Supreme Court: Government Can Suppress Speech of Citizens, Not Corporations

By David Lazarus 
First Published by the San Francisco Chronicle, June 27, 2007

The Supreme Court loosened restrictions on campaign financing this week by ruling that corporations and unions are entitled to run a wider variety of political ads in the final weeks of federal elections.

This was good news for corporations and unions. And bad news for Shannon Tracey.

Tracey is local projects director of Democracy Unlimited of Humboldt County, a grassroots group dedicated to repealing the notion of corporate personhood — a legal distinction that grants constitutional rights to businesses and other organizations.

“It’s awful that the court is continuing to uphold the idea that companies have what should be rights for human beings,” Tracey said of Monday’s decision, in which the justices backed a lower-court ruling that a Wisconsin anti-abortion group should have been allowed to air ads during a 2004 Senate race.

The 5-4 Supreme Court vote was widely seen as opening a loophole in the 2002 McCain-Feingold campaign-finance law, which placed strict limits on donations to political campaigns. In effect, it broadens the types of ads that moneyed interests can run prior to an election.

Editor’s note: while the writer calls the limits “strict” the McCain-Feingold bill more than doubled the amounts that wealthy individuals may invest in candidates to $4600 per candidate, per federal election ($2300 each for primary and general elections).

For Tracey and other foes of corporate personhood, the ruling doesn’t change the mountain they’re trying to climb. It only makes it a little steeper.

“The challenge we face is the same,” said Jeff Milchen, founder of ReclaimDemocracy.org in Montana. “We’re still seeking an end to constitutional rights being given to corporations.”

The stakes, he said, couldn’t be higher.

“Our democracy is founded on the idea of human rights, that the legitimate source of political power comes from the people,” Milchen said. “Allowing companies to exercise political power comes at the expense of citizens. It’s a zero-sum game.”

I wrote a few years ago about the origins of corporate personhood. Perhaps this is a good time to review the basics. Not everyone may realize that the Constitution’s phrase “We the people” applies just as much to the likes of Starbucks, Google and AT&T as it does to you and me.

The founding fathers probably never envisioned that private companies would one day enjoy the legal status of people — just as they couldn’t have anticipated the availability of cafe lattes on every street corner, Internet searches and cell phones.

There’s no mention in the Constitution of corporations being people. It could be argued that private companies were the last thing that Colonial rebels wanted to protect when they rose up in the Boston Tea Party in 1773.

The colonists weren’t attacking the British government. They were making their displeasure known to Britain’s East India Co., which owned the tea that ended up floating in the harbor.

Until the 19th century, corporations were basically viewed as artificial creations — the property of owners. They could be taxed and regulated pretty much as state authorities saw fit.

Things changed after the Civil War. As the U.S. economy rapidly expanded, corporations increasingly sought ways to strengthen their political influence and protect their wealth.

Business leaders focused on the 14th Amendment, adopted in 1868. It declares that no state can “deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.”

Corporate lawyers of the day argued that corporations are in fact groups of people and, as such, should have the same rights as people themselves.

A number of cases were heard in various courts, including Santa Clara County vs. Southern Pacific Railroad Co., in which the railroad challenged the county’s claim of unpaid taxes by arguing that it was forced to pay an unfairly high amount and therefore had been deprived of equal protection under the 14th Amendment.

In other words, the railroad was defining itself legally as a person.

In 1886, the Supreme Court accepted this argument with virtually no discussion. Chief Justice Morrison Remick Waite declared that “The court does not wish to hear argument on the question whether the provision in the 14th Amendment … applies to these corporations. We are all of the opinion that it does.”

There it was. In a mere two sentences, the notion of corporate personhood was established.

This week’s court ruling only reinforces the concept. There was no question that companies and other economic interests enjoy a right to free speech as per the First Amendment. The only question was whether the McCain-Feingold law unfairly limited that right.

The matter of corporate personhood would appear to be settled. But opponents of the concept maintain that it was essentially a historical accident — no hearings, no discussion, a two-sentence decision — and that it’s not too late to even the playing field.

“The biggest stumbling block to democracy is corporate constitutional rights,” said Tracey at Democracy Unlimited. “The notion of corporations having the same constitutional rights as you and I is inherently unjust.”

By that, she means that both companies and individual people may enjoy a right to free speech, but a company, because of its relatively vast wealth, is capable of exercising that right with far greater force and influence.

Milchen at ReclaimDemocracy.org agreed. “Economic power is translating into political power,” he said.

Milchen also found it interesting that on the same day the Supreme Court issued its ruling about corporate free speech, it also ruled that an Alaska high school didn’t violate a student’s rights by punishing him for displaying a banner that read “Bong Hits 4 Jesus.”

“Think about it,” Milchen observed. “The court ruled that the government has the authority to suppress the free speech of genuine human beings but not that of corporations. It’s a rather striking contrast.”

© 2007 San Francisco Chronicle