Corporate Rights Are Our Rights

Educate yourself before throwing away your own rights.

Kudos to Milwaukee County Supervisor Chris Abele for vetoing the Milwaukee County Board's attempt to put a referendum on the ballot calling for an end to corporate personhood. 

The 14 members of the Board who voted for it* and the liberal groups supporting it** are either (a) completely ignorant of basic constitutional principles, or (b) perfectly aware of how incredibly dangerous such a change would be, yet willing to pander to how ignorant they perceive their constituents to be.

As reported in the County’s press release, the resolution would have asked “whether the U.S. Constitution should be amended to establish that only human beings, not corporations, are entitled to constitutional rights, and money is not speech, and therefore regulating political contributions and spending is not equivalent to limiting political speech.”

Let’s focus on the first part of that*** – stripping corporations of constitutional rights.  What effect would that have?

  1. Nearly all major news organizations are organized as corporations.  Having lost all their constitutional rights, they would now be subject to complete and utter government censorship and control.  Any government – federal, state, or local, could ban all publication of any newspaper, shut down any TV news broadcast, prohibit political endorsements, or even dictate exactly what they said.
  2. Most religious institutions are organized as corporations. The Constitution currently protects not only individuals’ freedom of religion, but religious institutions’ freedom of religion.  That would be thrown out the window if those corporate religious institutions had no rights.  Don’t like Mormonism?  Scientology?  Christianity?  Shut down their churches.  Politicians could regulate worship services anyway they liked.
  3. The Constitution gives people the right to be free from unreasonable searches and seizures.  Generally speaking, cops need a warrant in most circumstances to search your home – or your business (at least after hours or in places not open to the public).  But what if we take constitutional rights away from corporations?  The police could search any corporation’s property at any time, for any reason (or no reason at all) with impunity.
  4. The Constitution also says that government can only take our life, liberty, or property by using due process of law.  Except if a corporation has no constitutional rights, government can take corporate property at any time, with no due process, without compensation.  Government could also revoke corporate charters (the “life” of the corporation) at any time, for any reason, without due process.
  5. Nonprofit organizations are corporations.  Would you want the Sierra Club, the NRA, NARAL Pro-Choice America, Americans United for Life, and every other nonprofit advocacy group stripped of the right to speak on their issues of concern?  Subject to destruction by politicians who disagree?
  6. Unions (both public and private) are corporations.  They would be subject to all the same abuses listed above.
  7. PACs themselves – the basic political organizations “not affiliated with any candidate or candidate’s committee” and subject to the disclosure, registration, and fundraising limitations that “Super PACs” typically aren’t – are corporations as well.  This constitutional amendment would pare back the right to engage in any kind of political advocacy to individuals alone.  Rich individuals have a lot of clout under the current system, yes, but at least people of like minds can pool their resources together to combat the speech they don’t like with more speech.  That pooling would become a lot more difficult – if not completely impossible – should corporations be stripped of their right to speak on political matters.

Think I’m exaggerating?  Take a look at Move to Amend’s website, which explicitly lists the rights it doesn’t want corporations to have, including 1st amendment (free speech, free religion), 4th amendment (being free from unreasonable search and seizure) 5th amendment (due process, takings without compensation), 14th amendment (due process and equal protection), commerce clause, and contracts clause rights.

What’s really scary is any level of government would be able to exercise this tyranny over corporate entities.  Have you seen how petty, controlling, and vindictive the governing boards of some small towns (and even bigger villages and cities) can get?  Is that really the kind of power you want to put in the hands of government officials?  For people who fear what Republicans might do to unions, this should be particularly frightening.

This amendment isn’t about the rights of corporations per se.  It’s about the rights of individuals to join together in a corporate form without losing their constitutional rights.  People joining together as corporations are still people.  I would never willingly give up those rights, and I hope better education will help people understand that by supporting such a constitutional amendment they are stripping themselves of many, many rights.

People don’t like a lot of the political speech they see.  I completely agree – most political ads are awful – and the further an ad is removed from the candidate her- or himself, the more awful it tends to be.  But the solution to speech you don’t like isn’t to ban that speech – it’s to engage in more speech.  Whatever happened to “I disapprove of what you say, but I will defend to the death your right to say it”?

