Vermont Challenging Corporate Personhood

January 24, 2011 8:25 AM

One year after the Citizens United v. Federal Election Commission decision, which, overturning over 100 years of precedent, opened a floodgate of corporate money into election campaigns, Virginia Lyons (D-VT), has introduced legislation (full text of bill not yet available, articles here and here) in the Vermont State Senate to amend the United States Constitution to explicitly state that corporations are not persons. This would overturn the controversial notion of corporate personhood which was established in the 1800s. Controversial not only for the unequal distribution of rights and responsibilities among humans and corporations, some, like Thom Hartmann (previously), have claimed that the notion of corporate personhood was established as an intentional misinterpretation of the decision as recorded by court reporter J.C. Bancroft Davis, former president of the Newburgh & New York Railway Co.

Prior efforts to mitigate the disastrous effects of the Citizens United decision have failed (previously), and, don't forget that Vermont (among others) tried (and failed) to impeach George W. Bush.

Vermont was, however, somewhat successful in its most recent dispute with McDonalds over its "Fruit and Maple" oatmeal, which is entirely devoid of actual maple syrup.

posted by laminarial (102 comments total)

Good luck.
posted by Blazecock Pileon at 8:28 AM on January 24, 2011 [15 favorites]

I approve of this pony amendment.
posted by reductiondesign at 8:29 AM on January 24, 2011 [1 favorite]

Corporations can be persons when they have the same limitations as people (both legal and biological).
posted by Eideteker at 8:31 AM on January 24, 2011 [8 favorites]

Fruit and Maple.
posted by cjorgensen at 8:34 AM on January 24, 2011

I don't know if merely saying that corporations aren't persons, in as many words, is of much use. Corporations may not be people, but they certainly are entities, and corporate personhood is a useful legal fiction in many uncontroversial respects (viz. corporates can sue and be sued).

A better bill would lay out what, exactly corporates are and are not - which rights apply and which rights do not. This bill would also probably be very long and contentious and not as fun to quote or cite.
posted by Sticherbeast at 8:34 AM on January 24, 2011 [9 favorites]

overturning over 100 years of precedent

Legal cites for this assertion?
posted by John Cohen at 8:35 AM on January 24, 2011 [2 favorites]

*grabs checkbook and begins scribbling* Vir-gin-ia ... Ly-ons
posted by adipocere at 8:36 AM on January 24, 2011 [8 favorites]

This won't pass. It's unlikely anyway. I was looking through the bills drafted so far during this Congress the other day. There were, as there usually are, a number of constitutional amendments among them. Most of them were crazy. Capital frickin' "C". The threshold for constitutional amendments is just so high, there really isn't anyway I see any amendment passing. ERA didn't pass, after, hmm, forever? I think they even extended the deadline for it. I think the last two years in this country have shown me that no matter how great a proposal might be (the "I love Puppies" amendment, for instance) there is a large faction in the U.S. that will shoot it down. And this? This was proposed by a Democrat. Cha, as if!
posted by IvoShandor at 8:38 AM on January 24, 2011 [2 favorites]

As someone said above, good luck. My feeling, though, is that this will accomplish nothing...which is a damn shame.
posted by snwod at 8:38 AM on January 24, 2011

A better bill would lay out what, exactly corporates are and are not - which rights apply and which rights do not. This bill would also probably be very long and contentious and not as fun to quote or cite.

A longer bill would also have more loopholes, which would be a better bill for certain interested parties.
posted by Blazecock Pileon at 8:39 AM on January 24, 2011 [1 favorite]

I love that dorky maple lawsuit. For those who aren't familiar with local whatnot, Vermont has a part-time legislature which means that the people who make the laws are rarely career politicians. This is good news and bad news sometimes but leads to some interesting legislation. I'm curious to see where this one winds up.
posted by jessamyn at 8:40 AM on January 24, 2011 [3 favorites]

If corporations are people, can't they be prosecuted for rape in a hostile take over?
posted by Redhush at 8:40 AM on January 24, 2011 [4 favorites]

legislation ... in the Vermont State Senate to amend the United States Constitution [emphasis added]

Just to be clear, if this passes all it will do is urge the U.S. Congress "to propose an amendment to the United States Constitution."
posted by exogenous at 8:40 AM on January 24, 2011 [3 favorites]

overturning over 100 years of precedent

John Cohen: Legal cites for this assertion?

US corporations achieved most of their personhood 'rights' through court cases which established legal precedents, rather than through any explicit legislation being passed by governments. Wiki.
posted by memebake at 8:41 AM on January 24, 2011

If people want to argue against the Citizens United ruling, fair enough -- they may be right for any number of reasons. But I can't take seriously those who state, as a matter of principle, that a corporation shouldn't have constitutional rights. For instance, I want the New York Times and the Wall Street Journal and the ACLU to have as much of a right to free speech as I do. And this isn't hyopthetical: the ACLU (a corporation) has actually had to spend legal fees defending themselves against claims that they lack free speech rights. The idea that it's the correct "liberal" position to deny that corporations have constitutional rights is abhorrent.
posted by John Cohen at 8:43 AM on January 24, 2011 [19 favorites]

Just to be clear, if this passes all it will do is urge the U.S. Congress "to propose an amendment to the United States Constitution."

Not necessarily. The Constitution can also be amended by a Constitutional amendment called for by 2/3rds of the state legislatures, bypassing Congress entirely. But that process has never actually been used, and as the number of states has grown so large it likely never will be.
posted by jedicus at 8:43 AM on January 24, 2011

overturning over 100 years of precedent

John Cohen: Legal cites for this assertion?

US corporations achieved most of their personhood 'rights' through court cases which established legal precedents, rather than through any explicit legislation being passed by governments. Wiki.

