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The corporate 'I'

Justin Fox -- writing from his new perch as editor of the Harvard Business Review -- thinks that the Supreme Court's vision of the corporation would make Milton Friedman blush:

The Supreme Court was dealing with three different and conflicting strands of law and precedent: (1) the many laws and past court rulings restricting corporate political involvement, (2) the precedent that political spending is equivalent to First-Amendment-protected speech, (3) laws and precedent that establish corporations as persons.

The court majority chose to jettison (1) and stick with (2) and (3). I'm in no position to say the justices were wrong as matter of law. But as a matter of policy and common sense, it's clearly (3) that's most problematic. If corporations are persons, they are — if they behave as Milton Friedman wanted them to — persons with mental and emotional impairments so severe that any decent judge would feel entirely justified in declaring them incompetent.

By Ezra Klein  |  January 25, 2010; 3:41 PM ET
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Somewhat ironic that a corporation like Harvard Business Publishing, Inc. advocates curtailing speech during an election blackout window: this is the opposite of the position taken by its parent corporation in a previous case before the Supreme Court.

Posted by: rmgregory | January 25, 2010 4:16 PM | Report abuse

If corporations are people, could we please make them pay taxes like the rest of us? I'm sure the Chamber of Commerce folks would freak out about my asking that question, but in Nebraska, as in many states, the legislature has created so many job creation tax credits and customized job training programs and other subsidies that many of our largest employers probably don't pay state taxes at all. And even if they're not subsidized -- and these "incentives" are subsidies -- then they're paying a much lower marginal rate than those of us who are real people. We pay taxes to fund the government, corporations pay contributions -- or threaten to pay contributions -- to politicians who make the laws. What a country. -Shane, Omaha

Posted by: spekny | January 25, 2010 4:20 PM | Report abuse

I don't understand how the United States government can censor the speech of people who have grouped together in some type of association or "corporation."

The United States does allow groups to have the freedom of political speech. The best examples are political parties. Should the government be able to censor the speech of political parties; which are, like corporations and unions; individuals who have grouped together to increase their strength.

Posted by: lancediverson | January 25, 2010 4:30 PM | Report abuse

The ability to treat corporations as persons in transactional behavior (property, contracts, etc.) is a significant help in drafting and implementing the law, and defined at the beginning of the U.S. Code. The problem is with attempts to extend what are usually called "human rights" to corporations. But what is the original motive and purpose of establishing human rights?

We guarantee these rights because people have frailties and need protection in order to participate fairly in society. We guarantee freedom of speech because we know that fear of injury, death or loss of property can all be used to stifle dissent. Corporations don't have these human frailties, so they don't need the corresponding protections. Something that doesn't fear death, harm, injury or destitution has no need for human rights.

We can find a way to fairly regulate corporate speech, mindful that the corporation represents stakeholders with First Amendment rights, but without granting a human right to a non-human legal person. We can certainly do it without laying more groundwork for a broader grant of human rights to corporations.

Posted by: extensive_vamping | January 25, 2010 4:37 PM | Report abuse

Given that a corporation exists only as a legally-defined entity in the first place, wouldn't it be possible to change the legal definition? Assuming, of course, you could round up at least 60 senators who weren't just interested in defending corporate interests?

Posted by: tl_houston | January 25, 2010 4:59 PM | Report abuse

With this ruling in place, it's not clear how Congress can pass effective restrictions on foreign contributions to U.S. political campaigns. If a 0.01% stake of Aramco (Saudi oil company) is held by one American shareholder, do we allow them to contribute so as not to infringe on the rights of that one U.S. citizen? If the law requires a domestic corporation, then Aramco will be happy to set up a conforming paper entity. Corporate ownership requirements would also do very little, since lobbyists are already experts at peddling influence on behalf of foreign clients. Putting a relatively complex and expensive hurdle in the way just makes their minimum retainer that much larger.
The decision makes it easier to channel money into campaigns from foreign sources, and in a way that could be much more difficult to detect.

Posted by: extensive_vamping | January 25, 2010 5:05 PM | Report abuse

we have to remember that the original villain in all this law thing was the government. The first ten Amendments especially exist to protect individuals from government bullying.

The fact that some of our corporations have created pretty nightmarish cultures themselves doesn't alter the fact that government if not checked holds life and death power over everyone. Corporations have been extended some of the protections accorded to us individuals, is all this "corporate person" thing is about.

And for good or ill, SCOTUS is currently calling money speech, but the answer is not to limit speech. The answer is explicitly to limit money, and call it money. And define "influence" while we're at it.

Posted by: rosshunter | January 25, 2010 5:12 PM | Report abuse

tl_houston: Changing the definition of the corporation, even if done carefully and well, would be an earthquake underneath the economy and legal system. For the legal profession and the interaction of law and society, it would be roughly equivalent to Y2K in computing. There would be years of review and adjustment of existing laws and contracts both before and after the change went into effect.

Also note that most federal legislation has been written assuming that the first page of the U.S. Code contains this:

"the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;"


It seems like attempts to drastically change the underlying terminology could generate a fair bit of paperwork.

Posted by: extensive_vamping | January 25, 2010 5:18 PM | Report abuse

I'm with Glenn Greenwald on this one. The Constitution doesn't protect speech of "persons". It simply says that Congress may make no law restricting free speech.

Posted by: MikeR4 | January 25, 2010 5:21 PM | Report abuse

But the Constitution is specifically for and by We the people of the United States and describes the relationship between the government and the people. The corporation, as conceived in modern times, is in no way shape or form a person under the usage in the Constitution

Posted by: williamcross1 | January 25, 2010 8:10 PM | Report abuse


The corporation, or any aggragation of people, is the vehicle through which Americans can enhance their individual political speech.

Allowing corporations and unions to get out their political message is no different than allowing political parties to get out their political message. They are both speaking political messages and they are both aggragations of individual people with a constitutional right to protected political speech.

Posted by: lancediverson | January 25, 2010 9:10 PM | Report abuse

It is a scandal that corporation can be owned by other persons.

(Hmm. Protection against self-incrimination, etc?)

Seriously, a corporation is an organization to which you temporarily give over your right to dispose of some of your money. You do not subscribe to it's views; you don't donate to it, you just invest in it. You do not give it the right to speak for you on any and all subjects (politics, religion, basketball!), nor to cast your vote in elections.

A political party has the right to run candidates for public office. Should, say, Westinghouse have that right?

Posted by: DavidKolodney | January 26, 2010 3:40 AM | Report abuse

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