For more scholarly consideration of such “people’s rights” amendments, see here, here, here, and here.

*   Chair Marina Dimitijevic, Deanna Alexander, David Bowen, Gerry Broderick, David Cullen, Jason Haas, Nikiya Harris, Willie Johnson, Patricia Jursik, Michael Mayo Sr., Peggy Romo West, Joe Sanfelippo, Russell Stamper II, John Weishan, Jr.

**   For example, United Wisconsin, People for the American Way, Move to Amend

***   Giving government the power to ban people from spending money to spread their message brings its own set of problems.

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James R Hoffa September 11, 2012 at 08:51 PM
@Lyle - So, how would a candidate qualify for government campaign financing exactly?
Jim Crist September 11, 2012 at 08:52 PM
The word "corporate" is not in the first amendment. Why are you saying it is?? Here's the first amendment: "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 grievances."
Jim Crist September 11, 2012 at 09:02 PM
If we want our representatives to represent us, they need to get their campaign money from us, their constituents. Right now more than 50% of the Super Pac money has come from just 46 people. If we can wrest control of the government away from the corporations, I would definately trust my elected officials over a bunch of multi-national corporations.
FreeThought Troy September 11, 2012 at 09:03 PM
@Lyle- that is a thoroughly cogent response. Though I personally have gone off the rails once or twice in this string, by and large it has been really good and positive. I do agree with you. There has always been lies in politics- look at political humor. That's the stereotype, right? Thus said, it is never a good thing and it has seemed to get out of control. We do need campaign finance reform. I do worry about it's comletion. There is a whole lot of money involved and Democrats are just as suseptable to money as Republicans. Would the President have spoke out against CU in the State of the Union address if his SuperPAC were making the same money as Mitt Romney's? I adore the President, but I must admit I highly highly doubt he would have. We need serious people to make some serious descisions. They will be tough. They will not be easy. I fear it will take some informed voters to back with votes more than money to get this. Idealistic, I know, but what else can we do?
Jim Crist September 11, 2012 at 09:13 PM
Publically financed elections is the way to go. A good model is called "Clean Elections" http://en.wikipedia.org/wiki/Clean_Elections Another good approach is Larry Lessig's "Democracy Voucher" http://wiki.lessig.org/The28th
James R Hoffa September 11, 2012 at 10:46 PM
@FreeThought Troy - And here's what progressive atheism gets us - Kardashian breast implants over observance of the 9/11 moment of silence. http://tv.yahoo.com/news/nbc-shamed-in-social-media-for-failing-to-cover-9-11-moments-of-silence.html You sure you picked the right team to back?
Rich Spindler September 12, 2012 at 12:27 PM
First, corporations are created by and a product of our government, not by any constitutional guarantees. Thus, it makes sense that how they are regulated should be decided by our government. In fact, it used to be that each corporation had to get specific government approval and they had a statutory limited lifespan. There are no corporate rights written into the constitution, only powers the government has deemed to provide them thru statute. The problem is that these children of the government have become so large and powerful, they actually now control their parent thru legalized bribery contained in the election funding process. So we must end this legalized bribery and the fiction that corporations have constitutional rights in our constitution as written. Then the government will become our government again. Once it is our government again and legalized bribery has ended, rather than the government of business, unions, or any other corporations, these entities will be regulated as the people deem fit, without trampling on any person's individual rights.
FreeThought Troy September 12, 2012 at 01:25 PM
Are you refering to Kim Kardashian? She's Christian? And what does breast implants have to do with 9/11 rememberances? And since when did 9/11 become a religious only day of mourning? What? Athiests can't mourn? Besides, the terrorists of 9/11 were religious zealouts. So yeah, my Atheist backs the right team. Science flies people to explore space. Religion flies them into buildings.
Jeff Varady September 12, 2012 at 01:38 PM
This is an important debate but let's be clear and factual in having it. First of all Mr. Kamenick offers kudo's to Mr. Abele for vetoing this measure seemingly to imply that he opposes the measure. In fact, Abele's stated reason for the veto is not because he disagrees with the position, but that he feels non binding resolutions are an unnecessary county expense. Secondly, he clearly wants to frame this debate as a partisan one by citing it was brought by "liberal groups". In fact this type of resolution is being brought before governing bodies all over the country by citizens who have political views ranging from far left to far right. The fact that 14 of 18 board members (78%) voted in favor of it is very reflective of most polling on the subject and seems to support my position that it is a non partisan issue. Third, I don't accept the premise of your question as stated. You can't "strip corporations of constitutional rights" they were never granted by the constitution in the first place. This is where most of your arguments fall apart. Corporations are legal fictions that are granted priviledges, not rights and there is a huge difference. Priviledges can most definitely be revoked.
