One issue that keeps coming up in the debate over Neil Gorsuch’s nomination to the Supreme Court is that of corporate personhood. Democratic senators keep bringing up what they claim are landmark rulings in the Citizens United and Hobby Lobby Supreme Court cases that corporations are people.
“Any logical person believes that corporations are not people,” was how Sen. Brian Schatz, D-Hawaii, put it on the Senate floor today, amidst a lengthy speech complaining about the court’s direction in recent years.
But that grammatically ill-advised statement, unfortunately, implies that seven of the nine Supreme Court justices involved in the Hobby Lobby ruling are not logical people. That includes Justices Breyer and Kagan, who explicitly refused to attach their names to that argument. Moreover, even the other two justices implicitly accepted the idea of corporate personhood, but had slightly different ideas about it. What’s more, corporate personhood wasn’t at the heart of Citizens United, either.
In the Hobby Lobby case, the Court ruled 5-4 that under the Religious Freedom Restoration Act, the company by that name cannot be forced to provide forms of abortifacient contraception that its owners consider immoral. But seven of the nine justices rejected the argument that a business’s legal status as a corporation somehow cancels out the religious freedom of its owner or owners in their conduct of business. Eric Posner, writing at Slate, easily debunked the argument made by the other two justices — Ruth Bader Ginsburg and Sonia Sotomayor — by pointing out the obvious:
Once Ginsburg says that “the exercise of religion is characteristic of natural persons, not artificial legal entities,” she gives away the game. A church is an artificial legal entity.
As Justice Samuel Alito’s majority opinion notes, “no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.” This is probably why Justices Elena Kagan and Stephen Breyer explicitly declined to join in that part of Ginsburg’s dissent.
And strictly speaking, even Ginsburg’s Hobby Lobby dissent demonstrates that she believes that corporations are people. She just wants to make more distinctions between corporations so that some (non-profits) are more “person” than others (for-profit).
The denial of corporate personhood would lead to all kinds of absurd consequences and upend what we currently view as common sense about legal rights. The easiest way to prove this is to point to journalism. We believe the constitutional prohibition on regulating the press includes a prohibition on infringing the First Amendment rights of the New York Times Company, a for-profit corporation that is traded on the stock exchange. If anyone wants to take the other side of that argument, have fun.
Garrett Epps laid all of this out in 2012 from a left-wing perspective. His American Prospect piece was highly critical of Citizens United, but it showed a lot more understanding of that decision and of the law than today’s crop of Democratic senators:
The problem is not that corporations are “persons” under the law. Corporations have always been “persons”—that is and always has been, in fact, the definition of a corporation, a “fictive person” able to own property and enter into legal agreements. Also, the problem is not the idea that corporate “persons” have free-speech rights. Of course they do. The idea that corporations have some of the free-speech rights that people have is essential to important Court decisions like New York Times Co. v. Sullivan (1964) and New York Times Co. v. United States (1971), which removed the threat of government censorship from American media.
So again, this idea that corporations aren’t people, or that the Supreme Court has taken a radically different direction of late by turning them into people, should serve as a marker of ignorance in any person you hear utter it. That person, you can conclude, either suffers from or is exploiting the confusion between different kinds of corporations.
Corporate money in politics, as most people understand the phrase, means something like AT&T spending a million dollars to help Senator Snodgrass get elected. Indeed, earlier court decisions about campaign finance restriction had discussed the potential consequences of for-profit businesses using “resources amassed in the economic marketplace” to dominate political life.
But has that happened in the time since Citizens United? Not at all. For-profit business corporations continue to lobby and set up PACs, as they always have, but they have almost universally avoided spending their profits on elections. The flood of new money after Citizens United has come not from corporate America, but almost entirely through political groups with either wealthy individual donors or strong grassroots fundraising.
Now, because these non-profit groups are technically “corporations” (as are most political campaigns, cities and towns, labor unions, trade associations, etc.) ignorant senators can preach about how corporate money and corporate personhood are the big problems. But the very few cases where for-profit corporations actually spent money on electioneering or gave it to groups that do so after Citizens United have been noteworthy precisely because they are rare exceptions.
I guess if you want to take anything away from all this, it should be that when you hear someone — be it a Democratic senator or anyone else — complain about corporate personhood as the issue in recent Supreme Court drama, know that you are listening to someone who is deeply ignorant and it isn’t worth your time. You don’t have to like Citizens United or Hobby Lobby to recognize ignorance when you hear it.
