The Question Nobody’s Asking Bush’s Nominees

By Ted Nace 
Published October 6, 2005

Supper smells great, the kids are finally sitting down — at last, a brief respite in a hectic day. Then the phone rings. There’s a telemarketer on the line intruding on your hard-won moment of tranquility.

Thankfully, that scenario occurs less often today since Congress created the Do-Not-Call Registry in 2003 — a system allowing Americans to block most unwanted telemarketing calls. Wildly popular among both Democrats and Republicans, the measure passed the Senate 95-0 and the House 412-8. Within months 50 million people had signed up for “don’t bug me” status.

But the telemarketers still held a trump card. Their attorneys sought relief in federal court in Denver, and a sympathetic judge, Edward Nottingham, blocked the Registry on the grounds that it might harm the First Amendment rights of telemarketing corporations.

Ultimately, Nottingham’s slap-down itself was quashed by a higher court, but it did raise a central question: do corporations deserve First Amendment protection?

Besides telemarketing calls, courts also have applied such protection to such “speech” as corporate political spending and advertising. But are these kinds of “speech” by business entities really equivalent to the speech of human beings?

Considering the central role of corporations in American society, this seems a critical topic for Senators to ask a Supreme Court nominee. Yet in the confirmation hearings for Justice Roberts, no such questions were raised by either Republicans or Democrats. Nor does it appear likely that anyone will query Harriet Miers, herself a former corporate attorney, on the issue. That’s unfortunate, because the Constitutional soil underlying the notion of corporate rights is actually quite thin. Nowhere does the Constitution even mention corporations, much less justify blocking democratically-enacted regulation on their behalf. Construction of corporate rights always has depended on logical leaps — judicial activism at its most ambitious.

When the Constitutional Convention convened in 1787, delegates hotly debated the role of corporations in American society. A majority had been instructed by their home states to oppose giving power to corporations. The prevailing fear was that large corporations might come to overwhelm American politics in the way that the East India Company had dominated Parliament or what Thomas Jefferson later termed “the aristocracy of our monied corporations.”

Failing to win explicit protections in the Constitution itself, corporate interests sought sympathetic court interpretation of vague provisions like “due process.” By the 1880s, the Supreme Court was packed with former railroad attorneys who scored their first big success in the1886 Santa Clara County v. Southern Pacific Railroad ruling that institutionalized corporate “personhood” for purposes of applying protections of the Fourteenth Amendment. Since then, at least ten additional Supreme Court decisions have expanded corporate rights.

The first Supreme Court decision extending First Amendment protection to corporations arrived in 1978, when the Court overturned a Massachusetts law barring corporate spending on certain ballot questions. Surprisingly, the late Justice Rehnquist, generally one of the most conservative Justices, dissented strongly. “Extension of the individual’s freedom of conscience decisions to business corporations strains the rationale of those cases beyond the breaking point.” wrote Rehnquist. “To ascribe to such artificial entities an ‘intellect’ or ‘mind’ for freedom of conscience purposes is to confuse metaphor with reality.”

Do Bush’s appointees to the Supreme Court share the same skepticism about corporate rights as Rehnquist, his former mentor? It would be nice to find out.

With the Supreme Court acquiescing to corporate interests and Senators unwilling to ask tough questions, it falls to citizens to to break the silence about corporate legal privilege and power Whether the topic is energy policy, campaign finance reform, health care, the Iraq War, or simply the ability of a family to have a quiet meal at home, that power plays an overwhelming role in shaping American life.

Ted Nace is the author of Gangs of AmericaThe Rise of Corporate Power and the Disabling of Democracy (Berrett-Koehler, 2003, 2005). He is active with ReclaimDemocracy.org, a non-profit organization working to restore citizen authority over corporations.

© 2005 Ted Nace

Read the NY Times’ review of Gangs of America