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ACLU is still asking the wrong questions about Citizens United

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With the influx of tens of millions of undisclosed dollars into this year's presidential race, the ACLU is publicly re-examining its support of the Citizens United Supreme Court case which removes all controls over corporate spending in politics.  The ACLU is questioning whether it underestimated the effect of these super-sized contributions in balancing the right of the highest form of free speech -- political speech.  The ACLU is asking the wrong question.  Corporations do not have political rights.  Only humans do.  And by allowing corporations to enter the political sphere, all human political rights are lessened.

I understand and accept that the ACLU must make difficult -- and sometimes very unpopular -- choices  in order to protect the civil rights of all humans.  The ACLU argues that in a strict constitutional sense corporations have political rights under the US Constitution. I could not disagree more.  The Constitution addresses the political rights of human only. Not orangutans, and not corporations.

After writing much of this essay, I went to Justice Stevens' dissenting opinion in Citizens United to see if he addressed this fallacy of corporate personhood.   I found that he had succinctly addressed my point of only humans having political rights. Justice Stevens points out that corporations are not members of society:  "They cannot vote or run for office." (Nor can an orangutan).  Unfortunately, Stevens did not expand on his point about corporate existence to puncture the fallacy of corporate personhood.

At best, the current concept of corporate political rights comes from what is one of the most monumental acts of negligence made by the Supreme Court  At worst, it was the most hideous case of economically-based political sabotage.  Newly minted Supreme Court Justice Sotomayor raised this this issue during the oral argument of her debut case, Citizens United.  And then never mentioned it again.   Wikipedia explains how the myth of corporate personhood originated:

"In Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886), the Supreme Court recognized corporations as persons for the purposes of the Fourteenth Amendment. In a headnote--not part of the opinion--the reporter noted that the Chief Justice began oral argument by stating, "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 the opinion that it does."[1]

For those who have dealt with them, "headnotes" are the legal world's equivalent of "Cliffnotes".  They are an outsiders attempt to explain what was written.  They are not law. Succeeding Supreme Courts have wrongfully taken this headnote, and quoted it as the law that corporations have all the rights of humans. What has been come to known as corporate personhood.   That decision was never made.  It is important to note that though Justice Sotomayor end up joining Stevens' dissent, the dissent does not mention Sotomayor's questioning of the fallacy of corporate personhood.

Putting this case in context of the all federal laws, it is commonly accepted that in exchange for being granted economic rights by the state that speech can be curtailed. Under the federal tax code, churches are denied political speech in exchange for tax exemption.  Under the Hatch Act, federal employees are denied political rights available to other citizens.  Federal employees are humans and they have their political speech curtailed. Corporations are not even human.  Citizens United would grant corporations more rights than humans.

Corporations are only a state-created fiction. In allowing individuals the right to economically benefit from that fiction, especially the limited liability it entails, the state has the right to set the terms of corporate existence. The legal purpose of the state-created fiction of a corporation is to benefit the public by engaging in economic activity. The state has the absolute right to determine the terms of how the public is to be benefited by that creation.  It makes complete sense that corporations have the same economic rights as humans, since the purpose of corporations is to engage in economic activity.  Political rights are another matter.  The state is not denying political rights to corporations.  Corporations are not human, they not endowed by our Creator with inalienable rights.  The state is a corporations creator. The only rights corporations have are those that the state legislates.  The state especially has the power to not grant political rights to an economic entity it created.

When a human engages in political activity, it is clear where the locus of responsibility lies.  With a corporation, there is not.  Take for instance the issue of citizenship.  There are legal and public sentiment restrictions against foreigners interfering in politics in the US.  When corporations make contributions, it becomes murky if those restrictions have been violated.  The two largest beer companies in the US, Anheuser-Busch and Miller, are both foreign owned. When such a foreign-owned US company donates to a political campaign it is not clear where its loyalty lies.

On a more molecular lever, who is to say that a substantial percentage of individual corporate shareholders in a particular large corporation are not citizens of another country.   There is no requirement of political loyalty to the US in a corporation, only economic loyalty to the corporate owners, wherever they call home.

Returning to Stevens dissent, he had already made the points about the state have the right to curtail political rights in exchange for economic rights, and about corporate ownership.  He also does a wonderful of bursting the majority's myth that the law does not restrict political speech based on identity.

As a third party activist, I feel the need to widen the discussion from my narrow thesis.  We should put the political speech controversy in contrast to the treatment of other human political rights.  I find it  disappointingly unsurprising that the Supreme Court majority in Citizens United expresses horror at distinguishing between political speech right based on identity when the plaintiff is an economic entity, but the Supreme Court has consistently reinforced an apartheid system based on political party registration..  The Supreme Court has regularly found that those not enrolled in Democratic or Republican parties have fewer political rights, especially in the area of ballot access.

I also feel compelled to offer a non-judicial/legislative solution. There was a lot of corporate money in politics before Citizens United.  The case did not open a flood gate, it only kicked it up a notch.  For instance, the Democratic and Republican presidential conventions and debates are completely corporately funded.  There are solutions you can adopt to this problem right now if you do not believe that money is political speech.  You can refuse to donate to or vote for candidates who accept corporate money.  No research or litmus test is necessary.  Green Party candidates have never taken corporate contributions.  Supporting them would send a clear signal that political rights belong to humans alone.

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Ian Wilder is co-blogger at onthewilderside. He is a peace and justice activist, and a former NY State Green Party Co-Chair.
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