Editor's Note: This is the second 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). Gans' opening post is available here. Their final posts are forthcoming.
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.
I agree that Citizens United v. FEC raises fundamental questions about our Constitution, and our democracy." However, I am not at all sure that they are the questions posed by David Gans's post and his Capitalist Joker (co-authored with Doug Kendall). That draft "report" reduces a complicated, fascinating legal history-the constitutional status of corporations-to a morality tale: populists versus plutocrats; Batman versus the Joker, with 277 footnotes. The chief villain is a Supreme Court reporter whose tendentious summary of an 1886 oral argument supposedly launched the nation on the path to corporate "personhood." Prime among the constitutional heroes is Senator Tillman, principal sponsor of the eponymous 1907 act that established the nation's first corporate campaign finance law. That would be Ben "Pitchfork" Tillman, a notorious racist rabble-rouser. The intended targets of his legislation were railroad and other corporations that lobbied against state-imposed segregation. Perhaps, the story is a bit more ambiguous than Gans & Kendall let on (and for the record, I'm with the plutocrats on this one).
A century later, the politics and morality of campaign finance remain complicated. If "a single mega-corporation" could have "dwarfed" Obama's 2008 fundraising record, another company could have doubled it. Health care and insurance corporations spent many millions on TV ads promoting the Obama/Reid/Pelosi health care legislation; they out-funded Coakley over Brown, 115K to 5K. In a world without campaign finance restrictions, perhaps they could have saved The Seat Formerly Known as Ted Kennedy's.
The de facto alliance between the MoveOn/DailyKos crowd and the re
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.
Political perplexities and dilemmas might count for little in the teeth of a compelling constitutional mandate or argument; but what is it? At times, Gans & Kendall quote and celebrate ante-bellum precedents that characterize corporations as "artificial" beings, whose legal rights are cabined by their charter of creation. The pseudo-originalism, though, is pure polemical make-weight; it cannot be the authors' true position.
First, the plain implication that corporations enjoy no constitutional protection-what the state giveth, it can take away-is too extreme to be plausible. It was too extreme for the antebellum Court, which helps to explain why the constitutional status of corporations in that era, contrary to the authors' novel and erroneous contention, was anything but "well-settled," Joker p. 12.
Second, modern corporations have nothing but their name in common with the state-created monopolies of the early or mid-1800s. At the end of that century, the corporate form and function, as well as state incorporation laws, underwent a dramatic change. (It was that transformation, not a rogue court reporter, that prompted a reassessment of the constitutional landscape.) Modern corporations are networks of contracts among private parties, who choose one standard legal form over others (such as partnerships) because it best facilitates some collective purpose-the pooling of assets in pursuit of profits (Exxon); the education of the country's elites (Harvard); the dissemination of information (The New York Times); the defense of a Constitution in Exile (Federalist Society), or the invention of a new one (ACS).
No one, to my knowledge, including the Citizens United plaintiffs, seriously claims that corporations enjoy all the rights of natural persons. Rather, the claim is that private enterprises cannot lose constitutional protection, including First Amendment rights, merely because they are organized in corporate form. Mr. Sullivan could sue The New York Times because it was a corporation; he lost because the Old Lady proved to enjoy First Amendment protection. Even corporations that actually are the state enjoy such protection, as when the University of California defends racial preference policies on the grounds of a First Amendment interest in academic freedom and diversity, see Bakke.
Probably for reasons of this sort, Gans & Kendall retreat to the position that corporations do not enjoy the same rights as individuals. That sensible (and common) ground, not the metaphysics of personhood or a morality play, is the stuff of Citizens United. Are corporations sufficiently different from individuals, in constitutionally relevant respects, to permit more restrictive treatment? Or is there something about campaign finance that permits special speech restrictions for entities that in other contexts, from libel law to pornography, enjoy full-blown First Amendment rights? The justices will surely differ over the answers; but at least, they will differ over the right questions.
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