The cry of "Corporations are not people!" after 'Citizens United' was not quite right. The US Supreme Court has tended to restrict corporate rights when it has treated corporations as persons, artificial legal persons; and to grant them rights when it has treated them as bearers of the rights of the underlying owners and members using the corporate form to associate together.

This is an interesting account of cases concerning the rights of corporations, non-profit and business both, that demonstrates how inconsistently the law has treated them. Are corporations artificial legal persons separate from their members or owners, such as when their members are not held liable for the debts of the corporation; or are they instead just a legal form for associations of individuals, such as when SCOTUS in 'Citizens United' ruled that corporate campaign funding and publications were the expression of a corporation's members considered as associated natural persons? The pendulum has swung back and forth, and corporations' various claims to possess rights have been chopped about to grant them some but not others. The pendulum has now swung far in favour of the corporations, with Justice Alito writing in the 'Hobby Lobby' decision that when corporate rights are granted, it is in order to protect the rights of the underlying human beings. The cases have sometimes involved deception and misunderstanding on the part of judges and lawyers: a key case was intentionally wrongly reported by the compiler of SCOTUS' decisions to pretend the court had ruled that 'persons' in the Constitution includes corporations, a report later relied on in other cases. This inconsistency has continued all the way down through 'Citizens United', which was decided in the corporations' favour just seven years after the Court had ruled the other way in 'McConnell v FEC'.

I don't, however, think the corporate rights issue was the most damaging aspect of the decision: corporations could already use nominally separate advocacy groups to spend without limit on independent publications, only without naming candidates within 60 days of an election. The worst was the Court's absurdly naive restriction of the concept of corruption to quid pro quo bribes. Politicians' pursuit of campaign spending funds, even monies spent by independent organisations and PACs, is inherently corrupting of their role in a democracy. They ought to be responsive to the views of their constituents and ideas of the good of their country, not to donors and big spenders: Congressional representatives spend half their working time on fund-raising! Campaign spending should be limited for candidates, individuals and corporations all, so that candidates get back to focussing on responding to their fellow citizens rather than on getting bankrolled. And for-profit corporations should be limited most of all because they are not simply associations of well-meaning citizens, but organisations with their own money-making purpose, which renders all their political interventions suspect. ( )

Nice, more or less neutral history describing corporate rights evolution, especially how the corporation as a legal "person" influenced the accretion of "rights" over time. First property rights, then "liberty" rights. The interplay between advancing minority rights (women, African Americans, etc) and corporate rights was interesting. ( )

A well researched and written book about our countries evolution toward more corporate rights many times at the expense of individual rights. The book starts with the London Company and the Hudson Bay Company in colonial times right up to the present day. Mostly the book is a discussion of various court cases, lawyers and judges (for and against) that made corporations the power brokers that they are today. Winkler doesn't pass judgement and leaves whether this is a good or bad thing up to the reader. A great piece of historical writing. ( )

The cry of "Corporations are not people!" after 'Citizens United' was not quite right. The US Supreme Court has tended to restrict corporate rights when it has treated corporations as persons, artificial legal persons; and to grant them rights when it has treated them as bearers of the rights of the underlying owners and members using the corporate form to associate together.

This is an interesting account of cases concerning the rights of corporations, non-profit and business both, that demonstrates how inconsistently the law has treated them. Are corporations artificial legal persons separate from their members or owners, such as when their members are not held liable for the debts of the corporation; or are they instead just a legal form for associations of individuals, such as when SCOTUS in 'Citizens United' ruled that corporate campaign funding and publications were the expression of a corporation's members considered as associated natural persons? The pendulum has swung back and forth, and corporations' various claims to possess rights have been chopped about to grant them some but not others. The pendulum has now swung far in favour of the corporations, with Justice Alito writing in the 'Hobby Lobby' decision that when corporate rights are granted, it is in order to protect the rights of the underlying human beings. The cases have sometimes involved deception and misunderstanding on the part of judges and lawyers: a key case was intentionally wrongly reported by the compiler of SCOTUS' decisions to pretend the court had ruled that 'persons' in the Constitution includes corporations, a report later relied on in other cases. This inconsistency has continued all the way down through 'Citizens United', which was decided in the corporations' favour just seven years after the Court had ruled the other way in 'McConnell v FEC'.

