Money, speech, and corporate personhood

Yesterday, the Supreme Court heard the latest challenge to the McCain-Feingold Act, the act that set stringent limits on the ability of unions and corporations to air ads that specifically mention a candidates name within 60 days of the election. Wisconsin Right to Life (a corporation under federal law) sued, claiming that this restriction violated their right to free speech under the First Amendment. And, judging by the questions of the Supreme Court Justices during yesterday’s arguments, it looks like there’s a decent chance that the Roberts court will overturn this portion of the McCain-Feingold Act when it releases its decision sometime before June.

The United States has the Federal Election Campaign Act (FECA)on the books that make it illegal for another country or non-citizens to donate money to candidates (see the FEC foreign national guidebook). Because of the FECA, foreign governments, individuals, corporations, organizations and associations, and parties are not permitted to donate money because doing so may unduly influence the candidate(s) who received those donations. Because we don’t want people like President Hugo Chavez of Venezuela, King Abdullah of Saudi Arabia, and President Vladomir Putin of Russia interfering with our internal politics, even the political activities of allies and their citizens are severely constrained within the United States.

Unfortunately, in a world where Wal-Mart has the 22nd largest economy in the world and thus has more economic power than even Saudi Arabia, and where each of the top four automobile makers (GM, Toyota, DaimlerChrysler, and Ford) individually have more economic clout than Venezuela and combined have a larger economy than Russia, why is it we keep allowing corporate money to equal free speech?

A large part of the problem is that the U.S. permits corporations to claim to be “juristic persons”, or a group that is not a human being but nonetheless has the responsibilities of a real person. Juristic persons can be charged with crimes, have their property seized, etc. just as real people can. The problem comes when you give a legalistic construct intended to codify the legal rights and responsibilities of groups of people the rights of a living, breathing individual human. Our natural or God-given rights enshrined in the Constitution do not inherently apply to human-created organizations such as corporations. And when you’ve got companies like Nike claiming the right to lie in advertising and public relation as free speech under the First Amendment, something has gone horribly, terribly wrong.

In an era where 95 of the 150 most powerful economies in the world are corporations, we should stop treating them as if they are people and start treating them as if they are nations instead. Since we don’t permit foreign nationals to influence our elections, we should similarly not permit corporations to spend corporate money in order to influence our elections. Individual corporate employees are citizens and are natural human beings, and as such they have their naturalistic right to free speech (although no-one ever said that speech couldn’t be sensibly regulated – if the Congress has the authority to invoke laws on libel and threatening speech, I don’t understand why they lack the authority to regulate laws on campaign speech). But the corporate entities themselves are not people – they are artificial constructions of people, and as such they have only the rights and privileges we choose to grant them.

It’s time to recall some of the very rights that corporations claim that they simply do not deserve.

UPDATE: I’m not actually calling for nations to be treated as true nations, although that wasn’t sufficiently clear from what I wrote. I want corporate money to be treated as if it came from a foreign souce instead of treated as if it came from a person. This gets rid of the “corporate personhood” problem and makes corporate political donations outright illegal.

[Crossposted from The Daedalnexus]

9 replies »

  1. Thanks, thanks, and thanks some more. This bit of foolishness is at the core of one of our biggest problems. The assumption in the Constitution was that the engines of power would be harnessed to an informed public opinion, but along the way that came unhitched and now the engines of power spin on big corporate money.

    Not that there would be a bat’s chance in hell of this ever happening, but the only path to true democracy I think requires that you:

    a: ban ALL political contributions and make campaigns 100% publicly financed;

    b: pay officials in a manner that’s competitive with what they could be earning in the private sector (yeah, this ain’t cheap, but when you evaluate the idea in terms of an enlightened Total Cost of Ownership proposition it’s actually probably cheaper than what we have now;

    c: erect barriers preventing candidates from leaping from the corp world into positions of authority over the companies and sectors they came from and then prevent them from leaping back after they serve – this is necessary to avoid corporate capture of the government.

    A LOT of if in that sentence, and the very thought of it generates a lot of laughter, I’m sure. But hey, a guy can offer a purely theoretical idea from time to time, right?

  2. One of the things I realized is that this could be misconstrued as a call for extraterritoriality for corps (CyberPunk and/or ShadowRun, anyone?), and that’s most definitely not what I’m calling for here.

  3. When was the last time a corporation had its’ charter revoked? Not Enron, not an accounting company, not a crooked investment bank, not a company that kept on poisoning people after it was well known…

    Corporations should have rights that are subordinate to humans, and responsibilities that exceed those of humans.

    The purpose of permitting corporations is to benefit the country. If they are not generating substantial net benefits to the country, then they should be taxed at higher rates to make up for that, or have the privilege of existing revoked.

    However, treating a corporation as a nations seems as if it might make matters worse. Countries don’t pay taxes to others, and are not bound by the laws of other countries – that’s why there are treaties. We would be in a worse place if corporations could act as sovereigns.

    Imagine if there were different laws that applied once you pulled into Walmart’s parking lot, and neither the police or army could come to your rescue without starting a war. Hallibuton wouldn’t have to move to Dubai to dodge lawsuits and taxes…

    In fact, corporations already act far too much like nations. There’s a great book called ‘Global Reach’ that details this transnational accumul;ation of power by the larger corporations and the problems it has caused. It’s about 20 years out of date now, but I can’t think of what has truly changed, except the growing wealth and power of these companies.

  4. Jon – thanks for pointing out that my “treating corporations like nations” was too broad and not sufficiently explained. This was part of my snide cyberpunk point in an earlier comment.

    What we need to do is treat corporate MONEY just like we treat foreign MONEY – disallow it completely in campaigns. As you pointed out, corporations already have too much transnational power, so giving them truly international rights would be a giant step backward, not forward.

  5. The biggest single error — at the heart of all this strife we now endure — was the Supreme Court decision erroneously delcaring money equivalent to speech.