DAY 2 of CU
Recap of Citizens United
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Narrower scale: BCRA limitations on
corporate expenditures couldn't be enforced
upon CU
Overruled Austin's limitations on
corporations on a broader scale
Upheld only the disclosure and disclaimer
requirements
Professor Birdthistle
Theories of Corporations in Citizens United
Prof. Stanton
Public Law vs. Private Law
Corporations, what we've traditionally
thought of within the realm of private
law, overtime, have 'breached' into the
realm of public law
They're now able to donate without
reporting (SuperPACs) and blur the
lines between private law activities and
public law (engaging in public
discourse).
Corporations through contacting parties
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The "Big Picture"
Corporate Personhood
Corporate Personhood
The concept that corporations have the same
rights as natural persons
Corporate Personhood
Where did it come
from?
Congress shall make no
law respecting an
establishment of
religion, or prohibiting
the free exercise
thereof; or abridging the
freedom of speech, or
of the press; or the right
of the people peaceably
to assemble, and to
petition the government
for a redress of
Corporate Personhood
Where did it get its
start?
Trustees of Dartmouth
College v.
Woodward, 17 U.S.
518 (1819): the
Supreme Court
recognizes that
corporations have
the same rights as
natural persons to
contract and to
enforce contracts.
Corporate Personhood
Santa Clara County v. Southern Pacific Railroad,
118 U.S. 394 (1886): before oral argument, Chief
Justice Waite said,
"The Court does not wish to hear argument on the
question whether the provision in the Fourteenth
Amendment to the Constitution which forbids a
state to deny to any person within its jurisdiction
the equal protection of the laws applies to these
corporations. We are all of opinion that it does. "
Corporate Personhood
Pembina Consolidated Silver Mining Co. v.
Pennsylvania, 125 U.S. 181 (1888): affirms the
doctrine of corporate personhood addressed by
Chief Justice Waite by holding,
"Under the designation of 'person' there is no doubt
that a private corporation is included [in the
Fourteenth Amendment]."
Corporate Personhood
Limits to corporate personhood:
Hugo Black, dissenting in Connecticut General Life
Insurance Company v. Johnson, 303 U.S. 77
(1938) wrote,
"If the people of this nation wish to deprive the states of their sovereign rights to
determine what is a fair and just tax upon corporations doing a purely local business
within their own state boundaries, there is a way provided by the Constitution to
accomplish this purpose. That way does not lie along the course of judicial
amendment to that fundamental charter. An amendment having that purpose could
be submitted by Congress as provided by the Constitution. I do not believe that the
Fourteenth Amendment had that purpose, nor that the people believed it had that
purpose, nor that it should be construed as having that purpose."
Corporate Personhood
Justice William Douglas, with whom Black
concurred, dissenting in Wheeling Steel
Corp. v. Glander, 337 U.S. (1949), wrote
see next slide; it's a lot of writing
Both Mr. Justice Woods in Insurance Co. v. New Orleans, supra, Fed.Cas.No. 7,052, 1 Woods page 88,
and Mr. Justice Black in his dissent in Connecticut General Co. v. Johnson, supra, 303 U.S. at pages 8889, 58 S.Ct. at pages 441-442, 82 L.Ed. 673, have shown how strained a construction it is of the
Fourteenth Amendment so to hold. Section 1 of the Amendment provides:
‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.’ (Italics added.)
‘Persons' in the first sentence plainly include only human beings, for corporations are not ‘born or
naturalized.’
Corporations are not ‘citizens' within the meaning of the first clause of the second sentence. Western Turf
Ass'n v. Greenberg, 204 U.S. 359, 363, 27 S.Ct. 384, 385, 51 L.Ed. 520; Selover, Bates & Co. v.
Walsh, 226 U.S. 112, 126, 33 S.Ct. 69, 72, 57 L.Ed. 146.2
It has never been held that they are persons whom a State may not deprive of ‘life’ within the meaning of
the second clause of the second sentence.
‘Liberty’ in that clause is ‘the liberty of natural, not artificial, persons.’ Western Turf Ass'n v. Greenberg,
supra, 204 U.S. at page 363, 27 S.Ct. at page 385, 386, 51 L.Ed. 520.
