Editor's Note: This is the final post in an ACSblog debate on the constitutional rights of corporations between David H. Gans of the Constitutional Accountability Center (CAC) and Michael S. Greve of the American Enterprise Institute for Public Policy Research (AEI). All posts in the debate are here.
By Michael S. Greve, the John G. Searle Scholar at the American Enterprise Institute for Public Policy Research (AEI). Mr. Greve also co-founded the Center for Individual Rights, a public interest law firm.
Nothing in Citizens United dissuades me from my earlier post's position that the corporate "personhood" question is an unhelpful distraction. No one (including the CU majority) contends that corporations are persons that can (let alone must) enjoy all the constitutional rights of natural persons. Conversely, the CU dissent acknowledges that corporations are covered by the First Amendment and that private associations of individuals do not lose their First Amendment rights merely because they are organized in corporate form.
Either way, the question is whether government has sufficiently good and relevant reasons to treat corporations (and unions) more restrictively than individuals. Justice Kennedy's opinion for the Court and Ju
stice Stevens's dissent both devote most of their substantive discussion to that question. Of course, they arrive at very different answers.
It should surprise no one that the reasons for corporate expenditure limits that the Court used to credit-the "anti-distortion," "anti-corruption," and "shareholder protection" rationales-have now been found wanting. (I think Progressives actually saw this coming: the "corporations-aren't-persons-and-so-therefore" argument owes its belated rise to the fear that the conventional arguments would no longer do.) Justice Stevens's snarl that the "only relevant thing that has changed ... is the composition of this Court" may be right in a crass legal-realist sense. It is wrong in substance: over the years, campaign finance law and litigation has taught us, and quite probably some justices, that the game isn't worth the candle. The dissent itself suggests the point, although not in the way its author intends.
When citizens get "the impression that corporations dominate our politics," the dissent bemoans, "they may lose faith" in our democratic institutions and fall into "cynicism and disenchantment" (Dissent, p. 81) There is indeed no shortage of public cynicism-and it has risen in tandem with the volume of campaign finance regulation. Public approval of Congress stood at 40 percent in 1974, when legislation started in earnest. It stood at 24 percent in 2000, when BCRA was enacted. It now stands at 17 percent. Progressives loudly clamor for another round of legislation to respond to Citizens United-perhaps, to test whether public approval can sink below zero.
d history, ignoring that the Constitution was written for and by "We the People," and that from the framing on, it has been blackletter law that corporations are artificial creatures of the State, subject to government oversight to ensure that they do not abuse the special privileges granted to them to succeed in business. As Justice Stevens' brilliant dissent put it, "the Framers took it as given that corporations could be comprehensively regulated in the public welfare." Rather than own up to constitutional first principles, both Kennedy's majority opinion and Justice Scalia's concurrence blithely dismissed them. Both Kennedy and Scalia repeatedly relied on constitutional protection for the media in arguing that the Constitution gives the same rights to corporations and the people, ignoring that the press were the only private business given explicit constitutional protection in the Constitution. Justice Scalia even goes so far as to suggest that the framers would actually have liked modern corporations if they only they had the chance to see them in action. Those who take constitutional text and history seriously should be appalled that this is what passes for legitimate argument by the leading originalist on the Court.
nt-seeking community is not unique to health care. It is the institutional backbone and programmatic essence of contemporary Progressivism, as even a casual look at proposed legislation on energy, global warming, job "creation," or for that matter financial regulation will readily confirm. A campaign finance law that choked off the coalition's financial lifeblood might find support among "We the People" who host tea parties. For better or worse, though, I doubt that this is what Gans & Kendall have in mind, or what a constitutionally unconstrained Congress would produce.
m would certainly be rejected. In CAC's forthcoming report, "A Capitalist Joker": Corporations, Corporate Personhood, and the Constitution" (released as a discussion draft in December and available