How is that a cite for the assertion that Citizens United overturned over 100 years of precedent? Explain, please.
posted by John Cohen at 8:44 AM on January 24, 2011

Fat load of good it will do, but I will pester my congresscritter to support this bill if it actually makes it out of committee.
posted by Burhanistan at 8:44 AM on January 24, 2011

Sticherbeast: "A better bill would lay out what, exactly corporates are and are not - which rights apply and which rights do not. This bill would also probably be very long and contentious and not as fun to quote or cite."

Most states already have laws on their books[1] for just such an occasion. I think the idea with this amendment would be that corporations would have no rights or privileges, save what is present in the law authorizing their creation. That way, the government that authorized the creation of the corporate entity--whether state or federal--would exert the original type of control envisioned. "People are people," as a great 80s electronic band once said, but collections of people, especially ones with a built-in duty to create profit above all else, should be treated differently.

1 - The linked law is Chapter 162 of the Texas Utilities Code, called the Telephone Cooperative Act. It authorizes the creation of telephone cooperatives as a certain type of corporation. Subchapter C is entitled Powers of Telephone Cooperative and lays out exactly what authority an entity created under this law has. I linked to this one because I had it handy, and the Texas Business Organizations Code is friggin' huge.
posted by fireoyster at 8:44 AM on January 24, 2011 [2 favorites]

Related: A current case before the Supreme Court, FCC vs. AT&T, regarding the phrase "personal privacy" and whether or not it applies to corporations for the purposes of withholding information requested through FOIA. Transcript of the argument, audio of the argument, SCOTUSblog coverage. It's worth reading/listening to.
posted by Gator at 8:45 AM on January 24, 2011 [1 favorite]

overturning over 100 years of precedent

Legal cites for this assertion?

Not a legal ruling, but The Tillman Act of 1907
posted by brevator at 8:46 AM on January 24, 2011

John Cohen: How is that a cite for the assertion that Citizens United overturned over 100 years of precedent? Explain, please.

Oops. Reading comprehension error. My mistake, sorry.
posted by memebake at 8:48 AM on January 24, 2011

Common Cause Asks DOJ to Investigate Scalia and Thomas Over Citizens United.
posted by ericb at 8:52 AM on January 24, 2011 [3 favorites]

"I haven't found the right man, but there are plenty of corporations out there."
posted by BitterOldPunk at 8:53 AM on January 24, 2011

New Survey Finds Four in Five Americans Support a Constitutional Amendment to Overturn the Supreme Court's Decision in Citizens United.
posted by ericb at 8:54 AM on January 24, 2011

But I can't take seriously those who state, as a matter of principle, that a corporation shouldn't have constitutional rights.

I don't think the argument is that corporations shouldn't have legal protections. Most of the arguments I have seen have observed that assigning corps the same rights as human beings is problematic for a democracy. For example, giving foreigners and foreign business entities the legal rights to buy unfettered political influence in the United States — under the guise of calling this "free speech" — quickly and effectively diminishes rights that you and I have as citizens to fair representation. There should be ways to protect the ability of journalists and non-profit organizations to operate without totally dismantling existing rights for real (human) citizens.
posted by Blazecock Pileon at 8:55 AM on January 24, 2011 [12 favorites]

Opinion: Citizens United 1 Year Later -- Unleash the Corruption.

Following the Activity One Year After Citizens United.

Year After Ruling: Right Gloats, Left Vows Fight.
posted by ericb at 8:56 AM on January 24, 2011

US corporations achieved most of their personhood 'rights' through court cases which established legal precedents, rather than through any explicit legislation being passed by governments.

Okay, we know you like your anti-corporate-personhood pony, but seriously, this is just ignorant bunk.

See 1 U.S.C. § 1, which states, in part:

the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals

That statute was passed in 1948. So don't gimme this bullshit about judicial activism. There are the fifty state statutes which authorize the creation of corporations and empower then with legal rights.

Look: there isn't any way to limit the rights of corporations that does not limit the rights of natural persons. Corporations are, after all, simply legal entities which permit individuals to act in concert more efficiently. Limiting corporate rights is thus exactly the same as limiting individual rights.

This really just NewsFilter attached to a half-assed summary of a Wikipedia article. The critics of corporate personhood are, by and large, not lawyers, and thus it isn't surprising when their objections wind up exposing pretty glaring ignorance about the actual legal significance of the doctrine or the justifications for it. Hartmann is, as far as I can tell completely unqualified to address this issue. He's an herbologist for crying out loud. We listen to him about finer points of the law... why exactly? Because he says things we like to hear? Gore has half a seminary degree, half a law degree, and no legal experience other than being a politicians, which doesn't count for much, lemme tell you.

Unless some of the attorneys around here can point me to compelling legal theory from actual legal scholars as to why corporate personhood should be revisited, that's all I've got to say in this thread.
posted by valkyryn at 8:57 AM on January 24, 2011 [5 favorites]

Support a Constitutional Amendment: Corporations Are Not People

"We're asking every state legislator in the country to back adopting resolutions supporting the only remedy we have left to correct the Supreme Court's awful Citizens United decision: a constitutional amendment clarifying that corporations are not people.

It will take a long term campaign but a constitutional amendment is the only way to permanently undo the ruling.

Citizens United has already has a huge impact on our democracy. In 2010 spending on elections topped $4 billion, by far the most ever spent on a midterm election and even matching the total spent in the 2008 presidential election.

