Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It (27 page)

The specific approach for enforcement of corporate property rights would depend on the circumstances and on the jurisprudence developed by the Court after the ratification of the People’s Rights Amendment. On top of all of this, people, businesses, and legislators are extremely unlikely to sit idly by while government seizes property. It is not the unconstitutional concept of corporate rights that blocks such government overreaching but rather a healthy Constitution of checks and balances, liberties of the people, and an active, engaged citizenry. The People’s Rights Amendment promotes all of this.

What will be the impact of the amendment on company political action committees (PACs) and employee contributions?

The People’s Rights Amendment will have no impact on laws that apply to PAC contributions and individual contributions made by company employees or others. Instead, the People’s Rights Amendment overturns
Citizens United
and restores to the people and our elected representatives the power and the duty to enact laws and regulations that ensure that elections are free and fair and serve our democracy.

The People’s Rights Amendment does not say what those rules should be. Rather, it says that we, the people, and our representatives should make those rules.

Congress and the states will be free to decide on the rules for PACs, employee contributions, or even corporate spending in elections. The People’s Rights Amendment clarifies that corporations don’t have constitutional “rights” to trump those rules and strike down the election laws that Congress and the states enact.

Will the amendment affect my ability as a business leader to lobby on behalf of my company or with a trade group?

No. The People’s Rights Amendment protects all the rights of people to associate and petition government, to speak, and to lobby.

The People’s Rights Amendment does not make or change any lobbying rules. It may allow Congress or the states to make such rules, and we believe that reform of our lobbying laws is overdue.

Between 1998 and 2010, the U.S. Chamber of Commerce spent $739 million on lobbying. Pharmaceutical and health care corporations spent more than $2 billion on lobbying in the past twelve years. Three corporations seeking military contracts, Northrop Grumman, Lockheed, and Boeing, spent more than $400 million on lobbying. The list goes on.

The People’s Rights Amendment will allow (but not require) Congress and the states to regulate corporate lobbying in an evenhanded way. Corporations will not have a “right” to “speak” through election cash from the corporate treasury—which is often hard to differentiate from the outright bribing of elected officials—or to corrupt our lawmaking. At the same time, the People’s Rights Amendment protects the rights of human beings to say anything they want and to argue, inform, and appeal to and petition our representatives for anything at all, including laws that affect our own businesses or the industries in which we work.

The People’s Rights Amendment merely distinguishes between people and corporations so that our government remains a government of, for, and by the people.

Are there aspects of the corporate rights doctrine not related to campaign finance that will be addressed by the amendment?

Yes. The recent fabrication of “corporate rights” under the Constitution goes beyond elections and money in politics.
Citizens United
is the extreme extension of a corporate rights doctrine that courts have used with increasing aggression and hostility to the judgment of people and our elected representatives since 1980.

The courts have used the fabrication of corporate rights, particularly corporate “speech,” to strike down a wide range of commonsense laws in recent years, from those concerning clean and fair elections to environmental protection and energy to tobacco, alcohol, pharmaceuticals, and health care to consumer protection, lotteries, and gambling to race relations and much more.

Examples include laws to ensure an even playing field between local, regional, or national businesses that compete with global corporations, such as laws to protect consumer choice by requiring disclosure about food products derived from genetically modified drug treatments for animals or laws to protect the public interest, such as limitations on cigarette advertisements near schools or energy conservation requirements for utility corporations.

A new corporate “due process” theory has turned federal judges into overseers of state juries and courts, so that jury awards may be overturned if federal judges decide they are “too high.” These “rights” have been used almost exclusively by transnational corporations to evade accountability for harmful products or actions.

Even if we think punitive damages need oversight and reform, most businesspeople do not want to twist our Constitution to prevent our government of the people from deciding on the best course. Even as shareholders, we do not need a corporate constitutional “right” to strike down decisions of
a state jury because a federal judge might have reached a different conclusion. In a case where a punitive damages judgment is a real constitutional issue, it would be because of the danger that such a judgment might, in essence, confiscate shareholders’ property. If it ever came to that (it never has), the human beings who are shareholders have due process rights to make any valid constitutional argument about that confiscation without the need to fabricate improper corporate constitutional rights.

In a few other instances, courts have treated corporations as people with constitutional rights, such as under the Fourth Amendment protections against unreasonable search and seizure. The People’s Rights Amendment changes nothing about the rights of human beings, including the rights of employees, executives, and others against search and seizure. There is no such thing as a corporate constitutional right, but that does not relieve the courts from ensuring that government does not violate the rights of people who work in or who own corporations or anyone else.

What about freedom of the press and media—aren’t they all corporations?

The People’s Rights Amendment will not limit freedom of the press in any way. The First Amendment protects freedom of speech and freedom of the press, as well as freedom of religion, assembly, and petition. All of these are rights of the people. In addition, the People’s Rights Amendment explicitly reaffirms these freedoms.

A ban on corporate general treasury money to run political advertisements is not the same as a ban on editorials or commentary by the press. A free press is critical to freedom and democracy. No speech, press, or other rights of the people are affected by the People’s Rights Amendment.

Will an amendment affect the ability of nonprofit associations and unions to give in elections as well? Will it affect my religious institution’s status as a corporation? What about nonprofit corporations? Will this silence them?