Tom Kamenick September 12, 2012 at 01:50 PM
Thank you for your comments, Jeff. I want to point out that the U.S. Supreme Court has recognized that corporations possess constitutional rights for over 200 years. You may disagree with that conclusion, but SCOTUS is the ultimate arbiter of constitutional interpretation. Regardless of if you believe corporations don't have constitutional rights or you think they do have them but they should be stripped of them, either construction leads to all the possibilities I listed. Do you believe government should be able to censor and control the speech of corporations? Do you believe government should be able to seize corporate property at will? Do you believe that if a corporation is sued in court, they should not be provided due process of law?
Tom Kamenick September 12, 2012 at 01:53 PM
Hi Rich, I see you recognize the problems corporate cronyism and regulatory capture create. That's good! But do you see how stripping corporations of constitutional rights (SCOTUS has recognized such rights for over 200 years) is an overreaction that would create the potential for massive governmental tyranny?
Jeff Varady September 12, 2012 at 02:39 PM
The distinction between priviledges and rights is an important one to remember when having this debate. I offer an analogy. People from foreign countries are routinely granted visas that allow them the priviledges to live on our soil, interact in our society, and enjoy the protections our laws offer. As long as they abide by the laws put in place by our elected officials they enjoy these priviledges, but they do not have the same constitutional rights as our citizens. They do not have the right to participate in our electoral process. I do not see a rash of "big government" abuse of these individuals i.e. ceasing their property.
Jay Sykes September 12, 2012 at 03:04 PM
@Tom Kamenik... Different types of corporations are subject to various and different tax schemes(Sub S, C corp,LLC, 501(c)3...) Are any Corporations anointed with different 'Constitutional Rights' than any others,due to their structure? I find it interesting that so many confuse 'Corporation' with 'Crony Capitalism' and don't understand the 'Law of Unintended Consequences '.
Tom Kamenick September 12, 2012 at 03:30 PM
Foreign nationals have nearly all of the constitutional rights that U.S. citizens do while they are on U.S. soil. The only right I can think of off the top of my head that they do not have is the right to vote (and related activities like signing a recall or referendum petition). You haven't answered my question of whether you think government ought to have that power. Business corporations are the vilified political bogeymen for those on the left - broadly speaking. Union corporations are the vilified political bogeymen for those on the right - also broadly speaking. All kinds of nonprofit corporations take political stances unpopular with governing parties. News corporations are often critical of governing politicians. That's a recipe for disaster if we take away corporate rights and give government - at all levels - the power to do just about anything to a corporation.
Dave Koven September 12, 2012 at 03:36 PM
Help me out here...Super PAC money allows an individual or corporation access to a lawmaker. Then what? Where does the physical money actually go from there? How much of it goes to buy luxuries for the elected official personally? Is this the case? Trace the path the money actually takes (if only theoretically) for me. There must be a reason a person spends millions of dollars to obtain a job that only pays $250,000 roughly.
Tom Kamenick September 12, 2012 at 03:42 PM
Super PAC's cannot donate directly to candidates in federal elections and most state (including Wisconsin) elections. Super PAC money goes to (a) production teams who create ads; and (b) media outlets who run them. But you're on to something wondering what the return is that justifies spending so much by the politician him or herself. Do some reading on public choice theory, you'll probably find a lot to learn there.
Jeff Varady September 12, 2012 at 04:07 PM