We've amended our Constitution before in moments when we needed to make fundamental changes to how our country works. Right now is one of those moments because giving corporations the full First Amendment rights of people is threatening the integrity of our democratic process."

posted by ericb at 8:58 AM on January 24, 2011 [2 favorites]

None of this would be an issue if Scalia and Thomas would just go bye-bye. Those two are hurting my country more than W did in eight years of his presiduncey.
posted by Mister Fabulous at 9:00 AM on January 24, 2011 [1 favorite]

fireoyster: "People are people," as a great 80s electronic band once said, but collections of people, especially ones with a built-in duty to create profit above all else, should be treated differently.

This reminds me of The Corporation, which asks "If corporations are people, what sort of people are they?" and comes to the conclusion that Corporations are psychopaths, exhibiting general psychopathic traits such as 'incapacity to experience guilt', 'callous disregard for the feelings of other people', 'deceitfulness (continual lying to deceive for profit', etc. Which makes sense, given that they are entities created to singlemindedly pursue profit above all else.

So, perhaps corporations should be treated like people, but only after careful consideration of the type of people they are. If corporations were treated as psychopaths, I'd be satisfied.
posted by memebake at 9:02 AM on January 24, 2011 [10 favorites]

Corporations can be persons when they have the same limitations as people (both legal and biological).

Genetic engineering is advancing, so you might want to rethink this.
posted by Brandon Blatcher at 9:04 AM on January 24, 2011

Look: there isn't any way to limit the rights of corporations that does not limit the rights of natural persons. Corporations are, after all, simply legal entities which permit individuals to act in concert more efficiently. Limiting corporate rights is thus exactly the same as limiting individual rights.

So Corporations can get married and adopt children?
posted by memebake at 9:05 AM on January 24, 2011 [1 favorite]

The Naval Appropriations bill of 1867 was the first limit to campaign fund raising.
An
article from time has 1907 as the first date.
And the CT legislature has a nifty election finance PDF here.
posted by laminarial at 9:05 AM on January 24, 2011

If corporations were treated as psychopaths, I'd be satisfied.

That's true, we do have the mentally disturbed committed for their own safety, as well as to serve the public interest.
posted by Blazecock Pileon at 9:06 AM on January 24, 2011 [2 favorites]

Look: there isn't any way to limit the rights of corporations that does not limit the rights of natural persons. Corporations are, after all, simply legal entities which permit individuals to act in concert more efficiently. Limiting corporate rights is thus exactly the same as limiting individual rights.

There are tons of things that corporations do every day that would be considered pathological if done by an individual. If the laws were fair, an action on the part of a corporation that would result in jail time for a person should result in the suspension of ability to participate in society by the corporation in a similar vein, as obviously you cannot jail a corporation.

There is no reason why the rights of a corporation should be as expansive as those of an individual. A corporation's rights should be limited to allow it to operate in the realm of business and little else. Political speech and so forth are still the rights of the members of that corporation, and don't need to be afforded to the corporation proper.
posted by explosion at 9:06 AM on January 24, 2011 [20 favorites]

Look: there isn't any way to limit the rights of corporations that does not limit the rights of natural persons.

Hogwash.

Corporations cannot "take the fifth" and refuse to provide self incriminating evidence. Indeed, American "discovery" rules are among the most invasive in the whole world.

On the other hand, most natural American citizens still enjoy 5th amendment rights against self-incrimination.
posted by three blind mice at 9:07 AM on January 24, 2011 [3 favorites]

Eek!! Doing this on an iPod, so.... Here's that PDF link.
posted by laminarial at 9:09 AM on January 24, 2011

What button to I press to make this bill become law?
posted by DU at 9:09 AM on January 24, 2011

Look: there isn't any way to limit the rights of corporations that does not limit the rights of natural persons.

there are however ways to limit the creation of corporations - they would not exist if there were not laws saying that the government can recognize them as such

The critics of corporate personhood are, by and large, not lawyers

the critics of health care, pro and con, are, by and large, not doctors - which is hardly a disqualification from having an opinion on the matter

and the critics of corporate personhood, by and large, are sophisticated enough to understand that a constitutional amendment would be necessary - and i'm not aware of any requirement in the constitution that one be a lawyer to propose an amendment
posted by pyramid termite at 9:09 AM on January 24, 2011 [5 favorites]

Oh, this is state level. But doesn't the federal constitution trump state constitution? Generally speaking? Can't I just have something to be happy about?
posted by IvoShandor at 9:10 AM on January 24, 2011

Not necessarily. The Constitution can also be amended by a Constitutional amendment called for by 2/3rds of the state legislatures, bypassing Congress entirely.

Yes, but that "urge" language is from the text of the resolution. In particular:

Now therefore be it resolved by the Senate and House of Representatives that the General Assembly urges Congress to propose an amendment to the United States Constitution for the states’ consideration which provides that corporations are not persons ...

While we're discussing pipe-dream amendments to the Constitution, I, as a District of Columbia resident, would like voting rights in Congress. Thanks.
posted by exogenous at 9:13 AM on January 24, 2011 [5 favorites]

But I can't take seriously those who state, as a matter of principle, that a corporation shouldn't have constitutional rights. For instance, I want the New York Times and the Wall Street Journal and the ACLU to have as much of a right to free speech as I do. And this isn't hyopthetical: the ACLU (a corporation) has actually had to spend legal fees defending themselves against claims that they lack free speech rights. The idea that it's the correct "liberal" position to deny that corporations have constitutional rights is abhorrent.