But ‘property’ as used in that clause has been held to include that of a corporation since 1889 when
Minneapolis R. Co. v. Beckwith, 129 U.S. 26, 9 S.Ct. 207, 32 L.Ed. 585, was decided.
It requires distortion to read ‘person’ as meaning one thing, then another within the same clause and from
clause to clause. It means, in my opinion, a substantial revision of the Fourteenth Amendment. As to the
matter of construction, the sense seems to me to be with Mr. Justice Woods in Insurance Co. v. New
Orleans, supra, Fed.Cas.No. 7,052, 1 Woods at page 88, where he said, ‘The plain and evident meaning of
the section is, that the persons to whom the equal protection of the law is secured are persons born or
naturalized or endowed with life and liberty, and consequently natural and not artificial persons.’
Corporate Personhood
Chief Justice Rehnquist, dissenting in Bellotti
(1978), criticized the Court's invention of
corporate constitutional "rights."
However, even he eventually voted to overturn
Austin in his dissent in McConnell v. FEC.
CLASS DISCUSSION
Have corporations gained more power than their
charters originally assigned?
Should corporations have all of the same rights as
natural persons?
Should they be limited? How far should corporate
personhood extend?
Contract and similar suits?
Is there a logical end point?
Corporate Personhood or
Corruption?
"Institutional corruption does not refer to the
knowing violation of any law or ethical
rule....It instead describes an influence,
financial or otherwise, within an economy of
influence, that weakens the effectiveness of
an institution, especially by weakening public
trust in that institution...Congress is a
paradigm case."
- Larry Lessig, in a September 2010 Boston Review article
Corporate Personhood or
Corruption?
Professor Stanton
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Takes the benefits of private, but affects the public
through lobbying and "purchase of political office" moves its agenda onto the public.
Through charters that pretty much let the business do
whatever it wants; the business judgment rule isn't
enough of a check on the corporation.
What's next? Corporations having the right vote and
hold public office? Is there an end point?
Limits on Corporate Personhood or
Limits on Corruption?
Should corps be able to vote in elections?
The court says that giving money is no different than political
speech. Is voting political speech? If so, should corps be
allowed to vote?
Do they need to reach 18 years of age to vote?
What if I incorporate 1,000 corporations in Florida, a highly
contested state in Presidential elections, and upon each of them
turning 18, use my vote (as the only shareholder and sole
board member) of the corps to vote how I want? I now have
1,001 votes toward the candidate of my choice. Should this be
Larry Lessig vs. Citizens United
Larry Lessig
Counsel for Citizens United:
"Before this decision, it was difficult for
individuals to get their voices heard. Now,
individuals can pool their money and speak
through a corporation or nonprofit and have a
greater political voice." - Amir Tayrani
Debate: Whose perspective is correct?
Corruption at multiple levels
Lessig spoke of corruption within Congress
itself, but this isn't too surprising.
What should the public be more concerned
with: money being spent to sway voters or
corrupt politicians?
Are they intertwined?
Is the democratic process a dream
of the past?
If one corporation, who cannot actually vote in
an election, spends an exorbitant amount of
money to sway voters, is democracy losing
anything?
Does the 'marketplace of ideas' truly allow all
speech to be heard when one voice spends
more money to be heard than other voices?
Polikoff and CU
Polikoff heavily wrote about the decision as a
disaster. He asks,
"Since all the 'Citizens United money' poured
into the 2012 campaign failed to elect
Romney, does that undercut the argument of
those (including me) who think the decision is
a disaster for democracy?"
Stanton's thoughts
-We need regulations to keep the marketplace as
open as possible.
-What regulations do we need?
-If we believe that money is speech, and you can
speak as much as you want, then we're in a game
where it's just the giants that have the megaphone
and they're going to shut everyone else out.
-Possible solution: shortening the campaign
season?
-Does this get in our way to talk about political
issues?
Corporations, corruption, and
public policy
Throughout the semester, we've noticed
attorneys arguing that they're doing public
policy work in areas that are not traditionally
"public policy" fields.
Are the attorneys who represented CU
engaging in public policy work?
How are they different that the attorneys for
Hobby Lobby?
For-profit vs. non-profit?
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Corporations, corruption, and
public policy
Are organizations that work to reform political
and campaign spending engaged in the
public policy arena?
Does this blur the line between what is and isn't
public policy work?