I don't, however, think the corporate rights issue was the most damaging aspect of the decision: corporations could already use nominally separate advocacy groups to spend without limit on independent publications, only without naming candidates within 60 days of an election. The worst was the Court's absurdly naive restriction of the concept of corruption to quid pro quo bribes. Politicians' pursuit of campaign spending funds, even monies spent by independent organisations and PACs, is inherently corrupting of their role in a democracy. They ought to be responsive to the views of their constituents and ideas of the good of their country, not to donors and big spenders: Congressional representatives spend half their working time on fund-raising! Campaign spending should be limited for candidates, individuals and corporations all, so that candidates get back to focussing on responding to their fellow citizens rather than on getting bankrolled. And for-profit corporations should be limited most of all because they are not simply associations of well-meaning citizens, but organisations with their own money-making purpose, which renders all their political interventions suspect. ( )

Intellectual Dishonesty Shaping The Country

It is endlessly entertaining to examine Supreme Court decisions, to follow the logic and often the prejudice and corruption they comprise. We The Corporations selectively follows the tribulations of the 14th amendment, designed specifically to prevent discrimination among the newly freed slaves following the Civil War. Corporations immediately overtook it, claiming it was meant for them. The results have been dispiriting to say the least. Between 1868 and 1912, of 604 14th amendment cases, only 28 were on behalf of blacks, and most of them lost. Corporations on the other hand, began an endless winning streak, culminating in the execrable Citizens United decision that has allowed companies to buy election issues, and of course, candidates.

The evidence shows that corporate constitutional rights as persons is a lie. Corporations have pummeled the courts with suits claiming natural person rights, and have won enough victories to make it law. Along the way, corrupt and incompetent justices have attributed rights to them that do not exist, while corporate lawyers have interpreted the constitution to make it seem the founders had always intended to put corporations on an equal footing with people. It is not so, says Adam Winkler in this engrossing book.

Corporations successfully argue that they have no race or religion when it suits them, and also that stockholders’ race or religion exempts the firms from laws they don’t like. Piercing the corporate veil to claim the stockholders control in cases where it is beneficial, while claiming the corporation is an artificial construct of law where no humans control (for example when prison beckons). That corporations have the sole goal of making money for stockholders, but also that corporations have unlimited funds for political races without regard to stockholders.

The Roscoe Conkling case is particularly instructive. Conkling was on the committee that drafted the 14th amendment. Later, representing Southern Pacific Railroad, and after all the other drafting committee members had died, Conkling told the Supreme Court he had the official notes of the committee’s deliberations, and they said the intent was always to extend person rights to companies. Without anyone to refute these claims, and apparently without anyone ever examining the notes, the Supreme Court bought it – hook, line and sinker. Later examination showed the notes intimated no such thing, and neither did the wording of the amendment, nor any of the deliberations across the country at the time of debate, hearings and passage. But the law of the land changed to accommodate this lie. Conkling’s professional descendants in the US Chamber of Commerce claim to win 70% of the corporate rights cases they bring to the Supreme Court.
It all leads sadly to Citizens United, in which corporations got not just 14th amendment rights, but first amendment rights – everything but the vote itself. The Roberts court shamed itself and in particular Chief Justice Roberts himself. Roberts had promised to be a minimalist, delivering narrow, incremental decisions that didn’t overreach. But in Citizens United, he expanded the minor claim that a film with a small corporate contribution could be shown during the election – to broadly encompass unfettered corporate free speech, unlimited cash contributions, plus the overturning of previous precedents, none of which were sought in the matter. The country cried Shame, with 80% disagreeing that corporations should be totally free to spend on politics at will. Winkler says Citizens United was not a product of the Roberts court so much as the culmination of “a two hundred year struggle” by business to have it all ways.

What is striking is that mere mortals can easily see where the Supreme Court went off the rails, yet the decisions stand. In lieu of common sense, politics prevails. Personal prejudices and agendas beat the constitution. Contradictions allow for any kind of interpretation that favors corporations. And lawyers and judges continue to cite case law incorrectly. The insiders know it is all wrong. Winkler quotes Delaware (with the most lenient corporate laws in the country) Chancery Judge Leo Strine that a corporation “is a distinct entity that is legally separated from its stockholders, managers and creditors. That is the whole point of corporate law, after all.” Unless you’re a Supreme Court justice, it seems.

David Wineberg ( )