Why? Just naming a bunch of organizations that liberals may like and saying they had to "defend themselves against claims that they lack free speech rights" doesn't tell me why they should have them. The individual human beings in the organization, yes. But why should the organization, as an entity unto itself, have separate and special rights?
posted by DU at 9:14 AM on January 24, 2011 [1 favorite]

IANAL, but my understanding is that corporate personhood is not really germane to the finding in Citizens United. Rather, the Court found that because the First Amendment restricts Congress (and other government entities through the 14th) rather than granting rights to "persons," Congress couldn't ban the "speech" embodied by independent expenditures. If independent expenditures are speech (and I don't think they necessarily are, but the Court disagrees), then Congress shall make no law abridging the freedom of that speech, whether or not said law applies to "persons."
posted by aaronetc at 9:17 AM on January 24, 2011 [2 favorites]

Yes, but that "urge" language is from the text of the resolution.

I should have been more specific. My point was just that it's theoretically possible for a state legislature to take a more active role in the Constitutional amendment process, not that this particular resolution does so.
posted by jedicus at 9:18 AM on January 24, 2011

Common Cause Asks DOJ to Investigate Scalia and Thomas Over Citizens United.

Wouldn't this be nice. But won't there be incredible internal pressure in the DOJ to not find wrongdoing? I mean, if the case goes to trial, who will end up seeing it?

I think the root problem with the state of the nation is ignorance leading to apathy. I think most citizens don't really understand what is really going on in the U.S., caused by both perceptions of difficulty and competing interests, and that lack of understanding contributes to a strong urge to just trust that the people in positions of authority are doing their job well.

This urge is ultimately the greatest ally the Republicans have; the only people currently engaged with the political process are those folks the Rs have themselves riled up. I think it is no accident that Glenn Beck's main shtick is that of a teacher lecturing a class, complete with blackboard; the idea is to teach his audience what his bosses perceive as important, which not only fills their heads with repellent ideology but empowers them to consider themselves knowledgeable, giving them the confidence that this received wisdom is right enough to direct the nation.
posted by JHarris at 9:21 AM on January 24, 2011 [4 favorites]

the critics of health care, pro and con, are, by and large, not doctors - which is hardly a disqualification from having an opinion on the matter

Appeals to authority are silly, but are obvious enough, and the subject matter serious enough, that we should be able to ignore them and deal with the subject at hand.
posted by Blazecock Pileon at 9:25 AM on January 24, 2011

The idea that it's the correct "liberal" position to deny that corporations have constitutional rights is abhorrent.

Nonsense. Anyone choosing to make use of the special legal protections and limitations on personal liability offered them in return for organizing and doing business as a limited liability entity of any kind already enjoys the full benefits and protections of citizenship just like anyone else. They don't need extra-powered citizenship that only applies to them to be engaged. They can engage on equal footing with any of their fellow citizens.

What these stupid legal precedents are doing is providing the wealthy a mechanism to create multiple, fictitious legal proxies of themselves, effectively empowering the wealthiest among us to double or even triple-dip their cups in the well of constitutional protection, with an added bonus of special limited liability protections so they can engage in risky stunts without fear of consequences. In the earliest days of joint stock companies, the historical predecessor to the modern corporation, joint stock companies were explicitly established for a limited time to serve in the public interest and were forbidden from engaging in political activity. We should have a return to the fundamentals.
posted by saulgoodman at 9:26 AM on January 24, 2011 [28 favorites]

IvoShandor: Oh, this is state level. But doesn't the federal constitution trump state constitution? Generally speaking? It would, if this actually conflicted with Federal law. All this is doing is "urging" Congress to take up this issue. It is possible, as jedicus says, for state legislatures to get the ball rolling on the amendment process, but this proposal doesn't do that.

Federal law always trumps state law. There are things, however, that the Federal government is prohibited from doing to states. (Congress can't break up a state without the state's consent, for example.) The state would have to argue that the action was unconstitutional though, so even in that situation, Federal law isn't trumped, Federal action would just be deemed unlawful in the eyes of Federal law.
posted by spaltavian at 9:29 AM on January 24, 2011

In the earliest days of joint stock companies, the historical predecessor to the modern corporation, joint stock companies were explicitly established for a limited time to serve in the public interest and were forbidden from engaging in political activity. We should have a return to the fundamentals.

See Life, Inc for more on this, although I don't think he'd say this was strictly accurate or a good idea either. (I haven't finished it yet--too depressing.)
posted by DU at 9:30 AM on January 24, 2011

Er, I had a point with the digression in my prior comment, but I don't seem to remember what that was. Hm.

Look: there isn't any way to limit the rights of corporations that does not limit the rights of natural persons.

I'd like to second the call of hogwash. It's not like the legal code is an inflexible instrument. The law says what lawmakers and the courts say it says. There is nothing preventing them from amending it to keep the utilitarian aspects of corporate personhood without rejecting the perverse aspects.
posted by JHarris at 9:32 AM on January 24, 2011 [8 favorites]

posted by valkyryn at 11:57 AM: Unless some of the attorneys around here can point me to compelling legal theory from actual legal scholars as to why corporate personhood should be revisited, that's all I've got to say in this thread.

This Article argues that the doctrine of corporate personhood should be understood as only the recognition of a corporation’s ability to hold rights in order to protect the individuals behind it. Properly understood, corporate personhood is only a starting point for analysis and not a justification for granting or denying rights to corporations. Further, the Article suggests an alternative approach for determining the scope of corporate rights. Corporations should hold a constitutional right only when the objective behind the particular right is furthered by providing the corporation, and thereby the people underlying the corporation, with such right.
posted by T.D. Strange at 9:42 AM on January 24, 2011 [5 favorites]

Third the call of hogwash. Yes, corporations consist of individuals. Those individuals still have their individual rights (and responsibilities that go along.)

But to say that a corporation has a right to free speech, or of unlimited expenditures on campaigns, is basically a fiction that allows those individuals to avoid their personal responsibilities and limits, while retaining all of their rights.

