Published in The Boston Globe on November 2, 2018
Are corporations people? They don’t have brains or hearts or consciences. They do not feel love, fear, or pride. They do not feel awkward at holiday parties or worry about their kids when they cough all night. Over two centuries ago, the Lord Chancellor of England pointed out that a corporation “has no soul to be damned, and no body to kick.”
The inhumanity of corporations is almost a truism at this point. Just ask Mitt Romney. When he declared at a campaign stop that “corporations are people, my friend,” it helped doom his 2012 presidential hopes.
But the trouble with the heartfelt admonition that “corporations are not people” is this: It is wrong.
Corporations are, and should be, legal “persons.” They should be able to claim constitutional rights, at least some of the time. And corporate constitutional rights should be important to you even if you are a progressive, like me.
The question of corporate personhood came to national prominence in 2010, when the Supreme Court announced that corporations had the same free speech rights as human beings to spend money in elections. Citizens United v. Federal Election Commission immediately joined the rogues’ gallery of the court’s most despised rulings, up there with Bush v. Gore. As many as 80 percent of Americans believed the opinion was wrong, and President Obama scolded the justices to their stony faces during a subsequent State of the Union address. Rightly worried about the influence of money in politics, Democratic candidates and activists have used the battle cry “corporations are not people” to rally progressives ever since.
Corporate personhood is on the Massachusetts ballot this year. Question 2 calls for the creation of a citizen commission to draft an amendment to the US Constitution to overturn Citizens United and to “advance the policies of the Commonwealth of Massachusetts . . . that inalienable constitutional rights are the rights of individual living human beings and not of artificial entities or aggregations of people.” Those who apply to serve on the commission must intend “to comply with and advance the policy established” by the petition.
It may be that an amendment crafted by a deliberative commission will be more nuanced than the petition itself. But a constitutional amendment that removed “artificial entities or aggregations of people” from constitutional protection would be a disaster.
The constitution has protected businesses and groups since the early days of the republic. Some of our most beloved cases limiting governmental power have been brought by corporations. The New York Times and The Washington Post — both for-profit companies — asserted First Amendment rights to publish the Pentagon Papers. Companies sued during the Korean War to stop Harry Truman from asserting inherent presidential power to seize steel factories during wartime. Planned Parenthood, organized as a corporation, won a hard-fought battle in 1992 to have the Supreme Court reaffirm Roe v. Wade. When I helped organize a coalition of law schools 15 years ago to sue the Pentagon over its discrimination against our gay and lesbian students, we formed a nonprofit corporation — an “artificial entity” who represented the interests of “aggregations of people.”
What about The Boston Globe’s decision back in August to organize hundreds of newspapers around the country to reaffirm the freedom of the press in the face of taunts by President Trump? That was an effort by a corporation to organize other corporations to exercise and defend constitutional rights.
Question 2 misstates the problem when it refers to “a torrent of corporate money” that Citizens United unleashed. Independent spending in elections, mostly from super PACs, has indeed skyrocketed. Anyone who believes that politics should depend on votes rather than dollars should be worried. But those dollars have not come from corporate coffers. The biggest spenders in the last two presidential cycles have been wealthy individuals. The largest expenditure by a publicly-traded, for-profit corporation in 2016 was a contribution of $1 million to a super PAC organized to support Jeb Bush. In the 2012 cycle, Chevron’s $2.5 million to help Mitt Romney topped the list. That sounds like real money. But in both cycles corporate money was dwarfed by big spenders like Sheldon Adelson, who spent about $170 million across the two elections, and the Koch brothers, who spent over $1 billion.
If truth be told, the biggest beneficiaries of Citizens United have been unions. The law the Court struck down had capped union spending along with corporate spending. So while corporations have largely stayed on the sidelines, unions have rushed into the political arena like never before. The SEIU, for example, spent over $50 million in 2016. Citizens United is actually operating in the favor of Democrats, because it allows unions to help neutralize the spending of the Adelsons and the Kochs. If we banned unions — as “aggregations of people” — from spending money in politics, the progressive causes and candidates I support would be worse off.
If a commission were able to craft an amendment that would control all money in politics, regardless of its source, I would rush to sign on. But an amendment focusing on the rights of, and spending by, artificial entities should not see the light of day.
The authors of Question 2 are correct that corporations have weaponized the First Amendment for their benefit. Businesses argue that they have a free-speech right to discriminate against gay customers, to refuse to warn about toxic products, and to resist disclosing complicity with human-rights violations. These assertions stretch corporate rights too far. Forcing cigarette companies to warn of the dangers of smoking is not like forcing a child to recite the Pledge of Allegiance. But we do not need a constitutional amendment to make these distinctions. We just need a Supreme Court that is less ham-fisted in its free speech analysis than the one we have.
It is also correct to call out corporations for how they all too often use speech rights to amplify the interests of financial and managerial elites, such as when fast food companies oppose minimum-wage hikes, big financial institutions fight banking reforms, or giant food companies resist labeling laws. The best fix for this problem is not a constitutional one, however. The solution is to require corporations to take seriously their commitments to employees and the public.
We should not exclude corporations from democracy, but inject democracy into them. Corporate governance structures should include representatives of the people who contribute to businesses, and management should focus not only on the interests of shareholders but on those of other stakeholders too.
Corporations should be more like people. Corporations should take into account a multitude of obligations — as people do. They should act as though more than one thing matters — as people do. They should care about the implications of their decisions, even if it does not affect them financially — as people do.
Instead of rejecting corporate personhood, we should embrace it. If corporations were more like people, corporate personhood—indeed corporate citizenship — could be a positive force in our society and even in our politics.