Corporate Personhood in a Free Society

Shannonkringens photostream

“Corporate,” for some, is a four-letter word – with “corporate personhood” a double obscenity. This longtime pet cause of the Left is a particular target of the “Occupy Wall Street” protests.

“Corporate personhood” originated in the Supreme Court’s 1886 decision in Santa Clara County v. Southern Pacific Railroad. What the Court actually said was that the 14th Amendment’s guarantee of equal protection of the laws – and that no “person” could be deprived of property without due process of law – applies to corporations. Seems to me entirely reasonable that in a free society under rule of law, these safeguards against arbitrary government power should apply not only to individual people, but to any private organization or institution.

When Mitt Romney recently declared, “corporations are people,” I suspect he meant merely that they’re made up of people. They’re not from Mars. They’re human organizations, not only extensions of the people who own them and run them, but also the people working for them, which indeed is most of the people in the country.

But none of this implies (as critics seem to imagine) that corporations can run roughshod over the rights of real persons. Just as individuals are subject to laws governing their behavior, to protect the rights of others, so are corporations. Not even the most extreme advocate of laissez faire capitalism wants corporations free from laws barring abusive conduct.


Being human organizations, corporations are indeed subject to all the character flaws that individual humans exhibit; and moreover, when you aggregate humans into large bureaucratized institutions, you get a whole new range of pathologies. That does threaten harm, which laws must forestall. This applies even more to another class of bureaucratized human organization: government. Which, remember, has far more power than corporations (a corporation can’t jail you), and hence protecting against government’s abuses is rather more of a concern than protecting us from corporations. And, yes, even corporations have legitimate rights against government abuse.

This brings us directly to a more recent Supreme Court case, Citizens United, which also has the Left hysterical, that corporations are allowed to fund political ads. Almost forgotten is what the case was actually about. Somebody made a political film criticizing Hillary Clinton. The Federal Election Gestapo ruled they couldn’t distribute it because the film had some corporate funding. The Supreme Court said, no, this is still a free country, and the First Amendment’s free speech guarantees bar such government regulation of political advocacy. (Please see my blog post preceding the decision.)

So Citizens United did not open a door that had always been closed. Instead, it overturned a regulatory regime that had been in effect only briefly, and restored the political freedom that had prevailed for most of the prior two centuries. (Note, the whole cat’s cradle of federal election regulation is really geared to suppressing political activity by the “outs” and protecting the “ins,” who never have trouble raising money and getting their message heard.)


But is corruption of the political process, by corporations effectively bribing politicians through campaign contributions, a problem? Yes – a huge one. In fact, as anti-capitalists love to point out, our free market system is greatly compromised by the “crony capitalism” of privileges enjoyed at the behest of (and corruptly bought from) government. In a truly free market, corporations check each other’s power. Government intervention undermines that.

But the remedy for all this should not lie in restrictions upon political advocacy. A far preferable solution would be a system of vouchers or tax credits to subsidize and promote greatly increased citizen political contributions, to counter the impact of corporate money. (This would be a form of public campaign finance vastly superior to existing schemes. For more about it, click here.)

And this we can do without gutting the First Amendment. In a free country, even corporations should have just as much right as any other groups of people to express their viewpoints and advocate for their interests in open public debate. Far more problematic is the idea that government can tell anybody when or how they’re allowed to participate in that debate. That’s the road to (today’s) Damascus.

Tags: , , ,

3 Responses to “Corporate Personhood in a Free Society”

  1. Lee Says:

    Bravo! All would agree that The New York Times and Fox
    are corporations that are protected by the first
    amendment; and the Citizens United decision serves merely to
    confirm that this protection extends to General Motors and General
    Electric, etc. I agree 100% that any organization of people
    deserves this protection. I also agree 100% that we (government)
    should provide vouchers, tax credits, or similar to subsidize and
    promote greatly increased citizen political contributions to
    political campaigns. (Oh quibbles: I’d probably go to double or
    quadruple of Lessig’s
    $50 per voter
    and I would not attempt his limit on non-voucher
    contributions, because it is too easy to get around such limits with
    (superficially) independent organizations.)

    I would add only that we may also need to reform the process of
    elections. For fear of wasting our votes, many citizens are afraid
    to vote for third-party candidates. And there is justification for
    this — it is proved by Arrow’s
    that it is not always optimal to vote your conscience
    when there are more than two candidates, for it may end up leading
    to the election of someone lower on your ranked list.

    Unfortunately, Arrow’s theorem tells us that this is true regardless
    of the voting system employed. However, a more parliamentary system
    with proportional representation might mitigate things. These a
    systems where, if your chosen candidate for Congress does not
    win, your vote will help like-minded candidates (for example, those
    in the same party as your candidate, though from a different
    district — or variants of that approach) to be elected.
    Absolutely, there are shortfalls for these systems too, and not just
    those shortfalls ever present because of Arrow’s theorem, but at
    least these systems don’t usually leave us with having to choose the
    lesser evil of two candidates we don’t like.

    [FSR comment: It’s indeed mistaken to think you “waste” your vote on a candidate with no chance. It’s only a wasted vote if you don’t vote for the one you actually prefer. Voting is not a game wherein being on the winning side is the objective.
    Proportional representation — be careful what you wish for. I give you Israel where, due to proportional representation, narrow minorities have the nation by the balls.

  2. Lee Says:

    Those who greatly preferred Gore to GW Bush, but voted for Nader did indeed push the election to their least favorite candidate. If I recall correctly, likewise for those who chose Perot instead of voting for GHW Bush over Clinton. The “wasted” vote is very real.

    However, I agree with you that proportional representation systems also have significant weaknesses.

    [FSR comment: It’s an assumption that Nader voters actually wanted Gore. If they’d wanted Gore, they could have voted for Gore. Their vote was not “wasted.” Nor was my 1992 vote for Perot wasted because I might have voted for Bush had Perot not been on the ballot. I vote for the candidate best representing my views. Doing otherwise is the only way to waste a vote.]

  3. weight loss fast diet plan Says:

    I have attempted for the past 35 an extended time to drop and
    Retain OFF my belly further excess fat. I’ve attempted every point from food prepare tablets, customized trainers, each food plan ever proposed, I at the moment spend out on two fitness center memberships, at any provided time, and in addition have not had the time for you to use the advantages of the two amid them in greater than a yr. I’ve to state that
    only factor that helped me benefits of green tea weight loss hoping the atmosphere,
    ease plus the availability of your services now currently being opened from five:00a.
    m till 10:00pm would motivate me to continue to be on program, attend
    many of the cardio classes, aquatics courses, stage classes etc…

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: