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'The intent of these laws is therefore the opposite of what the Court asserted.'

In an interview with Justin Fox, historian Brian Murphy says that the views the founding fathers held towards corporations and corporate personhood were "the opposite" of what the Supreme Court said in Citizens United. An excerpt:

Q: The corporations of the early days of the republic were very different beasts than those of today. They seem to have been creatures of government — or at least of politicians — right?

A: That's right. Americans inherited the legal form of the corporation from Britain, where it was bestowed as a royal privilege on certain institutions or, more often, used to organize municipal governments. Just after the Revolution, new state legislators had to decide what to do about these charters. They could abolish them entirely, or find a way to democratize them and make them compatible with the spirit of independence and the structure of the federal republic. They chose the latter. So the first American corporations end up being cities and schools, along with some charitable organizations.

We don't really begin to see economic enterprises chartered as corporations until the 1790s. Some are banks, others are companies that were going to build canals, turnpikes and bridges — infrastructure projects that states did not have the money to build themselves. Citizens petitioned legislators for a corporate charter, and if a critical mass of political pressure could build in a capital, they got an act of incorporation. It specified their capitalization limitations, limited their lifespan and dictated the boundaries of their operations and functions.

I should add, too, that as part of this effort to democratize corporations, state charters specifically spelled out how shareholder elections were to be conducted to choose directors. Corporations were supposed to resemble small republics, with directors balancing interests among shareholders. When they printed material or conducted correspondence, it was usually in the name of the "President, Directors, and Shareholders of the X Company."

A couple months ago, the Supreme Court ruled that restricting corporate political spending amounted to restricting free speech. In this view, corporations are pretty much equivalent to people. Would that have seemed reasonable to the Founding Fathers?

In a word, no.

More here.

By Ezra Klein  |  April 7, 2010; 8:06 AM ET
Categories:  Economic Policy , Legal  
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Comments

We should impeach Roberts for his vote on this matter. His vote proves he is either incompetent to understand the constitution or is ideologically motivated. Either way, he has done grave damage to our Democracy.

I am predicting as a result of this ruling, and as a result of the impending GOP takeover this year of Congress (a GOP that will re-commence gerrymandering, vote fraud, etc), that Democrats will see a multi-decade slide starting this year in their ability to win elections. The next 20 years are going to be some of our worst (if you are a progressive).

Posted by: Lomillialor | April 7, 2010 8:16 AM | Report abuse

"Would that have seemed reasonable to the Founding Fathers?"

I thought the constitution was a living, breathing document. I'm not sure Roe V. Wade would seam reasonable to the Founding Fathers either, necessarily, but there it is.

That being said, I find it interesting that many political folks (lobbyists, consultants, pollsters) don't like the idea of unlimited political money because it might favor opponents, but also because they can't control the spending of folks who are ostensibly "on their side", but may make for some very embarrassing campaigning. Or unwanted associations. Like a distributor of adult videos spending money campaigning for a Family Values candidate.

Also, Republicans and conservatives should generally tread lightly. Lots of huge corporations with giant coffers either (a) spend fairly evenly among Democrats and Republicans, and perhaps only target issues that bear directly on their industry (which can be Republican or Democratic, depending) or are run by liberals who are going to spend lavishly on liberal candidates and issues.

Money may not equal speech (or it may), and corporations may be persons, or they might not be. But while the spending on certain issues might seem to favor conservatives, overall spending may end up favoring liberals, should the law remain.

As a strictly political point, Republicans might be better off in a world without unlimited corporate political spending.

As to the issue itself, irrespective of originalist intent, one could argue that corporations, who are taxed and regulated by the government, have a vested interest in the political process, and should be able to have their say in the political process. That does not seem like an outrageous claim to me.

Posted by: Kevin_Willis | April 7, 2010 8:27 AM | Report abuse

"We should impeach Roberts for his vote on this matter"

Roberts ruled in good faith with a credible interpretation. The fact that you don't like it does not make it an impeachable offense.

After a year or two of corporations funding anti-Republican political advertising (and there will be plenty), Republicans might want to impeach Roberts. Even then, should that happen, impeachment is not appropriate.

Posted by: Kevin_Willis | April 7, 2010 8:30 AM | Report abuse

ugh, the main thrust of the decision was NOT about corporate personhood. It was about the First Amendment applying generally-not being restricted only to persons. Even if everything you said about corporations not being considered persons was right, the 1st amendment only says that Congress cannot restrict speech, not that persons have a right to speech. I feel like you are doing a disservice to your readers by continuing to imply this, and I am surprised because usually you are quite good on the details of policy debates, even on presenting the views of others, like Paul Ryan, that you disagree with.

Posted by: jfcarro | April 7, 2010 9:10 AM | Report abuse

I'm with Kevin in that I don't think paeans to the Founding Fathers are terribly persuasive arguments. We don't have any idea what they'd think of many modern problems, so people are just drafting them into their cause with a guess.

Also, Kevin seems to have a very skeptical view of the use of impeachment, which I think is a very healthy view to have.

I don't, however, agree with Kevin insofar as it's reasonable for corporations to have a say in the political process. Corporations are made of up to tens of thousands of people. Those people gain money and employment through their jobs. If they want their relationship to their corporation, and their corporation's interests, to influence their vote; so be it. The doesn't mean the corporation should have its own vote on top of the votes of its constituent members.

Even if we grant that a corporation is a separate person-like entity with a need to support its interests in the body-politic, there's no reason to allow that entity, or any singularly rich person, to have an outsized influence on policy. It's not really a question of whether money is speach, but whether unlimited money is required by free speech. In this world where making your position known is ridiculously easy, I don't think unlimited spending is necessary to protect the right of persons (and corporations, if we choose to include them) to speak their mind.

Even if we decide that unlimited spending is part of free speech, rights such as those can be overridden by a necessary government action narrowly tailored. The negative influence that unlimited spending on elections has caused to our country and society more than justifies a reasonable cap on spending in elections and lobbying.

Posted by: MosBen | April 7, 2010 9:50 AM | Report abuse

Impeachment was put there for a reason.

If it's OK to impeach Clinton for sex lies, it is OK to impeach The Chief Justice for a perverted and ideological interpretation of the Constitution.

I know it won't happen.

But in my view, the fact that we don't hold white collar criminals and corrupt (and or extremist) politicians accountable for their actions (whether it be through the courts or through the constitutional mechanism of impeachment) is one of the reasons greed and ideology is rampant in our society. There are no penalties to white collar crime or radical political actions/decisions. Only rewards.

Posted by: Lomillialor | April 7, 2010 9:56 AM | Report abuse

But that's the thing, Lomillialor, it *wasn't* ok to impeach Clinton. It was a baldly political move to attempt to discredit a President that the Republicans didn't like. They thought it would be electorally beneficial, plus they just hated him.

Impeachment is a very serious act and shoult be used only in extreme circumstances. Republicans were wrong to use it against a President they just didn't like and it'd be inappropriate to use it against Roberts, even if I *hate* the decisions he's making on the bench.

Posted by: MosBen | April 7, 2010 10:19 AM | Report abuse

MosBen

The clinton impeachment was unwarranted. I am glad you agree.

That does not mean it is uncalled for in other circumstances.

Bush should have been impeached for lying us into Iraq.

Reagan and/or BushSr should have been impeached for illegal arms deals with Iranian terrorists. The Special Prosecutor said publicly he found impeachable offenses but declined to report them to Congress for the good of the country (it wasn't his job to make that decision BTW).

And Roberts should be impeached for what is obviously a partisan attack on the Constitution which will have very serious consequences to our electoral system.

You are free to disagree. However, in the next few decades when Democrats are trying to figure out why they can't win elections anymore and why the GOP holds supermajorities in both houses as well as holds the White House, no one will remember that it all started with this activist supreme court.

Posted by: Lomillialor | April 7, 2010 10:29 AM | Report abuse

@MosBen: "I don't, however, agree with Kevin insofar as it's reasonable for corporations to have a say in the political process."

I didn't say it's inherently, self-evidently the way it ought to be, only that it is a reasonable argument. It may be, in fact, a bad idea, but the argument is not irrational or insubstantial. Corporations are regulated and taxed as corporations, they are subject to corporate law which is controlled by the government, they clearly have a vested interest in the political process, so it's not unreasonable to argue that corporate entities should be able to have their interests represented. Maybe it's not a good idea when the rubber hits the road, but it's a reasonable argument to make.

@Lom: "If it's OK to impeach Clinton for sex lies, it is OK to impeach The Chief Justice for a perverted and ideological interpretation of the Constitution."

It was not OK to impeach Clinton. I agree with MosBen. The impeachment of Clinton was appalling. On so many levels. Not the least of which was the fact there was a special prosecutor empaneled to investigate Whitewater at all. I don't know about you, but I think it should be impossible to investigate a sitting president for a questionable 20 year old land deal.

That being said, I think there would be disagreement as to whether or not Roberts vote was "perverted" (perverted? really?). And if ideology was a basis for impeachment, almost every sitting justice would have a decision or a vote they could be impeached for. Impeachment is not only not the answer, it would be politically awesome for Republicans and conservatives and the conservative movement if there was a serious effort to impeach Roberts over this.

Alas, I'm afraid the Democrats aren't going to take your advice and run with it, Lom.

Rarely is there a great argument for impeachment. The Bush and Reagan arguments are extremely weak. As is the Roberts argument. And, frankly, impeachment is like 120 year old, heavily-sweating dynamite. Just as likely to blow up in your face as blow up what you want it to blow up. The Clinton impeachment damaged the Republicans, and I'm surprised it didn't do more damage than it did. It was, when it comes down to it, really a mess.

Posted by: Kevin_Willis | April 7, 2010 10:42 AM | Report abuse

Kevin asks: Perverted?

Yes, indeed. Robert's vote was perverted.

http://dictionary.reference.com/browse/perverted

1.
Pathology. changed to or being of an unnatural or abnormal kind: a perverted interest in death.
2.
turned from what is right; wicked; misguided; distorted.
3.
affected with or caused by perversion.

Posted by: Lomillialor | April 7, 2010 11:16 AM | Report abuse

Media corporations have rights to freedom of speech, hence opinion editorials. Are you telling me the founding fathers did not anticipate those corporate rights?

How about the corporate rights of political parties to free speech?

Your interpretation is just simply wrong. Individuals associate and can therefore speak through their associations. Freedom of Speech should be protected for all Americans.

Posted by: lancediverson | April 7, 2010 11:23 AM | Report abuse

Lance : "Freedom of Speech should be protected for all Americans."

I agree. That's why the idea that corporations are people is crazy. Our voices are not being heard and heeded because of the undue influence that big business has on the workings of government.

Posted by: Lomillialor | April 7, 2010 11:28 AM | Report abuse

Kevin : "The Bush and Reagan arguments are extremely weak."

I'll forego Reagan issues for now (though any google effort can reveal that Walsh has stated publicly he found impeachable offenses that he did not forward due to the good of the country).

Anyway, regarding Bush, we have invaded countries because they have started unjust wars. We have executed foreign political and military leaders for their part in starting unjust wars.

Now you say that the case for impeaching a President for lying to the country and Congress about the merits for a war that has done nothing but kill 10,000s of innocents, kill thousands of US troops, cost us trillions, weaken our military to the point of breaking and helped create this great recession is not a strong case?

The lies are documented. The damage is documented. Doesn't that provide a strong case?