The People’s Rights Amendment will have no impact on people’s rights to associate freely or worship as they wish. Freedoms such as religion, speech, and assembly are not predicated on the creation by the state of corporate entities that are granted tax deductions and other state-based advantages.

The federal law (the Bipartisan Campaign Reform Act of 2002) struck down by
Citizens United
equally applied to unions, nonprofits, and for-profit corporations.

If union activity, charitable activity, or advocacy activity is done by a corporate entity, the corporation is expected to comply with laws applicable to corporations.

Whatever corporate form and rules government comes up with must be evenhanded and apply equally to all religions and all points of view. Government cannot say Protestants but not Unitarians can organize their church as a nonprofit corporation. Government cannot say that a synagogue but not a church can give tax-deductible contributions to its nonprofit corporate entity. Government cannot do that because the rights of people would be violated. That has nothing to do with whether those people use a corporation to organize the institution.

There’s no reason to be afraid of a fair rule for all that says anyone who wants to organize a church using a corporate form can do so, but it must comply with corporate (and other) laws. It has always worked that way, and the People’s Rights Amendment doesn’t change that.

What about freedom to associate? Aren’t corporations just like any other association?

A corporation is not just like any other association of people. A corporation is a specific creation of state or federal statute that may only be used for purposes defined by the statute that permitted its creation. “Those who feel that the essence of the corporation rests in the contract among its members rather than in the government decree … fail to distinguish, as [those in] the eighteenth century did, between the corporation and the voluntary association.”
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That distinction has always been true and is true now. A corporation is a government-created structure for doing business and is available only by statute.

We, as people, have the right to associate. We have a choice to incorporate, if we like the balance of benefits and burdens of incorporating.

Could there be unintended consequences for our economy? Corporations seem essential now. Could this amendment upend the complex workings of corporations in our economy?

The People’s Rights Amendment does nothing to change the role of corporations in our economy. The responsibility for defining the economic role of corporations would remain where it had always been before the Court fabricated corporate rights: with the people and our elected representatives. The corporate entity will continue to be a very useful economic tool. Ending “corporate person” rights in the Constitution has nothing to do with federal and state laws that make corporations like “persons” who may enter into contracts, sue and be sued, and so on.

In fact, the People’s Rights Amendment, while not intended as an economic reform, will probably help the economy. Corporate “rights” (which are
really about global corporate power) are harming the American economy. The vast majority of businesspeople and corporations do not need or want “rights” to defy democratically enacted laws or to be pushed into buying more and more political ads. The People’s Rights Amendment would not upend anything about corporations in our economy except the abuse of the Bill of Rights by transnational corporations seeking to attack our laws.

Won’t this lead to big government? Government telling us how much we can spend and so on? I’m against regulation.

Then you should support the People’s Rights Amendment. This amendment is not regulation. It is about liberty for us as people to debate and decide for ourselves what size government should be or what regulations make sense.

If corporations aren’t “persons,” how will they be prosecuted in court? Will they have due process? Equal protection?

Under the People’s Rights Amendment, corporations will still be able to use the court system, of course, and they may even raise and argue constitutional claims; but they will do so as corporations, not as people. This is related to what lawyers and judges call “standing” to make arguments. Just as an environmental organization has standing to argue about a river because the organization has human beings in its membership who are personally affected by the pollution in the river, a corporation will sometimes have standing to argue the claims of its employees or shareholders.

The People’s Rights Amendment will force courts to address the heart of the matter: What human rights are affected when a corporation challenges democratically enacted laws?

So when BMW claims, for example, that a $2 million punitive damage judgment violates its due process rights because the judgment is “excessive,” the Court will need to be clear that due process rights belong to the human shareholders who will be affected by the judgment or the CEO, who might get a lower bonus as a result of it. Whether that violates the due process rights of the people who lose money due to such a judgment can be determined by the Court without pretending that the corporation itself has constitutional rights.

Today, the playing field is not level; the largest global corporations have far more power in the legislatures and the courts than all other businesses. After the People’s Rights Amendment is added to the Constitution, all of our rights as people, as well as the checks and balances of our Constitution and our democratic process, will ensure a level playing field for all businesses.

Business and businesspeople will continue to have strong, influential weight in legislatures and agencies under the People’s Rights Amendment. There are many tools to address improper rules or regulations that do not require creating constitutional rights for corporate entities.

Why do we need a constitutional amendment? Can’t Congress fix this?

Congress could begin to address some of the problems of
Citizens United.
Congress could enact laws requiring disclosure of political spending by corporations, for example. It is telling, though, that even that limited measure failed to pass in a vote on the Senate floor after
Citizens United.

Short of disregarding the Supreme Court’s decision—which would undermine the Court’s legitimacy—Congress cannot overrule the Supreme Court’s interpretation of the Constitution without moving to amend the Constitution.

That is why constitutional amendments have always been necessary to correct egregiously wrong Supreme Court decisions, from the 1856 ruling that African Americans, “whether emancipated or not,” are not citizens and “had no rights which the white man is bound to respect”
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to the 1874 decision that even if women were citizens, they had no right to vote because the Constitution did not guarantee the right to vote as among the fundamental rights, privileges, or immunities of citizenship.
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