Example: individuals have the right to initiative in many states. For many years though, you could not pay petition gatherers -- the idea was that individuals themselves could circulate petitions. One person, one vote, not amplified by wealth. Couldn't be more democratic than that.

Then the US Supreme Court decides that since corporations have the right to initiative, separate from the individuals in them, you have to allow corporations to pay petition gatherers. People in California, Oregon and Washington know how disastrous the results have been.
posted by msalt at 9:45 AM on January 24, 2011 [6 favorites]

BitterOldPunk: ""I haven't found the right man, but there are plenty of corporations out there.""

Hey, one of them even ran for Congress.
posted by zarq at 9:46 AM on January 24, 2011

I didn't know that the Vermont state Senate had the ability to amend the US constitution. When did that happen?
posted by Chocolate Pickle at 9:51 AM on January 24, 2011

I didn't know that the Vermont state Senate had the ability to amend the US constitution. When did that happen?

Did you read the links or the thread? It's urging Congress to take action.
posted by jessamyn at 9:56 AM on January 24, 2011 [2 favorites]

snwod : My feeling, though, is that this will accomplish nothing...which is a damn shame.

Even if it doesn't go through, one can hope that it'll open up a more visible conversation about the subject. I'd be willing to bet that many people are completely unaware that "corporate personhood" is even a thing, let alone what kinds of benefits it affords to entities that are, for all intents and purposes, sociopaths.
posted by quin at 10:06 AM on January 24, 2011

I didn't know that the Vermont state Senate had the ability to amend the US constitution. When did that happen?

The second method prescribed is for a Constitutional Convention to be called by two-thirds of the legislatures of the States, and for that Convention to propose one or more amendments. These amendments are then sent to the states to be approved by three-fourths of the legislatures or conventions.

"This route has never been taken, and there is discussion in political science circles about just how such a convention would be convened, and what kind of changes it would bring about."

So Vermont can't propose an amendment per se, but they can (together with other states) call for a Constitutional Convention. Such an event would give the word "clusterfuck" an entire new meaning.
posted by three blind mice at 10:10 AM on January 24, 2011 [4 favorites]

So, can a corporation arm itself with tanks, and fall back on the second amendment to defend the practice?
posted by stevis23 at 10:11 AM on January 24, 2011

" But I can't take seriously those who state, as a matter of principle, that a corporation shouldn't have constitutional rights."

Well, hold up, because that's not what critics of corporate personhood argue, at least not generally. The argument isn't that they shouldn't have rights (though the language of rights is difficult and problematic in its own ways), but rather that the privileges currently received by corporations are perverse and act against the public interest, in large part by hiding behind what we all know is a legal fiction. Removing that legal fiction, while difficult and certainly impractical given the current language of US laws, is not stripping corporations of all rights, and pretending as if it does only undermines a legitimate discussion by poisoning the well.
posted by klangklangston at 10:17 AM on January 24, 2011 [10 favorites]

Look: there isn't any way to limit the rights of corporations slaveholders that does not limit the rights of natural persons.

FTFY
posted by victors at 10:20 AM on January 24, 2011

Removing that legal fiction, while difficult and certainly impractical given the current language of US laws, is not stripping corporations of all rights, and pretending as if it does only undermines a legitimate discussion by poisoning the well.

Well said.
posted by Blazecock Pileon at 10:24 AM on January 24, 2011

"It will take a long term campaign but a constitutional amendment is the only way to permanently undo the ruling."

We could fix Citizens United with public campaign financing. At least somewhat.
posted by Eideteker at 10:24 AM on January 24, 2011

*switches funding to PACs, stares at Eideteker* Your move.
posted by adipocere at 10:26 AM on January 24, 2011 [1 favorite]

For example, giving foreigners and foreign business entities the legal rights to buy unfettered political influence in the United States — under the guise of calling this "free speech" — quickly and effectively diminishes rights that you and I have as citizens to fair representation.

Or giving US businesses the right to buy political influence for that matter, right?
posted by ersatz at 10:30 AM on January 24, 2011 [1 favorite]

John Cohen: I want the New York Times and the Wall Street Journal and the ACLU to have as much of a right to free speech as I do. And this isn't hypothetical: the ACLU (a corporation) has actually had to spend legal fees defending themselves against claims that they lack free speech rights. The idea that it's the correct "liberal" position to deny that corporations have constitutional rights is abhorrent.
Sure, some corporations should have access to constitutional rights. For example, the New York Times & the Wall Street Journal at least don't need free speech. They have freedom of the press. I really don't think Wal-Mart, Ford, or Exxon need that. Look at it this way: Time/Warner. Time Magazine: free press. Warner Brothers Records: no free speech/press/whatever. And, with regard to the ACLU, I couldn't find any evidence of your claim. I don't have too much time before I have to leave the house to run some errands. Could you please cite?
Any other corporate interest should go down the time-honored path of influencing government through PACs & "political donations".
Crap, I'm late; gotta go!
posted by frodisaur at 10:34 AM on January 24, 2011

The Program On Corporations, Law And Democracy (POCLAD) works to counter corporate personhood and power

The Community Evironmental Legal Defense Fund (CELDF) deals a lot with corporate personhood as it affects the environments, particiularly in regard to local governments.

A lot of these guys are lawyers.
posted by tommyD at 10:35 AM on January 24, 2011 [1 favorite]

The Program On Corporations, Law And Democracy (POCLAD) works to counter corporate personhood and power

They also appear to be against the concept of judicial review.
posted by electroboy at 11:00 AM on January 24, 2011

I think politicians and legislation should be treated much like race cars and have to wear the branding of the corporations that underwrite them. Therefore Mitch McConnell, for example would wear a huge logo for Exxon Mobil on the back of his expensive Armani suit. Sarah Palin would have to walk around with a FOx News Charon displaying scrolling over her forehead as well as any other logos from any other "corporate person" that he or she is beholden too.

