Mr. A. Barton Hinkle has a history of making stuff up so it should come as no surprise that his op-ed denigrating the movement to overturn Citizens United and related case law is entirely premised on fact-free conjecture and fear-mongering paranoia. This time, he’s taken to co-opting a clever phrase to label every single person who opposes the Citizens United ruling as a crazy person. But “Citizens United Derangement Syndrome” is actually the condition that he and his allies suffer from. Because anyone who believes that a piece of paper, on which a corporate charter is printed, is the equivalent of a living, breathing human being, is clearly, obviously, deranged. Let’s go to the video tape…
“Some of the resolutions stipulate simply that money is not speech and that states may regulate campaign financing. This is problematic enough, as the case history shows.”
Mr. Hinkle doesn’t feel it necessary to provide any of that “case history.” He just wants his readers to take it on faith that he’s right about that. But what the hell is he talking about? What case history? Montana was very happy with their hundred-year long restriction on corporate donations in the political sphere. The last really big political scandal in that state had nothing to do with government squelching the rights of individuals but the outsized power of copper mine owners to dictate the policies of the state government, in defiance of the majority. The Montana law that was overturned in the 2012 case of American Tradition Partnership v. Bullock (following on the pretzel logic of Citizens United) was passed to prevent such scandals and it worked for more than a hundred years, to the great satisfaction of Montanans themselves. Not only does Mr. Hinkle fail to back-up his inane assertion, his thesis is exactly the opposite of the truth in Montana, and across the entire country. But Mr. Hinkle is just getting started.
“They assert that corporations have no constitutional rights, period. […] This would strip newspapers, magazines, television shows, and book publishers of First Amendment protection – meaning the government could tell them what to print or say, and what not to. The same would apply to universities. It means the government could order advocacy groups such as NARAL and the Sierra Club to support legislation they oppose, or vice versa. If a legislature wanted to make charitable organizations like the American Cancer Society take dictation, it could. Ditto for unions. And so on.”
It would strip constitutional rights from the artificial entities that represent newspapers, magazines, TV shows, etc, but it would have zero impact on the individual rights of the owners, journalists, producers, performers, etc. If the federal government enacted a law preventing newspapers from publishing articles criticizing the president, that would still be a violation of an individual journalist’s freedom of the press. Whether the journalist worked for a newspaper or wrote on his or her own blog, it would still be unconstitutional. Ordering the Sierra Club to support legislation they oppose would violate each member’s individual freedom of speech and association. Making the American Cancer Society “take dictation” is a meaningless point but suffice it to say that the members of any organization do not cede their individual rights when they join up.
On the other hand, corporations very much want us to believe that we do cede our individual rights when we become employees. People get fired for speaking their minds, not just at work, but in social media, all the time. Every week. People are routinely forced to allow corporations to violate their Fourth Amendment rights with mandatory drug tests, squelch their First Amendment rights by monitoring social media, and are threatened with retaliation if forming a union is even discussed, in direct violation of their First Amendment rights of speech and assembly (not to mention federal labor law). There are uncountable numbers of obvious, and egregious, examples of private tyranny in the workplace that are committed by the very same corporations that want to be granted unalienable constitutional rights they never had, needed or deserved. The hubris and hypocrisy is stunning but not surprising. And neither is Mr. Hinkle.
“Of course, some of the resolutions would strip corporations not only of their First Amendment rights but of all rights. As the Cato Institute’s Ilya Shapiro explains, that would include the right against unreasonable search and seizure: The “police could search everyone’s [work] computer for any reason, or for no reason at all.” The corporate right to property would disappear as well: “The mayor of New York could say, ‘I want my office to be in Rockefeller Center, so I’ll just take it without any compensation.’ ” And while critics of Citizens United claim (incorrectly) that it overturns a century of precedent, they are trying to overturn two. The Supreme Court first recognized corporate personhood in 1819.”
We’ve dispatched the inane arguments of Ilya Shapiro in previous posts, especially this one, but those Cato Institute talking points keep cropping up. Yes, OSHA would be able to perform surprise inspections of dangerous workplaces again but they wouldn’t be constitutionally allowed to snoop into private lockers, private emails or even the financial records of the business without a warrant. Corporations are not mentioned once in the U.S. Constitution. Not once. Stripping corporations of the rights that have been granted to them by the unelected, unaccountable Supreme Court would not change anything in the Constitution at all. It would simply make it clear that the rights, privileges and immunities that are embedded in the Constitution are not to be interpreted to extend beyond what is written in the actual Constitution itself. And corporations are not granted any rights in the constitution itself, with a few, limited exceptions.
