An amendment that abolishes corporate constitutional rights would necessarily abolish “natural” corporate personhood while preserving “artificial” corporate personhood for purposes of contract and property law, general accounting, etc. Artificial personhood carries with it a set of “privileges” that have slowly been converted to “rights” by 125 years of Supreme Court rulings. Most Americans agree that for-profit corporations should be returned to their original status as artificial persons with privileges, not natural persons with rights. It is the non-profits that some people have decided warrant an exemption. But these entities should not escape concern no matter one’s political persuasion. Planned Parenthood and Operation Rescue, Freedomworks and MoveOn.org are all non-profits. The Westboro Baptist Church is a non-profit. So we can dispense with the notion that “non-profit” is the equivalent of “worthwhile.”
So, if non-profits come in all shapes and sizes, just as for-profit corporations and individuals do, what status should they have in relation to for-profits and individuals as a class? That’s really the crux of the question. And, as a class, there is no constitutional reason to elevate non-profits to the same status as individuals, which an exemption within the amendment would do. Nor is it a good idea to pick a fight in which our goal would become the creation of legal fictions with more rights than for-profit corporations. This fight is big enough as it is. But let’s get back to the bare-bones legal issues at hand.
Do non-profits require constitutional protections in order to function and protect the constitutional rights of their members, donors and beneficiaries? The simple answer is no and the Supreme Court has already shown us why. One of the most commonly cited examples of the need to protect constitutional rights for non-profits is the Supreme Court case of NAACP v. Alabama [357 U.S. 449 (1958)]. That case centered on the NAACP’s refusal to comply with a state order to turn over its list of members residing in the state of Alabama. It’s a bit mystifying that so many cite this case as a reason to protect institutional rights when the majority ruling opens with this statement:
“We think that petitioner argues more appropriately the rights of its members, and that its nexus with them is sufficient to permit that it act as their representative before this Court. In so concluding, we reject respondent’s argument that the Association lacks standing to assert here constitutional rights pertaining to the members, who are not, of course, parties to the litigation.”
It’s not an institutional right but the rights of the individual members that gives standing to the institution in this case. And to be absolutely sure everyone got the point, they went further:
“We hold that the immunity from state scrutiny of petitioner’s membership lists is here so related to the right of petitioner’s members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment.”
In other words, the organization was properly asserting the constitutional rights of its members because disclosure of the information owned by the organization, the lists, would have violated those members’ individual rights. This was not an institutional right being asserted, but an individual right being exercised by an institution with a legitimate interest in so doing.
Another Supreme Court decision that is often brought up is that of NAACP v. Button [371 U.S. 415 (1963)]. This time it was Virginia trying to find creative ways of stopping the NAACP from operating in state by passing a law specifically designed to prevent NAACP lawyers from offering pro bono legal assistance in blatant violation of the 1st Amendment assembly and speech rights of both lawyers and clients. This case is muddier water because the court did recognize an institutional right, even though it was completely unnecessary:
“Chapter 33 [of the Virginia statute], as construed and applied, abridges the freedoms of the First Amendment, protected against state action by the Fourteenth. More specifically, petitioner claims that the chapter infringes the right of the NAACP and its members and lawyers to associate for the purpose of assisting persons who seek legal redress for infringements of their constitutionally guaranteed and other rights. We think petitioner may assert this right on its own behalf, because, though a corporation, it is directly engaged in those activities, claimed to be constitutionally protected, which the statute would curtail. Cf. Grosjean v. American Press Co., 297 U.S. 233. We also think petitioner has standing to assert the corresponding rights of its members.”
The phrase, “standing to assert the corresponding rights of its members,” should be enough. But because these cases are being decided in the post-Santa Clara era, corporate personhood can creep in at any moment. Nonetheless, it remains true that the individual rights of the membership are enough to grant standing to the institution in these cases. And the pre-Buckley manner in which the institutional right was recognized is also noteworthy — “though a corporation.” The implication behind that phrase suggests a view that doesn’t automatically recognize an equivalent status for legal fictions and their human progenitors.
The exercising of individual rights by proxy is something that society has commonly recognized as both legally and ethically valid, from attorney-client privilege and doctor-patient confidentiality to power-of-attorney and the federal Electoral College. There has never been a need for an institutional right to protect individual civil liberties in the Constitution. It would be passing strange for the Framers, who believed that human females and slaves were legitimate forms of private property, to simultaneously believe that the local book club was the legal equal of an educated, land-owning, white man of European descent. Civil rights for artificial persons is neither found in the construction of the constitution nor necessary to the proper protection of individual rights or those that any institution would be responsible for exercising by proxy.
And looking at this from another angle, in the case of Boy Scouts of America (BSA) v. Dale [530 U.S. 640 (2000)], a New Jersey public accommodations law that prevented the BSA from discriminating against gays was ruled to be in violation of the BSA’s right of free association. If the BSA was an exclusive, small and insular private organization, their membership policy wouldn’t be the people’s business. But as a large organization with deep roots in communities across the country and a mostly open membership policy, there is a public interest in any discriminatory practices associated with that policy and thus the proper application of the public accommodations law in New Jersey. But the Supreme Court, treating the BSA not as the artificial person that it is but as the natural person the Framers never intended it to be, found that the piece of paper the charter is written on is the equivalent of a human being with the same unalienable rights. And discrimination against homosexuals became the law of the land because corporate personhood has been inflated to such an extreme that real people have become subordinate to their own creations.
The point of fighting corporate power is not just to take our elections back, it’s to take our lives back, from monopolistic retailers and geopolitically insane energy companies, from propaganda spewing media titans and the colluding “trade” organizations and corporate think tanks they exalt. And among the most effective mechanisms the entrenched corporate elites have used is astroturf “citizens” associations, like Freedomworks and the NRA, which derives the majority of its funding from the firearms industry. And yet, it is these wealthy, corporate-backed versions of the non-profit that would benefit the most from the abolition of corporate rights if it included an exemption for non-profits. Instead of limiting the ability of corporations to influence politics and policy, it would simply force corporations to funnel money to ever-larger and more powerful non-profit advocacy groups that think and act in every way like their corporate benefactors.
People have rights. Governments have powers (and the duties those powers enable them to carry out) and everything in between has privileges. Anything more complicated than that is picking an unnecessary fight, muddying the debate and crippling any beneficial impact to be desired from a constitutional amendment. Ultimately, an exemption for non-profits within the framework of an amendment to abolish corporate constitutional rights is legally and constitutionally unnecessary, tactically ineffective, ethically regressive, and strategically unwise. We put everyone in one pool and everything in another within the structure of the Constitution and let Congress sort out the categories later. That really is the way the system is designed to work. Let’s give it a try.