A so-called PROFESSIONAL special prosecutor (Starr) thought he had a strong case for impeachment) for perjury to a lower court. Yet you think it is OK for a President to lie to Congress and the country and then start a war based on those lies?

From: http://en.wikipedia.org/wiki/Impeachment_of_Bill_Clinton

"Upon the passage of H. Res. 611, Clinton was impeached on December 19, 1998, by the House of Representatives on grounds of perjury to a grand jury (by a 228-206 vote) and obstruction of justice (by a 221-212 vote). "

Do you see how many elected GOP politicians voted FOR IMPEACHMENT? That means they too think it is a strong case to impeach for lying in substantive ways, and surely there is no more an important issue to lie about than about war.

The fact you vote for these APPALLING politicians is inexplicable to people like me. The impeachment of Clinton was one reason I am no longer a Republican. We need to hold these extremists accountable, and impeachment is the only way to deal with a newly appointed ideologically-activist Chief Justice.

Posted by: Lomillialor | April 7, 2010 11:52 AM | Report abuse

lance : "Media corporations have rights to freedom of speech, hence opinion editorials."

No.

Writers have freedom of speech.

Yes.

Editors and media companies have certain rights in the way they protect the writers and their sources.

Writers have gone to jail for not revealing their sources in court. To my knowledge, corporations haven't ever been to jail and the Constitution makes no mention of corporations having the bill of rights.

Corporations ought not have the right to spend millions to drown out all other voices. How many people do you know who can place an ad on major media? None.

Posted by: Lomillialor | April 7, 2010 11:56 AM | Report abuse

Lomillialor,

You clearly are criticizing the Supreme Court's outcome as opposed to the law that they are bound to.

Please Re-read the firts amendment. This amendment on its face presumes openness in political speech. If you don't like the openness of political speech argument, then you need to politic to change the constitution.

Justices are bound by law. Their policy preferences don't matter. Policy preferences are for the political branches of government.

Just because you don't like the outcomes doesn't mean that the interpretation was wrong.

Posted by: lancediverson | April 7, 2010 1:51 PM | Report abuse

lance,

show me in the constitution where it says the bill of rights apply to corporations. It doesn't.

People are free to speak as they desire.

Allowing corps to spend whatever sums of money they want on political ads is not free speech. Now, if I as a person were allowed equal access to the media, I might stop worrying about this issue. But I don't have equal access, and my voice is drown out by big business, and that aint free speech.

Posted by: Lomillialor | April 7, 2010 2:09 PM | Report abuse

"Congress shall make no law... adbridging the freedom of speech, or of the press, or the right of the people peacably to assemble,..."

It seem clear that the founders consider protected rights to apply both to people individually and in the aggregate. Corporations are aggregations of people and it appears to me that there is a good legal argument to make that they fall under the "Congres shall make no law" protections.

Posted by: lancediverson | April 7, 2010 2:50 PM | Report abuse

lance

I don't see the word "corporation" or "business" in there.

Allowing Exxon to spend millions in ads is not "the press" nor is it free speech.

Posted by: Lomillialor | April 7, 2010 3:08 PM | Report abuse

In the interview, Prof. Murphy states "I read this opinion carefully — I'm trained as a historian, not a lawyer. Chief Justice Roberts lays out an ideologically pure view of corporations as associations of citizens — leveling differences between companies, schools and other groups. So in his view Boeing is no different from Harvard, which is no different from the NAACP, or Citizens United, or my local neighborhood civic association. It's lovely prose, but as a matter of history the majority is simply wrong"


Chief Justice Roberts did not write the majority opinion in Citizens United - - Justice Kennedy did. CJ Roberts wrote a concurrence dealing with stare decisis issues in the case.

Setting aside this basic error made by Prof. Murphy, his point regarding the founder's views of corporations is addressed in Justice Scalia's concurrence, which he makes no reference to.

Pretty thin gruel--

Posted by: cdosquared5 | April 7, 2010 3:39 PM | Report abuse

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