“Corporations are not People,” A Book Review

June 17, 2012

Corporations ARE NOT People, by Jeffrey D. Clements (San Francisco: Bennett-Kohler, 2011)

Those who are concerned with the anti-democratic implications of the Citizens United decision of the Supreme Court will find in this book a useful and passionate guide to the issues and a road map for getting us out of our present state of corporate domination of our polity and society. Jeffrey Clements is a lawyer and cofounder of Free Speech for People, an organization dedicated to overturning Citizens United and passing the People’s Rights Amendment to the Constitution. The Foreword, “Fighting Back,” is by Bill Moyers.

Citizens United was a 5-4 decision of the Supreme Court that outlawed provisions of the McCain-Feingold campaign finance law that sought to limit campaign spending by corporations and other organizations such as labor unions. The Court majority argued that corporations have the same free speech rights as individuals, and that spending money constitutes speech.

The doctrine that corporations have the same rights as people dates to the post-Reconstruction period of the late nineteenth century. A conservative, pro-business Supreme Court permitted the imposition of Jim Crow segregation and disenfranchisement of blacks in the South, in spite of the Fourteenth and Fifteenth Amendments. which were intended to protect the freed slaves’ rights as citizens of the United States, including the right to vote. The Court then perverted the Fourteenth Amendment (since it was no longer being used for its intended purpose), to protect corporations from almost all government regulation, either by states or by the federal government. 

Throughout the twentieth century, this doctrine of corporate personhood was gradually and episodically rolled back to permit significant regulatory advances, most particularly in the 1930s and the 1960s. Clements documents how corporate lawyer—and later Supreme Court Justice—Lewis Powell began in the 1970s to build a constitutional counteroffensive designed to reestablish the doctrine. Citizens United is the most recent and most significant victory in that campaign.

Clements reminds us that corporations exist only because they are chartered by governments (most commonly by the state of Delaware), and that the charter may be revoked if the corporation ceases to serve the public good. This is a point commonly forgotten, but is a key to rethinking Citizens United.

Clements proposes a threefold course of action. First, the Constitution must be amended to overrule Citizens United. To force Congress to act, he calls for a massive national campaign.  The proposed text of the Twenty-Eighth Amendment is as follows:

SECTION I. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

SECTION II. The words people, person or citizen as used in this Constitution do not include corporations, limited liability companies, or other corporate entities established by the laws of any state, the United States, or any foreign state.  Such corporate entities are subject to any regulation as the people, through their elected state and federal representatives, deem reasonable and as are otherwise consistent with the powers of Congress and the States under this Constitution.

SECTION III. Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and all such other rights of the people, which rights are inalienable.

When Citizens United is thereby overruled, Clements proposes reforming the corporation as the next step. He suggests two guiding principles. First, incorporation is a privilege, not a right. Second, incorporation is a national or international matter; no individual state like Delaware should make the rules for multinational corporations.

Finally, as a third step, he calls for reforming the electoral process to limit and control the role of money. That is, we would finally be able to undo the damage the Court caused in Citizens United. 

As a legal strategist, Clements makes good sense: if we are to save our democracy from becoming a plutocracy, we need to do this. But the very power of the corporations and their allies in Congress, the Courts, and the Presidency means that the deck is stacked against us.  Only a massive and durable popular movement —Occupy Wall Street on steroids—will have the clout to force these changes.

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