“Let Us Now Praise Corporate Persons”

Kent Greenfield photo

Kent Greenfield

“Let Us Now Praise Corporate Persons” is the attention-getting title of a Washington Monthly  article by Kent Greenfield, a professor of law and Dean’s Research Scholar at Boston College Law School. The article’s sub-head gives the gist:

Citizens United was a bad decision; but the cry of “Corporations are not people!” isn’t helping fix the problem—in fact, it’s making it worse.

A few more quotes to persuade you to read the article:

“As a law professor, I have spent my career as an oddity—a progressive who teaches corporate law, almost always the most liberal person in any room of business law academics.”

“What’s the best way to control corporate power? More corporate personhood, not less.”

“When [the Hobby Lobby] suit made it to the Supreme Court in early 2014, a group of corporate law professors (of which I was one) filed a “friend of the court” brief arguing against the corporation. The brief’s main argument? Corporate personhood. … The Supreme Court disagreed. It held, 5-4, that [Hobby Lobby’s owners] could project their religious beliefs onto the corporation … the majority [of the Court] doesn’t understand the basics of corporate law. Its sin was not an embrace of corporate personhood but a rejection of it.”

“Remember, the opposite of a constitutional right is a government power. If corporations have no rights, then governmental power in connection with corporations is at its maximum. That power can be abused, and corporate personhood is a necessary bulwark.”

“In 1971 … the government sought to stop the New York Times, a for-profit, publicly traded media conglomerate, and the Washington Post, which had gone public as a corporation only a few weeks previously, from publishing the leaked Pentagon Papers. The Supreme Court correctly decided that the newspapers had a First Amendment right to publish.”

“In 1992, Planned Parenthood won a hard-fought battle to have the Supreme Court reaffirm Roe v. Wade. Planned Parenthood is a corporation; but no one seriously suggested it had no standing to object to limits on its ability to provide abortions. Today, Google and other media companies are fighting government demands to disgorge the contents of their servers. No one seriously suggests that the government’s power should be unchecked because the media companies, as corporations, have no Fourth Amendment rights to be free of unreasonable searches and seizures. ”

“In 2011, AT&T asked that information about its finances be excluded from Freedom of Information Act requests, because the statute has an exception for “personal privacy.” The Court unanimously rejected this claim—and Chief Justice John Roberts ridiculed it in his opinion. That exception, he wrote, “does not extend to corporations. We trust that AT&T will not take it personally.””

“There are myriad reasons why a commitment to free speech rights—even corporate free speech rights—should not bar reasonable limits on independent campaign expenditures from both corporations and the super rich. … The current Court is … enamored with a simplistic, libertarian theory of free speech doctrine …. A sane Court could easily construct exceptions to otherwise applicable doctrine to protect the sanctity and fairness of our elections.”

“Most of the money flooding into the electoral process isn’t coming from corporations. It’s coming from rich individuals like Sheldon Adelson and the Koch brothers.”

“In corporate governance, after a mid-century pendulum swing toward more public-spiritedness, managers and investors are now once again fixated on maximizing shareholder value. In the last few years, however, there’s been a pushback—even a small bandwagon—against the shareholder primacy norm…. The case against shareholder primacy was argued best by Steven Pearlstein last year in the Washington Post. Maximizing shareholder value, he wrote, is a “pernicious” ideology that “has no foundation in history or in law.” He continued, “What began in the 1970s and ’80s as a useful corrective to self-satisfied managerial mediocrity has become a corrupting, self-interested dogma peddled by finance professors, money managers and over-compensated corporate executives.””

“The efforts of anti-personhood activists are not only in tension with stakeholder theory on the conceptual level. In the political arena, too, a tension exists because the energy for reform is a finite resource. I believe that, in this moment, there is an opening to question the very framework of how we view corporations and their social obligations. But we won’t get anywhere on that front if the progressive left wastes its energy fighting for a constitutional amendment that is unlikely to succeed and would do more harm than good if it did.

“To cure the ills of Citizens United, we should stop fighting corporate personhood. Instead, let’s fight to make corporations more like people.”

About Hamilton Richards

I retired in 2006 as a Senior Lecturer in Computer Sciences at The University of Texas at Austin. These days I volunteer technical support for Citizens' Climate Lobby (Austin chapter), Common Ground for Texans, (CG4Tx.org), Integrity Texas (IntegrityTexas.org), and several friends.
This entry was posted in Constitutional Amendment, Corporate influence, Corporate Personhood, Supreme Court. Bookmark the permalink.

2 Responses to “Let Us Now Praise Corporate Persons”

  1. Dan Eckam says:

    Very interesting essay. I like the idea that Hobby Lobby was an instance of not enough respect for the corporation’s separate personhood. But I am still not convinced that corporations should have constitutional rights. There may not be a need for that, to achieve the same social goods. Taking the author’s examples one by one:

    The Pentagon Papers case involved freedom of the press. The First Amendment protects not just the source but the receivers — the public’s right to know. So the corporation doesn’t need rights of its own in order to invoke the protections of the Constitution.

    As for Planned Parenthood, if the plaintiffs had no standing (and indeed, being “five abortion clinics and one physician representing himself as well as a class of physicians who provide abortion services”, I’m not sure it was any of their constitutional rights that were under threat), then other plaintiffs could easily have been found, I would think.

    (I must confess, I am no expert on “standing”. But perhaps we might say that where there is constitutionally protected right to receive something [e.g. press reports or abortions], then those who provide them have constitutional grounds for standing. At least, this makes sense to me.)

    Similarly in the case of Google and the Fourth Amendment, I would think that the company could stand in for its users as a sort of proxy. If there are infringements on constitutional rights, they hurt individual persons along with the corporation.

    As for the Fifth Amendment, when a corporation loses property to government takings, then its owners do likewise — which is unconstitutional. So again, I don’t see the need for the corporation to have its own rights.

    • Dan Eckam says:

      Well, I may have done some faulty reasoning in that final paragraph, as it seems to conflict with the “separate person” principle. Just kinda thinking out loud here.

      The courts have said that another part of the Fifth Amendment, the protection against self-incrimination, does not apply to corporations. So how do they decide what applies, and what doesn’t? It sure would be helpful if we could find a clear, “bright-line” distinction to stand on. Here are some possibilities in descending order of “brightness”:

      1. “Corporations are not people, period.” This, I agree, is a mistake.
      2. “They’re (artificial) people, but they have no constitutional rights.” This makes a lot of sense to me, and I hope it can work. Still not sure if it can.
      3. “They may have some constitutional rights, but not from the Bill of Rights.” Marginally bright line, but perhaps defensible, at least, as I have not seen any indication that the founders had corporations in mind when they drafted these 10 amendments.
      4. “They have certain rights but not others.” Not a clear line.

      Even if corporations don’t have any rights under the 5th Amendment, they could be given protections by statute. And it seems pretty unlikely, and would be outrageous, for the government to arbitrarily take away property. If there was enough outrage it could be addressed politically. But if that still wasn’t enough, I’m not sure.

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