TT's Lost in Tokyo — by TokyoTom

I’ve just run across two pieces of commentary on the Supreme Court’s recent Citizens United decisions by Carl Pope, chairman of the Sierra Club, that I agree with almost completely as a matter of history, Constitutional analysis and review of repercussions.

Readers who have perused my earlier comments on the Citizens United decision will be aware that I think the “corporations are persons too” jurisprudence to be both wrong and profoundly important, so I am happy to share Pope’s analysis with readers here. Let me note that I am a lawyer (and studied under conservative legal scholars) and don’t think Pope’s analysis is in the least “liberal”.

Without further ado, here are extensive quotes from Pope’s second piece, dated February 3, 2010, The End of the Corporate Zombie? (emphasis added):

There are two clear impacts from the Supreme Court decision to treat corporations as American citizens — regardless of how controlled or where domiciled — for purposes of political spending (if not yet direct cash contributions to candidates). The obvious impact will be a flood of campaign spending by corporations, one that further undermines the substance of a free press and of elections where each citizen’s influence is, approximately, equal. But the second impact will cut the other way. The Citizens United decision was such a naked power grab, such a nihilistic violation of conservative jurisprudence, and it came at such a fractured time, that it might just spawn a counter movement so powerful that the decision’s alleged beneficiaries, major multinational corporations, may come to view it as a disastrously Pyrrhic victory.

Let’s begin with the legal theory. Here’s the majority’s reasoning: We found in 1886 (Santa Clara County v. Southern Pacific Railroad) that “corporations are people.” And we later found, in 1st National Bank of Boston v. Bellotti, that “money is speech, unless delivered directly to a candidate.” Therefore, corporate money cannot be constrained at election time.

The five justices who ruled this way include a number who have professed a judicial philosophy based on the original intent of the language of the Constitution. For the document itself, that means the intent of the Founding Fathers. For amendments to the document, that means the intent of the legislators who drafted and ratified the amendments.

All five justices refer to themselves as advocates of “judicial restraint.” But in spite of the best efforts of Justice Scalia, the majority was unable to cloak its opinion in any garb but naked obeisance to corporate power. They went to great lengths to show that the Founding Fathers, and the drafters of the 14th Amendment, thought highly of corporations as a mechanism for citizens to cooperate. Well and good. But a mechanism is not a person. They claimed that they weren’t being judicial activists — but they picked and chose among previous court decisions — using some, overturning others, and tweaking a third set. And repeatedly they used language that blurred, rather than elucidated, the distinction between a person and a corporation.

Their core finding is expressed as a self-obvious proposition. “Distinguishing wealthy individuals from corporations based on the latter’s special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech.” Why not?

Justice Stevens, in dissent, threw back this gem from Chief Justice John Marshall, in the Dartmouth ruling that established the “originalist” doctrine of corporate rights: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it.”

A “mere creature of law” possessing “only those properties” conferred by law would seem, in ordinary reading, to make it utterly clear that law may also restrict as well as confer properties, and that one of the properties that can be restricted is the spending of money to influence elections.

Corporate rights, unlike individual rights, are “conferred.” That’s how the drafters of the Constitution and the 14th Amendment understood it. But not this five-justice Junta run amok.

What compelling state interest did the majority come up with to justify their breathtaking break with established legal precedent and the clear intent of the Constitution? This wonderfully flimsy bit from Justice Kennedy, writing for the majority, is typical: “Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.” That might be a perfectly good argument for a member of Congress to make in proposing to confer upon corporations the right to spend money in elections. But it does not even pretend to find a Constitutional basis for arguing that such a right is Constitutionally guaranteed to a “mere creature of law.”

The majority of course, would find these arguments perplexing, since in the 1886 Santa Clara County case an earlier Court announced (it never really found, so it never offered an argument), that for purposes of the 14th Amendment, corporations were “persons.” In the view of the five-justice majority, Citizens United merely has the courage to perfect that finding — a logic that previous Supreme Courts for more than a century have been too squeamish to embrace. But the Court that heard Santa Clara County did not demonstrate how its obiter dictum finding reflected the intent of the drafters of the 14th Amendment — it merely asserted that corporate personhood was well-established. (Since there is no such evidence, the Court had little choice but to make an assertion.) Indeed, the potential undermining of the Santa Clara County dictum has long stood as the biggest unanticipated consequence of a truly authentic judicial doctrine of original intent. Well, since that doctrine’s own advocates have now so spectacularly abandoned it, constraints on corporate power must be sought elsewhere.

It’s helpful here to recall the warnings of former Chief Justice Rehnquist, who carried his judicial restraint over to corporate rights. Rehnquist dissented in Bellotti, warning that corporations were given limited liability and perpetual existence, but that “those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.  “Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist” And neither the Bellotti Court nor the Citizens United Court offered any argued response. …

But if Citizens United is the rotten fruit, then Santa Clara County is the toxic tree. Its impact has been felt not only on campaign law but also on the rights of elected officials and the public to regulate land use, pollution, and environmental degradation. The entire battle of regulatory “takings” is rooted in the notion that corporations are persons. The sense of disenfranchisement that has empowered public anger at the banks makes this a poor moment for a judicially sanctioned corporate power grab. After all, while Congress might pass legislation saying that publicly chartered banks can’t spend billions to defend their bonuses, this Court has just shown that it is unlikely to allow such assertions of democratic power to stand against corporate personhood. That’s a powerful argument for amending the Constitution, and not just to reverse Citizens United but also Bellotti and those parts of Santa Clara County that go beyond a corporation’s necessary economic security, as well.

We ought to fix the whole problem. Corporations ought to have only those “properties” conferred by their charters. And the rights of personhood ought not to be among those properties. That doesn’t mean we don’t need corporations — we do. It doesn’t mean that if we want a vibrant economy we ought not to give them the properties to engage in contracts and conduct business. We should. But they are a mechanism for people to cooperate — not independent persons of their own. Their rights come from us, the citizens of the United States, and they should not be able to lord it over us as if they were citizens. They don’t belong in our politics. And while each employee and shareholder should enjoy the rights of speech, association, and political voice, corporations themselves should stick to doing business, not making laws.

We need chartered corporations — “creatures of the law” — not corporate zombies.

As a liberal environmentalist, Pope fails to see how the Santa Clara County decision enabled corporations to escape the control of the states that created them and licensed them to do business. This led to increasing corporate influence, a neutering of common law protections against pollution, and growing problems that fuelled even greater federal power.