Legislation likewise would be named after the corporation(s) that are backing it through their proxy agents. so you'd have the Halliburton de-forestation act of 2011 or the Verizon anti-net neutrality bill, so on and so forth.

Sometimes absurd legislation simply needs to be taken to it's hyperbolic natural extreme to finally revel it's absurd and cynical intentions.

With that in mind, why can't any and every group of "humans acting in concert," be given the gift of personhood, and I'm talking down to a granular level from bands, to local associations, to city and state governments to the Federal government itself perhaps. If a corporation as big as Exxon Mobile can be a "person ," than why can't the Federal government itself be a person? with "natural and inalienable rights," and being it's got more money and more people in it than Exxon Mobile should do and say whatever the heck it wants?

Oh wait, but that would make the rest of those "groups of humans acting in concert" rather redundant methinks. But of course IANAL, so what the hell would I care about any of this??
posted by Skygazer at 11:13 AM on January 24, 2011 [2 favorites]

So Corporations can get married and adopt children?

Only the non-gay corporations.
posted by longbaugh at 11:14 AM on January 24, 2011 [2 favorites]

Unless some of the attorneys around here can point me to compelling legal theory from actual legal scholars as to why corporate personhood should be revisited, that's all I've got to say in this thread.

Tangent (not derail, of course): a law degree is not a threshold barrier to discussing your theories, ideas, beliefs, or arguments on an issue of law. I am very interested in hearing what other people think about this and many other legal matters.
posted by norm at 11:15 AM on January 24, 2011

Sure, some corporations should have access to constitutional rights. For example, the New York Times & the Wall Street Journal at least don't need free speech. They have freedom of the press. I really don't think Wal-Mart, Ford, or Exxon need that. Look at it this way: Time/Warner. Time Magazine: free press. Warner Brothers Records: no free speech/press/whatever.

I didn't realize the freedom of the press was so easily severable from freedom of speech. I also didn't realize that only "the press" needed First Amendment protection. So, if the government were to to forbid the distribution by any corporation of any film, music, or book the government found offensive, you would think that was OK?
posted by Sticherbeast at 11:30 AM on January 24, 2011 [1 favorite]

That, T.D. Strange, is exactly what I'm looking for. Too busy to give it a response right now; I'll get back to it, hopefully this evening.
posted by valkyryn at 11:41 AM on January 24, 2011

But I can't take seriously those who state, as a matter of principle, that a corporation shouldn't have constitutional rights.

These free speech rights, they adhere to people, no? And the corporation is made up of people, no? Not sure that the corporation, per se, should have free speech rights, over and above those of the individuals comprising it.

Let me illustrate. I can take out advertisements as an individual extolling all sorts of nonsense about how great Special K is as a cereal. I can claim it cured my dementia (it didn't). But I certainly don't want a corporation to have that right. Ever. I think we need to be able to put limits on the rights of corporations, which granting them constitutional rights as individuals prevents. I also leads to nonsense like Citizens United. Of course, that had to also encode the bizarre notion that money = speech, a long-standing conservative canard formulated to legalize bribery.
posted by Mental Wimp at 11:44 AM on January 24, 2011 [1 favorite]

I can take out advertisements as an individual extolling all sorts of nonsense about how great Special K is as a cereal. I can claim it cured my dementia (it didn't). But I certainly don't want a corporation to have that right.

Fraud isn't protected speech. The people who make Special K already can't claim it cures dementia.

Unless I'm misunderstanding you - is your position that no corporation should be allowed to advertise?
posted by Sticherbeast at 11:52 AM on January 24, 2011

a law degree is not a threshold barrier to discussing your theories, ideas, beliefs, or arguments on an issue of law

Maybe, maybe not, but it is a pretty good way of telling whether or not someone has any idea what they're talking about when the subject matter is a pretty sophisticated technical subject. Corporate formation and constitutional law are complicated, subtle matters it's really, really easy to be wrong about, especially when they start touching on things people hold as ideological axioms. Which is why I'm interested to read Professor Pollman's article. There, at least, I can have some confidence that someone will get the law right on what is ultimately a legal issue.

It may be a logical fallacy to insist that only a surgeon is qualified to perform surgery, but I'll be damned if I let anyone else near me with a scalpel.
posted by valkyryn at 11:52 AM on January 24, 2011

stevis23: "So, can a corporation arm itself with tanks, and fall back on the second amendment to defend the practice"

May I introduce you to Xe? (Formerly Blackwater.) This is an insanely well armed mercenary army, most of whom are based in the US. Just saying...
posted by dejah420 at 12:02 PM on January 24, 2011

Tangent (not derail, of course): a law degree is not a threshold barrier to discussing your theories, ideas, beliefs, or arguments on an issue of law. I am very interested in hearing what other people think about this and many other legal matters.

Legal matters tend to be extremely complicated, to the point where the expertise to offer an informed opinion isn't readily attained without specialized training. This is not to say that a law degree is or should be a prerequisite to holding or expressing opinions, but when you want to go beyond broad-stroke "corporate personhood is dangerous and here's why" arguments, and start proposing the mechanics of "Here is how a repeal should be structured"? Well, I'm not a programmer, so I tend not to lecture programmers on how their code should look.
posted by kafziel at 12:05 PM on January 24, 2011 [2 favorites]

Corporations may not be people, but they certainly are entities, and corporate personhood is a useful legal fiction in many uncontroversial respects (viz. corporates can sue and be sued).