Tom, I am not a constitutional lawyer and although it is a minor point for this discussion, I believe Southern Railroad v Santa Clara county was ruled on in 1886 and where the false doctrine of corporate personhood began. That was 125 years ago, not 200 but let's put that detail aside. I do in fact believe that in a democracy the duly elected officials can put limitations on corporations. You pose many hypotheticals that might occur under the heavy hand of "government". Government is comprised of elected representatives of people. I believe these scenarios you describe pose political issues, not legal ones. If a congressman proposes legislation to regulate what a preacher can say from his pulpit the people who elected that congressman have a course of action they can take. They can vote for or against that congressman, they can use the political process to resolve that issue one way or the other. If elected officials treat a corporation in a manner the citizens feel is unjust they have political recourse. That is how our democracy is intended to work.
Tom Kamenick September 12, 2012 at 05:43 PM
If that's the way you view government, why have constitutional rights at all? We can strike the whole bill of rights and the concept of enumerated powers if all you want to have is unfettered representative majoritarian rule. The constitution operates as a restraint on simple majority rule by limiting the actions the government can legitimately take - and creating courts to interpret those limitations.
Jim Crist September 12, 2012 at 05:59 PM
Tom, For an attorney, you seem to know very little about constitutional law. The word 'corporation' (in any form) is NOT in the constitution. And corporations didn't have any rights (only privileges) prior to Southern Railroad v Santa Clara County in 1886. And even then, it was snuck into the headnotes a year after the case by a court reporter / railroad man, when the Chief Justice was on his death bed. So, corporations have only had rights for 125 years. What we have now is bad government controlled by corporations. We need to return to the framer's intent, where our elected officials are acting in the best interests of their constituent's needs. And not just the richest 1%.
Tom Kamenick September 12, 2012 at 06:12 PM
Anybody interested in learning about the history of "corporate personhood" and understanding how treating a corporation the same as a "person" under the Constitution is actually not the underpinning for corporate constitutional rights should read this excellent article by Ilya Shapiro and Caitlyn McCarthy http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&cad=rja&ved=0CDkQFjAD&url=http%3A%2F%2Fwww.cato.org%2Fpubs%2Farticles%2FShapiro-JMLR-vol44-n4-2011.pdf&ei=4c1QUIDUNYTFyAGVk4CoCQ&usg=AFQjCNFAuBadJOpwK9K7VkvOusbQuLFNIw
Tom Kamenick September 12, 2012 at 06:13 PM
From the abstract - "Much of the criticism of Citizens United stems from the claim that the Constitution does not protect corporations because they are not “real” people. While it’s true that corporations aren’t human beings, that truism is constitutionally irrelevant because corporations are formed by individuals as a means of exercising their constitutionally protected rights. When individuals pool their resources and speak under the legal fiction of a corporation, they do not lose their rights. It cannot be any other way; in a world where corporations are not entitled to constitutional protections, the police would be free to storm office buildings and seize computers or documents. The mayor of New York City could exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there. Moreover, the government would be able to censor all corporate speech, including that of so-called media corporations. In short, rights-bearing individuals do not forfeit those rights when they associate in groups.
Jim Crist September 12, 2012 at 06:36 PM
Well that explains your twisted logic. You get your 'facts' (a.k.a lies) from the Cato Institute which is controlled by the Koch Brothers.
Jeff Varady September 12, 2012 at 06:56 PM
Tom, we apparently agree that a corporation is not a person. I think we probably also agree that we are a nation governed by laws that are enacted in accordance with the constitution. The founders intent is quite clear to me and most others I believe that these "rights" were intended for people. I don't believe you can show me in the constitution where it extends those same rights to corporations. My state government affords me the "priviledge" of a driver's license if I comply with the laws and regulations the state sets forth, but it is not my constitutional right. The same applies when a state grants "priviledges" via a corporate charter. I agree that SCOTUS is the final abitor in regards to the law, however I believe on the issue of corporate personhood, they are simply wrong and so do the majority of the American people. Let's also not forget that simply because a court ruled in a certain way does not mean that all the justices agreed. I imagine in a huge majority of those cases there were minority dissenting opinions issued as well. I don't believe you have cited one example of a scenario in which a "persons" constitutional rights would be denied simply because it was not allowed to be exercised under a corporate tent. I also don't believe much in politics based on fear, which is what a lot of your argument feels like.
Jeff Varady September 12, 2012 at 07:10 PM
