Big (Baby) Blue

On January 21st the Supreme Court voted 5-4 to reverse a 63-year-old ban preventing corporations from using their profits to either support or oppose political candidates. In the case of Citizens United v. Federal Election Commission, voting along ideological lines, the conservative justices noted that the decision declares “unconstitutional a large portion of the McCain-Feingold campaign finance reform act passed in 2002.” While the decision still prevents corporations or other public entities from giving funds directly to candidates, it now allows such entities to give unlimited funds to promote or oppose any candidate or position in the best interest of the corporation. In all fairness this decision MAY also allows labor unions and other non-profit entities the same access (I explain MAY below) but I will stick with corporations because a) they have a lot more money, b) they have been granted special status, and c) I am pro-labor. The conservative opinion of the Court noted that limiting the contributions of corporations represented a “ban on free speech inconsistent with the First Amendment of the Constitution.” In effect, by protecting corporations right to freedom of speech the Court declared corporations as persons and therefore guaranteed rights under the Constitution.

While the Court voted away 63 years of precedent (which seriously questions some justices pretentions of judicial restraint), the tactic of bestowing personhood to corporations has a long history among pro-business conservatives. In 1886 in Santa Clara County v. Southern Pacific Railroad the Court settled a case as to who had the right to determine and assess taxes on the railroad (Southern Pacific Railroad won the case). Of interest in this decision, however, was a head note included in the opinion by a Court reporter, a former railroad president J.C. Bancroft Davis which stated: “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.” With a stroke of the pen Davis wrote corporate personhood into the opinion of the Court in this decision.

Oddly, the Court had ruled no such status for corporations. Chief Justice Morrison Remick Waite, in a handwritten note which can be found in the National Archives, states that nowhere in the decision does the Court grant personhood to corporations. After the decision, however, corporate lawyers quoted the head note when arguing before the Court and conservative justices (many ideologically prone to side with corporations) eventually did write the corporation as person idea into precedent. Prior to 1886 the Bill of Rights and the Fourteenth Amendment guaranteed “rights” only to individuals, other artificial entities chartered by the state (e.g., corporations, unions, churches, etc.) only had privileges, not rights—privileges that could be revoked if the entity violated its charter. The Davis note and subsequent opinions by the Court moved corporations to the status of having rights while other entities (e.g. labor unions, non-profits, and churches) only have privilege status. Thus, a corporation can now endorse any candidate or position it desires under First Amendment protection. A church (or pastor) that did the same might find itself losing its tax-exempt status.

Personally, this decision by the Court was not unexpected, at least by me. When justices Roberts and Alito joined the Court, swinging the balance of the ideological right, many social conservatives saw the opportunity to overturn the 1973 Roe v. Wade decision which constitutionally protects a woman’s right to an abortion. Religious conservatives have claimed, rightly, that the decision violates the Image of God in the unborn child. For this reason religious conservatives have been adamant about stacking the court to provide the votes necessary to overturn Roe. The Citizen’s United decision represents a classic case of being careful what you wish for. Ideologically the same justices religious conservatives are trusting to restore rights to the unborn are equally (or even more prone) to extend personhood to corporations which are vastly more powerful, not subject to same criminal punishments as individuals, have no soul (and therefore are not moral entities) and, with the revoking of laws which previously required corporations to be re-charter, can also live into perpetuity.

The sad reality of this corporate personhood, insofar as it protects political freedom of speech, is that corporations are not subject to the same constraints as you or I. If I yell “Fire” in a crowded theatre I am subject to punishment and fine (I may falsely induce a panic which even under the First Amendment I do not the right to do). Political ads, however, are not subject to the same truth in advertising laws as those of products. If an advertisement makes false claims about a product that company can be sued for false advertising. If a false claim is made about a candidate only the candidate can seek recourse by suing for libel. Unless there is a serious defamation of character the candidate is often unwilling to do so since it generally produces a negative backlash against the candidate. The result, I fear, is that we will not see the type of outrageous “Swift boat” types of campaign ads which will only make political campaigns more negative and poison an already cynical electorate.

I take the idea of Image of God quite seriously. It is why I am pro-life and why I find this decision by the Court to be abominable. Yet, I have yet to hear anyone among the leading religious conservatives condemn the Court on this decision. Brethren, if we don’t stand for principle, even if it means confronting those to whom we are allied, we are nothing more than any other special interest group. If that is who we are we should not be surprised when that is the way we are treated—regardless of who is in power.