corporate propaganda that they currently have the right to convey in the media. They claim that gas drilling is good for the environment because burning natural gas produces less carbon in the atmosphere than burning oil by-products does, which is true; but they do not describe what happens during the fracking process. When a fracking drill is pulled out of the ground, there is a significant release of methane, a greenhouse gas 20 times more damaging to the climate than carbon. They don’t mention this of course.
In a post-abolition legal environment, the NY State Legislature could pass laws forbidding any advertisements that do not explicitly and exclusively sell their products. If corporations proceed with propaganda anyway, they could lose their privilege to advertise on television in NY. This is just one of many examples one can think of regulating and revoking the corporate privilege to limited, not free, speech. Consider how car companies describe the useless, often reckless and wasteful driving of automobiles around just for the enjoyment of driving. There are many examples of corporations abusing their rights to free speech which could be outlawed in the aftermath of the abolition of those rights.
There are corporate rights in place that Congress could revoke because they made no sense in the first place. In Ross v Bernhard (1970) corporations were ordained (by six SCOTUS judges playing God) with the right to a jury trial in civil cases. First of all, how are citizens the peers of corporations? How can citizens be more qualified to judge corporations on the complex intricacies of the laws than judges are? Are they not more easily confused, or even hoodwinked, than a judge would be? This is a privilege that Congress could revoke in the aftermath of corporate rights because it never made sense in the first place. The very first right corporations paid high priced lawyers to win before the Supreme Court, the 14th Amendment right to equal protection under the law should also be revoked. A transnational corporation is NOT equal to the single entrepreneur working from a single location who incorporated to provide him or her and their families limited liability in lawsuits. It is self-evident that all corporations are not created equal, and revoking that privilege would allow legislatures and Congress to tax them at different rates.
The key point of this post is the need to address how the abolition of corporate rights would go “too far.” The primary case that comes to mind is NAACP v Alabama. In it, the Supreme Court granted the NAACP, a not-for-profit corporation, the right to privacy in order for the NAACP to protect the privacy of their membership list which the state of Alabama, an unofficial branch of the KKK at the time, was trying to obtain. No decent person would want to allow hate groups to obtain access to the membership lists of civil rights and human rights groups that have formed corporations which have enemies. Therefore, it would be one of the highest Congressional priorities in the aftermath of the abolition of corporate rights to pass legislation protecting the privilege of privacy for not-for-profit civil and human rights corporations. Congress could simply pass an amendment to the Civil Rights Act of 1964 to accomplish such protection or include such legislation in a larger bill protecting other corporate privileges that would be necessary in the aftermath of corporate personhood. This is not complex to understand, but it does required the use of our imaginations to understand a future where corporations no longer have rights.
In the coming fight to abolish corporate personhood with an amendment to the Constitution, there will be more than a little fear-mongering to try to convince legislators to vote “No” for resolutions in states and amendments in Congress. Some of that fear-mongering will come from a lack of understanding about how privileges would replace rights and how those privileges would need to be protected by legislatures. Advocates for abolition of corporate rights can use this understanding to argue against those ignorant fears. Most of the fear-mongering will most likely come from corporate propagandists operating in the corporate echo chamber known as the main steam media. They will spend whatever they feel they need to in order to defend and protect the rights that unprincipled judges should never have granted them in the first place.