Local, state and federal governments can sue and be sued without needing a "convenient legal fiction" that they're persons.
posted by Gelatin at 12:08 PM on January 24, 2011

Local, state and federal governments can sue and be sued without needing a "convenient legal fiction" that they're persons.

Not precisely true. The legal system originated when the government was person, namely the king, and a lot of still viable legal documents such as sovereign immunity, which despite challenges around the edges is pretty uncontroversial at its essence, depend pretty heavily on that fact. Turns out that you can't sue the government unless there's a specific statutory provision which permits you to do so, the theory being that summoning the king as a party into his own court is just silly.

So yeah, there is no official legal document setting up governments as if they were people, the law significantly treats them as if they were in pretty important ways.
posted by valkyryn at 12:17 PM on January 24, 2011 [1 favorite]

There, at least, I can have some confidence that someone will get the law right on what is ultimately a legal issue.

What? As self-satisfying as it might be for you to discount every non-lawyer from having an opinion on corporate personhood, this is a proposed constitutional amendment on ideological grounds. It's an ideological issue, not a legal issue.
posted by kafziel at 12:18 PM on January 24, 2011 [1 favorite]

On the other hand, Vermont is seriously looking into granting legal personhood to cows. They are, after all, the majority of the state's population.

Seriously though, my home state makes me all kinds of proud.
posted by sonika at 12:18 PM on January 24, 2011

valkyryn: Corporate formation and constitutional law are complicated, subtle matters it's really, really easy to be wrong about, especially when they start touching on things people hold as ideological axioms.

Well that may be, but in your earlier appeal to (your own) authority, you came up with this:

Look: there isn't any way to limit the rights of corporations that does not limit the rights of natural persons. Corporations are, after all, simply legal entities which permit individuals to act in concert more efficiently. Limiting corporate rights is thus exactly the same as limiting individual rights.

Now, I.A.N.A.L., but that sounds like bullshit to me. Of course its possible for the law to distinguish between the rights of corporations and individual persons. They are different types of entity, that the law sometimes treats as equivalent and sometimes does not.

I wouldn't want non-lawyers to draft the detailed legislation, but I'd expect non-lawyers to be involved in the discussion about what needed fixing.
posted by memebake at 12:21 PM on January 24, 2011 [1 favorite]

The law is a "sophisticated, technical subject" because lawmakers (like the presumably ignorant ones at issue here) have made it so. Perhaps that is to deliberately make it impenetrable and to require the use of attorneys. Corporate personhood and its implications may also be extremely complicated. But that means that people should just shut up and not express their opinion because they don't have a degree? I am sorry, I reject that. If you can't explain to the uninformed what the consequences are of a wrong-headed position, then what good is that law degree? Make your argument.
posted by norm at 12:22 PM on January 24, 2011 [1 favorite]

It may be a logical fallacy to insist that only a surgeon is qualified to perform surgery, but I'll be damned if I let anyone else near me with a scalpel.

Unlike a surgical residency, practically anyone with a pulse can get a J.D. if they decide they want one. Argument from authority is generally more effective where the bar is set somewhat higher than "laughably low".
posted by T.D. Strange at 12:27 PM on January 24, 2011

Law degree =/= lawyer
posted by electroboy at 12:44 PM on January 24, 2011

Well, I'm not a programmer, so I tend not to lecture programmers on how their code should look.

No, but you should feel free to lecture them on how their code should function.
posted by Mental Wimp at 12:58 PM on January 24, 2011 [5 favorites]

No, but you should feel free to lecture them on how their code should function.

Especially if you're a key stakeholder.
posted by saulgoodman at 12:58 PM on January 24, 2011 [3 favorites]

Fraud isn't protected speech. The people who make Special K already can't claim it cures dementia.

Yes, my point is that I don't want corporations to have the same speech rights as individuals. I want to be able to continue to regulate their speech, so we can require them to not lie overtly. (We allow a lot of implied lying, unfortunately). I don't want to regulate someone who goes on TV and claims she was cured of her cancer by vitamin C. She may be wrong, but she has a right to express her belief. Does that clarify it?
posted by Mental Wimp at 1:01 PM on January 24, 2011

There used to be a fairly solid body of legal precedents that helpfully distinguished 'commercial speech' from the good old fashioned, constitutionally protected individual kind. There is no sanity whatsoever in the way the law has been trending.
posted by saulgoodman at 1:23 PM on January 24, 2011

valkyryn: "There, at least, I can have some confidence that someone will get the law right on what is ultimately a legal issue. "

I think that your mistake here is in thinking that this is an issue one can get "right." This isn't a technical issue that can be right or wrong. It's a political issue. Previous Courts would have restrained themselves, but not this Court.

As a technical matter (e.g., the inclusion of corporations within a statutory definition of "person"), there isn't really much controversy. The statute could, instead, have been written in terms of the rights and duties applicable to "XYZ", where "XYZ" is defined as including natural persons, corporations, partnerships, etc.

Of course, statutes aren't written this way, and the inclusion of corporations within the definition of "person" could, by itself, be seen as conferring something more significant on corporations. Then there are the occasional cases, Citizens United being a prime example, where a court digs into the non-statutory "inherent" rights of corporations. But the Supreme Court has not been consistent in this area, as I understand it. For example:

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, either expressly, or as incidental to its very existence.

