Eco-Justice Ministries  

Eco-Justice Notes
The E-mail Commentary from Eco-Justice Ministries

Corporate Personhood?
distributed 1/20/12 - ©2012

Two years ago today, the US Supreme Court issued their controversial "Citizens United" ruling, which has opened the door to unconstrained corporate spending on political campaigns.

That 5-4 decision by the Supremes has fanned the flames of the movement to "abolish corporate personhood". In the two pages or so of today's Notes, I'm not going to solve the enormously complicated questions that are involved, but this is an appropriate day to touch on some of the ethical and practical aspects of that ongoing conversation.

I look forward to hearing from y'all about these thoughts. I'm sure you will provide a diverse and passionate set of reactions!

+     +     +     +     +

Let me be very clear from the start. Corporations are not "people" -- or in legal language, not "natural persons". They are a human creation with qualities very different from us mortal creatures of the flesh.

Corporations are not destined to die, and indeed some have continued for hundreds of years. Corporations can divide themselves, or merge with others. They come into being when documents are filed with the state, and they are created to fulfill specific purposes. They can be residents of multiple locations, even multiple countries, at the same time.

Corporations are expressions of a collective intention, with accountability distributed among owners, board members, officers and employees. Corporations, themselves, have no conscience and no morality. (Which has led to some interesting discussions about whether corporations are inherently "sociopathic".)

Corporations are not human beings. Theologically, I would say that they are not creatures with moral standing within God's creation. (Thus, the ethical phrasing I have used, "Thou shalt not exploit what God has made", was formulated so that corporations would be seen as protected.) Corporations are things, legal constructions that serve our purposes, and their rights and privileges can be changed as we see fit. "Citizens United" and other current situations show that it is past time to make some of those adjustments.

But corporations do exist, and they exist in a very powerful way that runs through the fabric of our society. They are not people, but they are something, and their status needs to be very clear in law and in practice.

Through a long and complex legal history, it has been convenient to say that corporations have some (but not all) of the qualities and rights of natural persons. If -- as some are proposing -- only "human beings, not corporations, are persons entitled to constitutional rights", then we need to figure out a whole new legal structure to define what is appropriate for corporations.

Corporations are not just the multinational giants, but include a wide range of for-profit and not-for-profit organizations. Eco-Justice Ministries is a corporation. So is your local church, your favorite independent bookseller, and the small grocery store with organic produce. If they are not granted some aspects of personhood, then what legal standing do they have?

Commentator Greg Colvin has pointed out that a blanket elimination of corporate personhood would end, not only the right to political speech, but also the protections of due process, equal protection, search and seizure, and privacy.

So think about it. Do you want the police to search the offices of the Sierra Club without a warrant? Do you want the NAACP to have no right to protect the privacy of its membership list? Do you want the state to take the property of a community hospital to widen a highway, without just compensation under eminent domain? If Planned Parenthood needs to defend itself in court, should it have no right to counsel, no protection against self-incrimination or double jeopardy?

Rather than create an entirely separate realm of law to deal with corporations, it has been convenient -- so far -- to apply many of the same principles to both humans and corporations. There have always been exceptions, though.

Corporations are not citizens, and they cannot vote. The Supreme Court has held that corporations don't have the Fifth Amendment protection against forced self-incrimination. Corporations exist under different tax laws than apply to individuals. They are subject to many regulations and requirements that do not apply to natural persons. Non-profit corporations are excluded from any activities that support or oppose political candidates (but are not blocked from weighing in on legislation).

The law has always been clear that corporations may claim some aspects of personhood, but that they are not the same as human beings. It gets messy when we try to draw the dividing lines.

+     +     +     +     +

The Citizens United decision has stirred up anger because of the freedom it allows corporations to participate in this nation's electoral process. Many of us know, in our guts, that such corporate intrusions are inappropriate.

I don't think the answer is to proclaim that corporations don't have any of the rights that we have associated with personhood, but we do need to be clear about the limits. Two inter-related pieces of the "personhood" issue need to be clarified.

  1. Money is not "speech", especially for corporations. Corporations may speak in many ways -- with newspaper editorials, advertising campaigns, or producing documentary films with a clear bias (the film "Hillary" is a key element in "Citizens United"). There is a difference, though, between speaking and publishing, and simply distributing money.
  2. As one commentator on Daily Kos put it clearly, "Corporations should not have the political rights of the Individual simply because they have the economic rights of the Individual". Something similar to the restrictions that now apply to non-profit corporations should be extended to all corporations, at least for financial involvement supporting or opposing candidates, including "political action committees".

These two principles will be hard to define in clear legal terms. Corporations (and candidates) will be very creative in finding loopholes. But the issues of money as speech and corporate involvement in campaigns are places where we can address questions of legitimate power and morality, without throwing open the entire question of corporate personhood.

That's where my research and my ethical pondering put me. What do you think?

Shalom!

Peter Sawtell
Executive Director
Eco-Justice Ministries

Sign up for our free weekly e-newsletter, Eco-Justice Notes,
or select other email options from Eco-Justice Ministries
Your Email:
Your email address will never be shared, and
you can change your subscription choices at any time.

NOTE: For some detailed background on Citizens United and matters of corporate personhood, I found the "SCOTUS blog" (Supreme Court of the United States) related to that topic to be very interesting.


Eco-Justice Ministries   *   400 S Williams St, Denver, CO   80209   *   303.715.3873
Home Page: www.eco-justice.org   *   E-mail: ministry@eco-justice.org