Citizens United, Corporate Personhood and the Constitution

by David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center.  This piece is cross-posted at ACSblog, and opens an ACSblog debate on the constitutional rights of corporations between Mr. Gans and Michael S. Greve of the American Enterprise Institute.  Mr. Greve’s post is scheduled to appear on ACSblog tomorrow.

Citizens United v. FEC raises fundamental questions about our Constitution, and our democracy. It is with good reason that the Court’s failure to decide the case to date has received more press than most actual Supreme Court decisions receive. Citizens United argues that corporations have the same constitutional rights as the American people do to spend money on elections, and that the government may not limit corporate spending on elections. If the Court agrees, our democracy will suffer for it. Obama’s 2008 fundraising records could easily have been dwarfed by a single mega-corporation willing to divert a tiny fraction of its profits to the election of its preferred candidate.

If the Justices decide the case based on the Constitution’s text and history, Citizens United’s sweeping claim would certainly be rejected. In CAC’s forthcoming report, “A Capitalist Joker”: Corporations, Corporate Personhood, and the Constitution” (released as a discussion draft in December and available here), we show that, from the very beginnings of our Nation, the constitutional protections available to living persons and corporations have been fundamentally different. While James Madison wrote the Bill of Rights to protect the “great rights of mankind,” corporations did not have any right to exist, let alone the same fundamental rights as “We the People.” From the founding on, as Chief Justice Marshall explained, corporations were “artificial being[s], invisible, intangible, and existing only in the contemplation of law” and “possess[ing] only those properties which the charter of creation confer. . . . ” To be sure, corporations received a host of special privileges that enabled them to succeed in business and some limited constitutional protection for their property rights, but these corporate attributes subjected them to greater government regulation, not less.

The distinctions between citizens and corporations are most pronounced when it comes to elections. The Constitution protects the rights of citizens to vote through constitutional amendments that no one could reasonably read to protect corporations, and prevention of improper corporate influence over the electoral process has been a pillar of our democracy as far back as 1833, when President Andrew Jackson castigated the Bank of the United States for its political spending on elections. In 1907, Congress enacted the Tillman Act and wrote into federal law a sharp distinction between the campaign finance laws applicable to living persons and those applicable to corporations, with the latter strictly regulated to prevent corruption of the electoral process. That sharp distinction has been there ever since, repeatedly reaffirmed by Congress and upheld by the courts.

For most of our Nation’s history, Supreme Court doctrine comported with our Constitution’s text and history. But beginning in 1886, the Supreme Court began to engineer a change. In Santa Clara v. Southern Pacific Railroad, the Court’s court reporter wrote into the opinion’s head-notes a statement made by the Chief Justice during oral argument that the Constitution protects corporations as persons. In the decades that followed, the Lochner-era Supreme Court relied on this fabricated precedent, giving corporations constitutional rights and demanding that corporations be treated equally with living persons. This disastrous departure from constitutional first principles proved to be short-lived. Beginning in 1937, virtually every aspect of the Lochner era’s protection of corporate constitutional rights was repudiated, with the Court ultimately declaring in 1973 that the idea of equal rights for corporations was “a relic of a bygone era.”

Today, much of the Supreme Court’s doctrine about corporations gets the Constitution’s text and history right. For the last thirty years, the Court has regularly affirmed that corporations do not have the same right to participate in the political process as individuals do, and that the integrity of our political system would suffer if corporations could take advantage of the special privileges they receive to succeed in the economic marketplace to help elect candidates willing to do their bidding. These cases, now on the chopping block in Citizens United, are hardly outliers. The Court’s Fourth Amendment doctrine has consistently recognized that corporations do not have the same Fourth Amendment rights as individuals do, reasoning that “[f]avors from government often carry with them an enhanced measure of regulation.” Since the early 20th Century, the Court has held that corporations are not protected under the Fifth Amendment’s Self-Incrimination Clause. Having accepted special privileges from the government, a corporation cannot invoke the Fifth Amendment to keep the government in the dark about criminal acts committed using those special privileges.

Text and history, and respect for precedent, together make for a powerful argument in Citizens United. They explain why corporations and living persons do not have the same First Amendment rights, why Congress may limit corporate spending on elections, and why, when the Court finally issues its long-awaited ruling, the Court should reaffirm its precedents upholding limits on corporate election spending.

This article has been reprinted in the following publications

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