In an opinion piece published in the Hawaii Reporter entitled “Defending Citizens United,” Tracy Ryan, a libertarian, makes the case that groups of people (corporations) acting as one have 1st Amendment rights. If it were that simple, then the Supreme Court would not draw lines proscribing terrorist groups from exercising their 1st Amendment right to free speech.
In her argument Ryan ignores the history of how the artificial persons (corporations) that are actually properties (charters) obtained their rights. Regular readers of The Amendment Gazette understand that the Court has been granting corporations rights since they managed to exploit a loophole in the 14th Amendment. The idea that corporations have constitutional rights stems from a head note in an otherwise minor and forgettable case from 1886, Santa Clara County v Southern Pacific Railroad. Although head notes have no standing in law, these notes did lead to the Court granting the rights of the 14th Amendment to corporations three years later.
Corporations were granted 1st Amendment rights in the 1976 Virginia State Board of Pharmacy v Virginia Citizens Consumer Council. The Citizens United decision granted corporations the freedom to exercise those rights, expressed in the form of money (see Buckley v Valeo, 1976). The Citizens United decision integrated those two cases and continued undermining Congress’ power to regulate the manner of elections as they have been since Buckley.
Ryan claims that “there are certainly people who are saying that corporations aren’t people and therefore don’t have First Amendment rights. But this is just sophistry.” This, itself, is a sophism. What people are arguing is that corporations are not natural people, and therefore they should not have constitutional rights. It’s a normative argument that knowledgeable activists are making, not an epistemological one. We, progressives and principled conservatives alike, understand that corporations have been granted rights; we just believe that the Court has been corrupt and in violation of what the framers established (rights for natural persons) in the decisions that have advanced corporate rights.
Ryan’s weak logic is exposed in the next paragraph where she writes:
A corporation is a group of people who pool their resources to achieve a common goal. The people have First Amendment rights as individuals and thus as a group acting as one….
A corporation is not just a group of people; they exist as charters granted by the states. They are properties. They are artificial persons, not the natural persons contained in the phrase “We the People.” By Ryan’s rationale, i.e., “and thus as a group acting as one,” corporations should have all of the constitutional rights provided in our national, social contract; but they do not. The Supreme Court has not granted corporations the right to vote nor have they been granted the 2nd Amendment right…yet.
Ryan conveys her ignorance of the Constitution when she claims:
Whether the people making the decisions to spend money from the corporate treasury in such ways have the full authority of the stockholders is a question between them and the stockholders, not them and the FEC.
The Federal Election Commission is the regulatory arm of Congress, and Congress was given the power to regulate the manner of elections by the framers in Article 1, Section 4 of the Constitution. This is the power that the Supreme Court has usurped, something that Ryan fails to mention. That’s not surprising since regulations are anathema for libertarians, even though this specific power is spelled out in the Constitution.
Finally Ryan demonstrates just how poorly she understands the movement to overturn corporate personhood when she decides, based upon two examples, one from Public Citizen and one from the National Organization of Woman (NOW), that “[s]eemingly, it is the content of the speech that is being objected to by opponents of this decision.” Wrong! It is the vastly unequal size of the megaphones that money pays for which renders elections under Citizens United a mere simulacrum of democracy. Ryan adds, “The First Amendment is there to protect exactly the speech that people might find unpopular.” That much is true, but it is the speech of natural persons that the framers protected, not the speech of properties. Only corrupt judges on the Supreme Court have decided to extend the rights of natural persons to artificial persons (corporate charters). This history, along with the Court’s usurping Congress’ power to regulate the manner of elections, has fundamentally undermined the democratic nature of the American Republic.
Perhaps this argument is best made by Professor Lawrence Lessig when he explains in a piece published in The Atlantic entitled “The (Almost) Brilliance of Representative Dingell and His Friends:”
No one could deny that politicians are “dependent” upon their funders. Nor could anyone
believe these funders are a fair representation of “the People.” And thus, no one should doubt that we have allowed the system our Framers intended to be — in a word — corrupted. Ours is not a government with a legislature “dependent upon the People alone” [as Federalist Paper #52 describes our representative democracy.] It is a government with a legislature dependent upon “the People” and upon a different and conflicting group — “the Funders.”
That corruption is the result of a Supreme Court making decisions that tilt the playing field in the direction of the corporate elite and other plutocrats. Once again, a libertarian demonstrates indifference and/or ignorance with regard to the extent to which the Court has corrupted our system of elections.