In closing let me say this. I don't know you and unfamiliar with your political views but I will make a couple observations. You omitted the reason this measure was vetoed for reasons unknown to me but it could indicate one of two things. Either you haven't done your research thoroughly or that you felt that including it might weaken your argument. Neither strengthen your credibility. Secondly despite a number of comments expressing concern about the effects this amendment would have on the press you also omitted Section 3 of the MTA proposed amendment. It states "Nothing in this amendment shall be construed to abridge freedom of the press" Now one might argue that the proposed language needs to be clarified or strengthened in some fashion but the MTA clearly has shown intent to protect it but to omit it's existence from your article or comments could indicate a bias on your part and that again doesn't do anything to strengthen the credibility of your arguments in my view. Respectfully, Jeff Varady
Michael McClusky September 12, 2012 at 08:04 PM
@Jim Crist 'Evil prospers when good men do nothing." William Shakespeare
Tom Kamenick September 12, 2012 at 08:06 PM
Regarding Section 3, other commentors (whom I linked to above) have already addressed that (and far more ably than I), but that section does not save, say, the New York Times or any other news corporation from censorship. Yes, it says the freedom of the press shall still be protected, but corporations will no longer have freedom of the press - it will operate only to protect the freedom of the press for individuals. Which is exactly what MTA admits they want.
Lyle Ruble September 12, 2012 at 09:11 PM
I am disturbed by the misunderstanding of the rights verse the privileges for corporations. In essence privileges and rights are used interchangeably. The way that some are differentiating between rights and privileges is meaningless. Rights do not only apply to constitutionally granted rights, but rights are protections based in a social contract to protect the affected parties. Privileges allow for specific actions beyond protections. The privilege argument is sound to the extent that governments can only grant statutory privileges/rights and they differ from state to state. One type of business corporation is entirely legal in one jurisdiction and illegal in another. This has an impact of variance on how and when the corporate entity can pursue their interests. All states allow for the creation of the corporate entity and the privileges and rights are clearly spelled out for that jurisdiction. Freedom of speech and free association for corporations are statutorily granted. The statutory privilege granted to the corporation is not for the corporation's interest but for the interest of the natural citizens making up the corporation. Corporations are allowed to spend their monies in any way they can legally spend it by law. To promote certain political positions are protected based on the corporation pursuing its own self interest. Hence, lobbying is allowed as well as political contributions. Amendments aren't needed, just statutory reform.
LeMoyne Castle September 15, 2012 at 03:43 PM
Granting natural and constitutional human political rights to corporations endows the owners and operators of corporations with a second potentially much more powerful set of rights. Any doctrine of corporate personhood inherently violates the principle of equal protection. The twisted irony is that the 19th century claims of personhood were based on the 14th amendment's equal protection clause. The OP continues and extends this misbegotten conflation of corporate and human rights. The argument that a government captured by capitalists is the problem is truly 'blaming the victim'. Though our government of/by/for the people has been lost, its restoration will not be found in unleashing neo-feudalism by reducing and further privatization of government into an appendage of the corporate state.
Victor Tiffany September 18, 2012 at 11:00 PM
Tom, we've addressed your 7 points and this abstract from Shapiro. You are welcome to make comments. http://www.amendmentgazette.com/2012/09/18/taking-on-amendment-critics-part-xii-tom-kamenick/
Logan Quinsey August 24, 2013 at 02:06 PM
Tom, as a lawyer you out to be well aware that your fear-mongering interpretation is nothing but propaganda. Your characterizations of the freedoms lost are patently absurd. For instance, freedom of the press is guaranteed regardless of corporate person-hood status. As to why one would trust the government but not corporations, one of the government's primary intended functions is to protect the rights citizens from predatory corporate practices. Unfortunately our government as fallen victim to corporate control, and campaign "contributions" is one of the primary manners in which this has occurred. The invocation of corporate rights is consistently used to get around protective regulations, to the detriment of our communities, our environment, and our economy. Given the alarmist, nonfactual, and blatant misrepresentation of constitutional law you have presented, given the fact that you take your information from the worst perpetrators of corporate overreach, I am adding you to a data-base of known dissemblers of corporate propaganda and enemies of democracy. Congratulations on your new status as a known corporate shill.


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