corporate personhood

A Jury of One's (Corporate) Peers

This week saw a brief but telling exchange before the Supreme Court involving the constitutional status of corporations.
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A Chance to Overrule Citizens United?

Justices Ginsburg and Breyer suggest that Citizens United should be revisited via a case from Montana, based on the past two years' experience.
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Corporate Personhood Debunked (This Time)

It's not often these days when you can't get even one of the conservative Justices on the Supreme Court to ignore precedent, twist the facts, ignore logic, or do whatever else it takes to help Big Business consolidate the already substantial power it exercises over ordinary Americans. Today is such a day.

In FCC v. AT&T, the giant telecom corporation, backed by supportive amicus briefs from numerous corporate interests, argued that inanimate corporations have "personal privacy" for the purposes of the Freedom of Information Act (FOIA).

Several years ago, the FCC investigated alleged overcharges by AT&T. After the investigation, AT&T's competitors filed a FOIA request to get the FCC to release documents on what they had found. The FCC said it would not disclose confidential commercial information about AT&T, pursuant to a specific exemption in the FOIA statute. However, the company argued that certain additional material would cause the company embarrassment and therefore fell into a separate statutory FOIA exemption allowing government agencies not to disclose material compiled for law enforcement purposes that would "constitute an unwarranted invasion of personal privacy."

The Third Circuit Court of Appeals had ruled for AT&T, holding that FOIA's statutory language "unambiguously" indicates that a corporation may have a personal privacy interest within the meaning of this FOIA exemption. The court said that: (1) FOIA defines "person" to include a corporation; and (2) the term "personal" is derived from the word "person" and is simply the adjectival form of the word.

Aside from leading to a bizarre definition of "personal," Big Business's idea of corporate personhood would significantly weaken the ability of news organizations and government watchdogs to examine government records containing vital information about corporate behavior affecting public health and safety – records that would otherwise remain hidden from the American people.

Fortunately, this assertion of corporate personhood was too much even for the Corporate Court that gave us Citizens United. A unanimous Court noted that in common conversation, the term "personal" is often used as the opposite of "business-related." Moreover, a simple look at a dictionary suggests that the word "personal" does not relate to artificial entities like corporations.

The U.S. Chamber of Commerce submitted an amicus brief in support of AT&T. Its extremism has reached the point that not even one Justice on the Supreme Court was willing to accept its view. Keep that in mind the next time the Chamber purports to represent mainstream values as it seeks to weaken Americans' efforts to impose reasonable regulations on businesses and hold them accountable when they do wrong.

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PFAW and Allies Deliver 750,000 Constitutional Amendment Petitions to Congress

This morning, a group of allied organizations held a rally at the Capitol to mark the first anniversary of the Supreme Court’s Citizens United decision. At the rally, People For the American Way and others delivered over 750,000 petitions calling for a constitutional amendment to reverse Citizens United to members of Rep. Donna Edwards’ staff. Rep. Edwards introduced a constitutional amendment in the House last year, and has been a strong supporter of efforts to reverse the decision.

Representatives from People For, Public Citizen, Move to Amend, Free Speech For People, and MoveOn deliver 750,000 petitions to members of Rep. Donna Edwards’ staff:


People For’s Marge Baker speaks to the crowd:

Protesters put a “for sale” sign on the Capitol:

A protester contests the notion of corporate personhood:

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First Monday in October

Today, as the Supreme Court opens its new term, the major news concerns a decision from last term: the solid rebuke of Citizens United by a bipartisan group of more than 50 legal scholars and public officials. The impact of that decision is poisoning election campaigns around the country and, through the Congress that will be elected as a result, will doubtless impact the lives of every American.

This term, the Court will be deciding at least one new corporate personhood case, as well as other cases affecting our most important rights, including freedom of speech, church-state separation, and due process. Some of the ones we'll be looking at:

Corporate Personhood & Privacy: AT&T v. FCC. The Freedom of Information Act (FOIA) generally requires federal agencies to disclose records to the public upon request. There are numerous exceptions, such as records or information compiled for law enforcement purposes whose disclosure could reasonably be expected to constitute an unwarranted invasion of "personal privacy." The Supreme Court will decide if "personal privacy" applies to corporations, as well as to people.

Free Speech: Snyder v. Phelps. Fred Phelps and his fellow fanatics from the Westboro Baptist Church are infamous for picketing the funerals of military personnel with messages such as "God Hates Fags." According to Phelps, the deaths of U.S. servicemembers are God's punishment for the nation's tolerance of homosexuality. The Supreme Court will determine whether Phelps' funeral-picketing activities are protected by the First Amendment. The case will be argued Wednesday.

