January 21st marked the sixth anniversary of Citizens United v. Federal Election Commission. Yes, for six, long years, you and I have lived under the tyrannical thumb of this Supreme Court decision. The “parade of horribles” that this decision has brought down upon us includes paving the way for non-establishment candidates in presidential elections and allowing us to watch Michael Bay movies! The horror! But I digress.
What I really want to talk to you about is something you keep saying year after year…
“Corporations are not People!”
Please stop saying this. Please. It makes my brain hurt and is laughably incorrect. On my list of “annoying things people say,” it is up there with “obvies” (as in “Ella, he’s totes into you, it’s so obvies.”) and “money is not speech” (I’ll let Professor Eugene Volokh explain why that latter one misses the point, I’m far too lazy to police the usage of another phrase).
Let’s start with a piece of legislation that Congress originally passed back in 1947: The Dictionary Act. This exciting act can be found in the United States Code at Title 1, Chapter 1, Section 1. Yep, right there at the beginning. It was put there to help in “determining the meaning of any Act of Congress, unless the context indicates otherwise.” It states: “the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals” (emphasis added). It doesn’t take an English major or a lawyer to parse that one out. Plus, this isn’t the only section of the code where corporations are defined as people or as persons.
But I hear you shouting things at me like, “politicians don’t get to decide what words mean,” and “it says unless the context indicates otherwise,” and “Citizens United was a court case, not legislation!” For the sake of argument, let’s say I agree with you on all of those points. How about just a plain old dictionary? How does Merriam-Webster define a corporation? Glad you asked; one definition provided is: “a body formed and authorized by law to act as a single person although constituted by one or more persons and legally endowed with various rights and duties including the capacity of succession” (emphasis added). So, not only can a corporation act like a person, it is, in all instances, made up of people (at some level). In other words, without people, there are no corporations.
Ok, ok, you aren’t literally saying that Corporations aren’t people, because, well, quite literally, they are. What you are trying to say is…
“Corporations do not have Constitutional Rights!”
Nope, that’s not true either. See, corporations do have constitutional rights, they just don’t have all of the same rights that non-corporation persons enjoy. If you clicked that link (and if you’re as nerdy as me, I know you did), you saw that the Supreme Court has granted corporations Fourth Amendment protection against illegal searches and seizures, due process of law under the Fifth and Fourteenth amendments, and equal protection of the laws under the Fourteenth amendment. Conversely, the Supreme Court has denied corporations the Fifth Amendment right against self-incrimination and the protection of the privileges and immunities clause of the Fourteenth Amendment.
You may disagree with some of the decisions granting rights to corporations and that’s fine. However, to say you disagree with all of them strikes me as quite dangerous. Personally, I wouldn’t want to live in a country where the government can storm into any corporation, without a warrant, and begin searching through corporate records for proof of criminal wrongdoing. Imagine what the FBI would be doing to Apple right now if the Fourth Amendment didn’t apply to a corporation. Without the help of H.G. Wells or Marty McFly (two super timely time travel references) I can only surmise, but I’m guessing that presented with such a scenario, the founding fathers would agree that the Fourth Amendment would apply to prevent this state action.
Right, right, you are specifically talking about one particular right. What you really mean is…
“Corporations do not have First Amendment Rights!”
According to the Supreme Court in First National Bank of Boston v. Bellotti, decided in 1978, this is not correct either. In that case, the Court stated that the question wasn’t whether the speaker was a person or a corporation, what mattered was whether the statute at issue “abridges expression that the First Amendment was meant to protect.” Indeed, the Supreme Court was applying the First Amendment in cases involving corporations long before Burwell v. Hobby Lobby or Citizens United and yes, even before Justice Roberts, Justice Alito, Justice Thomas, and [insert The Imperial March theme here] the late, great Justice Scalia were on the bench.
I hear you. You’re not a fan of the Supreme Court, so you don’t care what they have to say about the matter. Heck, they brought us this horrible idea that corporations are people! (Seriously, if you are saying this, please start over from the beginning.)
So how about a hypothetical instead? Imagine a near future hellscape in which a Trump Administration is in power beside a majority Republican House and Senate. Suppose that this Congress pushes through a bill to build a rather large oil pipeline (let’s call it Keystone) and, in response, a corporation that runs a coffee chain (let’s call them Starbucks) decides to start a television and radio ad campaign decrying this legislation (and simultaneously promoting their new Caribbean Spiced Latte Macchiato). What could stop The Donald from preventing those commercials from ever seeing the light of day? In other words, what stops the government from censoring paid advertisements created by corporations? That’s right, the First Amendment and its protection against government infringement of free speech.
I sense your frustration and I apologize. I’m being a pedantic jerk. I get that what you really mean is, quite simply, that…
“Corporations should not do Things I do not Like!”
Well, at least you are being honest now. I do get that sentiment. There are plenty of things that corporations do and say that I don’t like. However, speaking out against these things is far different than saying that it is acceptable for the government to prevent them from doing (or saying) those things because they come from a collection of people organized as a corporation. There is no sound reason that the rights of individuals should automatically change simply because they act collectively.
Listen, there are plenty of arguments against Citizens United that make sense. I don’t agree with them, but these are legitimate arguments based in logic and the law. If you are a campaign finance reformer or a proponent of such legislation, you do yourself no favors by shouting misleading (downright false?) statements like “Corporations are not People” to get your point across. It conflates the issues involved, and most importantly, it annoys me. Please stop.