That's from an 1819 opinion (Trustees of Dartmouth College v. Woodward, 17 U.S. 250), but it seems to run contrary to your assertion that there's no principled way of distinguishing corporations from individuals when it comes to fundamental rights. It also seems contrary to Citizens United, which a quick check seems to show did not cite Woodward (although it was cited in Justice Stevens' dissent). I am not at all an expert in this area (I generally deal with the "technical" aspects of corporate personhood) but I agree with Stevens here: "The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court's disposition of this case." The bigger fiction now is not corporate personhood but the idea that we've got a high court impartially "calling balls and strikes."
posted by lex mercatoria at 2:02 PM on January 24, 2011 [6 favorites]

Yes, my point is that I don't want corporations to have the same speech rights as individuals. I want to be able to continue to regulate their speech, so we can require them to not lie overtly. (We allow a lot of implied lying, unfortunately). I don't want to regulate someone who goes on TV and claims she was cured of her cancer by vitamin C. She may be wrong, but she has a right to express her belief. Does that clarify it?

No, that doesn't clarify it at all. Laws against fraud and false advertising are functionally the same as for individuals and corporations, to the best of my knowledge. Individuals are allowed to be innocently mistaken, to be sure, to a point, but if your hypothetical person is selling vitamin C and starts making all sorts of fraudulent claims about it, then she can be sued for fraud just as easily as if she were the CEO of a corporation. Individuals do not possess a special right to commit fraud or falsely advertise.

I'm not sure how to structure a hypothetical for the reverse scenario, in which a corporation makes an innocent mistake about something that they're not selling, like your woman who believes that vitamin C cured her cancer. I suppose if McDonald's made a commercial on the anniversary of 9/11, saying something like "we here at McDonald's express our deepest sympathies for all those who lost their lives on 9/11, when the Colossus of Rhodes collapsed," that would be stupid, but there wouldn't really be a cause of action.
posted by Sticherbeast at 3:18 PM on January 24, 2011

I suppose if McDonald's made a commercial on the anniversary of 9/11, saying something like "we here at McDonald's express our deepest sympathies for all those who lost their lives on 9/11, when the Colossus of Rhodes collapsed," that would be stupid, but there wouldn't really be a cause of action.

(To clarify: there wouldn't be a cause of action in terms of fraud or false advertising, although I'm sure the stockholders would be deeply unhappy and they could mount an attack against whomever let that get on the airwaves.)
posted by Sticherbeast at 3:22 PM on January 24, 2011

valkyryn, you seemed to have taken an unassailable position. "Show me your law degree, or else shut up". I think this conversation transcends your obnoxiously, obviously superior knowledge of the US legal system. By talking about amending the constitution, it sorta becomes a big picture conversation.

Do we, as citizens, want to grant corporations the same rights in our democracy as the individual? To which many of us answer resoundingly, "no".
posted by karst at 3:37 PM on January 24, 2011 [2 favorites]

How about this: corporations become actual natural persons, subject to personal income tax laws and with their employees subject to collective guilt and consequences for all criminal wrongdoing.

Might make a person think twice about that too-good-to-be-true position on Monster.com, eh?
posted by digitalprimate at 4:05 PM on January 24, 2011

Maybe, maybe not, but it is a pretty good way of telling whether or not someone has any idea what they're talking about when the subject matter is a pretty sophisticated technical subject.

That presupposes that how the government rules my life is some "technical subject" that I'm not qualified to opine on.
posted by ChurchHatesTucker at 8:21 PM on January 24, 2011

What these stupid legal precedents are doing is providing the wealthy a mechanism to create multiple, fictitious legal proxies of themselves, effectively empowering the wealthiest among us to double or even triple-dip their cups in the well of constitutional protection, with an added bonus of special limited liability protections so they can engage in risky stunts without fear of consequences.

robert reich proposed abolishing limited liability in supercapitalism:

He calls for an end to the legal fiction that corporations are citizens, as well as the illusion that corporations can be "socially responsible" until laws define social needs. Reich explains why we must stop treating companies as if they were people -- and must therefore abolish the corporate income tax and levy it on shareholders instead, hold individuals rather than corporations guilty of criminal conduct, and not expect companies to be "patriotic." For, as Reich says, only people can be citizens, and only citizens should be allowed to participate in democratic decision making.

also re: lawyers/surgeons, it seems as if that's kind of like the physics-envy that (some) economists have, except i guess with lawyers it's wrt medicine. but like as others have pointed out, the equivalence doesn't hold up. laws are made up, whereas physiological ones aren't (at least not yet! for the most part ;)
posted by kliuless at 9:56 AM on January 25, 2011 [2 favorites]

Incidentally, there's now a thread posted about trying an 11-year-old as an adult. Shall we go and tell people to not comment about that one until they get their law degrees? Due process and the 8th amendment can be awfully complicated, you know.
posted by norm at 12:52 PM on January 25, 2011 [1 favorite]

Incidentally, there's now a thread posted about trying an 11-year-old as an adult. Shall we go and tell people to not comment about that one until they get their law degrees?

I don't think you should comment until you've been subject to a trial, or eleven.
posted by ChurchHatesTucker at 4:58 PM on January 25, 2011

While we're all scrambling to get out law degrees in order to post in this thread, check out this acerbic Slate article on the FCC v. AT&T case before the Supreme Court. Does a "personal privacy" exception to FOIA requests exist for corporations? No decision yet, but it's an interesting question.
posted by Sticherbeast at 4:59 PM on January 27, 2011

get out law degrees

get our law degrees
posted by Sticherbeast at 4:59 PM on January 27, 2011

get out law degrees

get our law degrees

Sorry, you've just been disbarred.

(also the oral arguments in that case were actually rather promising to the anti-corporate person position. None of the judges seemed very responsive to AT&Ts position, with Roberts and Scalia both borderline mocking the AT&T lawyer. The DOJ lawyer didnt even use his time left for rebuttal.)
posted by T.D. Strange at 5:41 AM on January 28, 2011