Free Speech: Schwarzenegger v. Video Software Dealers Association. The Supreme Court will address whether a California law restricting the sale of violent video games to minors violates the free speech protections of the First Amendment. California argues that states can restrict minors' access to violent material just as they can with sexual material. During oral arguments in November, we may get a sense as to whether the Supreme Court agrees.

Church-State Separation: Arizona Christian Tuition v. Winn. Arizona has a program that gives parents tax credits for tuition at private schools. Most parents use these credits toward tuition at religious schools. A group of taxpayers sued, arguing that this violates the Establishment Clause of the First Amendment. Before the Supreme Court can decide that issue, it must first determine if the plaintiffs have standing to sue. In 2007, the Roberts Court limited the circumstances in which taxpayers can challenge government expenditures that violate the Establishment Clause, and they may do so again in this case.

State Secrets Privilege: General Dynamics v. U.S. and Boeing v. U.S. These cases are actually not about the most infamous uses of the states secret privilege, which notoriously has been used to shut down lawsuits against the government alleging U.S. complicity in torture and other illegal activities. This time, it's the federal government that has initiated the lawsuit, which raises interesting Due Process issues. These consolidated cases address whether the United States can sue two defense contractors for failing to fulfill their contractual obligations, while at the same time using the state secrets privilege to prevent the companies from presenting a defense.

Employment of Immigrants: Chamber of Commerce of the United States v. Whiting. In 2007, Arizona passed a law targeting employers who hire undocumented immigrants by revoking their licenses to operate in the state. The state law also requires employers to participate in a federal electronic employment verification system that federal law specifically makes voluntary. The Supreme Court will decide whether federal immigration legislation preempts Arizona's laws.

Preemption - Right to Sue Drug Manufacturers: Bruesewitz v. Wyeth. The federal Vaccine Act preempts certain design defect lawsuits in state court against child vaccine manufacturers "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings." The Bruesewitz family argues that their lawsuit isn't preempted because the side effects were not unavoidable: A safer, alternative vaccine was available. The Supreme Court will decide if the Vaccine Act preempts the family's suit.

Preemption - Right to Sue Car Manufacturers: Williamson v. Mazda. An accident victim sued Mazda in state court for negligently choosing to install a lap-only seatbelt in the back center seat instead of a safer lap/shoulder belt. However, federal car safety regulations at the time specifically allowed lap-only seatbelts. The Supreme Court will decide if Congress intended the federal safety regulations to preempt such state lawsuits.

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An economic historian debunks the originalist rhetoric of Citizens United

Justin Fox, on his Harvard Business Review blog, has an interesting take on the Supreme Court’s decision in Citizens United v. FEC. He interviews Brian Murphy, a history professor at Baruch College who studies the economics and politics of early America. The original laws of incorporation, Murphy says, were developed to organize civic organizations and municipal governments, and later were applied to economic enterprises, partly as a way to dilute their growing influence. “The intent of these laws is therefore the opposite of what the Court asserted in Citizens United,” he says.

Let me put it this way: the Founders did not confuse Boston's Sons of Liberty with the British East India Company. They could distinguish among different varieties of association — and they understood that corporate personhood was a legal fiction that was limited to a courtroom. It wasn't literal. Corporations could not vote or hold office. They held property, and to enable a shifting group of shareholders to hold that property over time and to sue and be sued in court, they were granted this fictive personhood in a limited legal context.

Early Americans had a far more comprehensive and nuanced understanding of corporations than the Court gives them credit for. They were much more comfortable with retaining pre-Revolutionary city or school charters than with creating new corporations that would concentrate economic and political power in potentially unaccountable institutions. When you read Madison in particular, you see that he wasn't blindly hostile to banks during his fight with Alexander Hamilton over the Bank of the United States. Instead, he's worried about the unchecked power of accumulations of capital that come with creating a class of bankers.

The view of corporations as “persons” was meant for legal convenience and economic risk reduction, Murphy argues, and it was the courts, not lawmakers, who started blurring the distinction between the rights of individuals and corporations.

Given the public’s overwhelmingly negative reaction to Citizens United, it seems that Americans continue to understand the difference between corporations and individuals, their purpose in society, and their rights. Americans haven’t grown out of touch with the fundamental values of the Constitution—the Court has.


 

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