One of those exceptions is within the Fifth Amendment, the one that includes the “takings clause” that Mr. Hinkle (via Ilya Shapiro) cites: “nor shall private property be taken for public use, without just compensation.” The term “private property” includes property owned by artificial persons, like corporations. Unless specifically addressed in the proposed amendment language itself, any amendment stripping corporations of court-ordered constitutional rights would have zero impact on the ability of individual stock holders to assert their private property rights. The “corporate personhood” that the court recognized in 1819, in the case of Dartmouth College v. Woodward (not cited by Mr. Hinkle, in keeping with his fact-free modus operandi) is “artificial” personhood (as opposed to the “natural” personhood we, the people, enjoy), which did not, in itself, grant any constitutional rights. As if to mock Hinkle and Shapiro from the past, this passage, from the actual ruling, makes it clear that the Court never assumed that corporations have “rights” [emphasis added]:
“The title of the plaintiffs originates in a charter dated the 13th day of December, in the year 1769, incorporating twelve persons therein mentioned, by the name of “The Trustees of Dartmouth College,” granting to them and their successors the usual corporate privileges and powers, and authorizing the Trustees, who are to govern the college, to fill up all vacancies which may be created in their own body.”
Privileges and powers, Mr. Hinkle. Not rights. Welcome to the history you obviously never bothered to read up on. After describing people opposed to Citizens United as lunatics again, twice, Mr. Hinkle decides to pretend that the authoritarian dictatorship that typifies the corporate structure is really no different than a hippie commune!
“In a broad sense, corporations represent almost a communitarian ideal: They are groups of people who have come together voluntarily to pursue a collective interest. The government can put a gun to your head and command you to serve it. But you go to work for Google only if you choose to.”
Of course Mr. Hinkle chooses to use Google, one of the best companies to work for in America. But how many people really love working in a Massey coal mine so much that they think of themselves as being part of some utopian collective? Answer: zero. Corporations are top-down authoritarian hierarchies and anyone who says otherwise has no experience working for large corporations, is flat-out lying, or is, to borrow a phrase (and an acronym!), suffering from “Corporate Utopia Derangement Syndrome.” And some people have it bad:
“And in a legal sense, there is a very good reason for corporations to have certain rights. As Shapiro explains, they do so “not because they are corporations, but because they are composed of rights-bearing individuals.” It is strange to think individuals should “lose all their rights” merely because “they come together to work in unison.””
But that’s exactly what corporations believe happens when they hire a person, because that person can be fired in an instant for any number of reasons that, in a public agency, would be considered a direct violation of individual constitutional rights, including and especially exercising the right to free speech. When an active-duty Marine started a Tea Party Facebook page, nothing happened to him until he publicly vowed to disobey direct orders, and encouraged other soldiers to do the same, if those orders meant helping “this President.” And, even then, it took a decision by a military panel, under the uniform code of military justice, to get him discharged. And that’s an active-duty soldier, during a time of war, in a top-down chain of command. Yet he still had enough rights to take his commanders to federal court. Conversely, the rank-and-file workers in any corporation may be the “rights-bearing” people but none of those rights need be honored by the corporation itself. Workers can be fired for pretty much any reason, any time, with cause or without, in nearly every state in the country. Yet Mr. Hinkle, and his corrupt cohorts, want us to believe that corporations are democratic institutions, operating by consensus of the entire staff, which, as anyone with any semblance of corporate experience knows is total hogwash.
People often do lose the ability to exercise constitutional rights when they go to work for a corporation, at least if they want to keep their jobs. How does that come anywhere close to resembling a “communitarian ideal?” And why should the artificial entity, that came to life when the piece of paper on which the corporate charter is printed was stamped by a government agency, be free to exercise more rights than the employees of said artificial creation? On what planet, in what universe, does that make sense?
“The resolutions and petitions to strip corporations of their First Amendment rights, or all rights, allow only two possibilities. One is that their supporters have not given any serious thought to what they are advocating. The other is that they have. Neither is a comfort.”
The notion that supporters of an amendment to overturn Citizens United have given serious thought to what we’re advocating would be a discomforting thought to a corporate sycophant. But disagreeing with Mr. Hinkle’s unsupported thesis doesn’t denote a lack of serious thought. If anything, it’s the clearest indicator of rational thought in America today. Next time Mr. Hinkle decides to wade into a subject that is clearly over his head, it would behoove him to do some actual research before regurgitating Cato Institute talking points.
This is what stenographic journalism looks like. Even though this is just an opinion piece, Mr. Hinkle gives the impression of critical thinking and research by bringing Ilya Shapiro into the fray. But he doesn’t bother talking to anyone else — not supporters of an amendment or any constitutional scholars that take a different view from Mr. Shapiro, or even those who oppose an amendment for different reasons than Mr. Shapiro. This is a perfect example of just how far journalism has fallen in this new gilded age of corporate power and corruption. Even opinion pieces need to be based on true facts. Mr. Hinkle fails on so many levels, it can only be by virtue of his utility to oligarchs that he even has a job in the media at all. If he’s not willing or able to do the actual work of journalism, there’s no reason to assume he has any knowledge or expertise to offer on any subject he cares to write about. Perhaps he’s better at model railroads or something but he’s made it clear that any expertise he might have is not in the areas of civics or constitutional law.