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.

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 Justice 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.

Editor's Note: This is the third 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). The final post, from Mr. Greve, is here.

Last Thursday, in Citizens United v. FEC, the Supreme Court announced, for the first time in history, that corporations have the same rights as individuals to spend money on the electoral process, and corporate personhood was at the heart of the Court's opinion. In Justice Kennedy's view, corporations are simply "associations of citizens," and therefore deserve the same constitution rights as living persons. The Court's opinion interred a century of campaign finance law built on the idea that corporate participation in the electoral process must be strictly regulated for the sake of our democracy.

The Court's conservative majority - including the Justices who repeatedly profess adherence to the Constitution's original meaning - turned their back on our Constitution's text and 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.

In fact, Michael Greve's initial take is more in line with Justice Stevens' dissent than either Justice Kennedy's majority opinion or Justice Scalia's concurring opinion. It was Stevens' dissent, not the 5-justice conservative majority, that adopted Greve's "common sense" position: "corporations do not enjoy the same rights as individuals." Kennedy's majority opinion, on the other hand, rejected this "sensible" notion, treating corporations as nothing more than "associations of citizens" deserving equal rights as living persons.

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.

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 rent-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.

Editor's Note: This is the opening post in an ACSblog debate on the constitutional rights of corporations between David H. Gans of the Constitutional Accountability Center and Michael S. Greve of the American Enterprise Institute for Public Policy Research. Mr. Greve's post is scheduled for tomorrow.

Citizens United v. FEC raises fundamental questions about our Constitution, and our democracy. It is with good reason that the Court's failure to decide the case to date has received more press than most actual Supreme Court decisions receive. Citizens United argues that corporations have the same constitutional rights as the American people do to spend money on elections, and that the government may not limit corporate spending on elections. If the Court agrees, our democracy will suffer for it. Obama's 2008 fundraising records could easily have been dwarfed by a single mega-corporation willing to divert a tiny fraction of its profits to the election of its preferred candidate.

If the Justices decide the case based on the Constitution's text and history, Citizens United's sweeping claim 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 here), we show that, from the very beginnings of our Nation, the constitutional protections available to living persons and corporations have been fundamentally different. While James Madison wrote the Bill of Rights to protect the "great rights of mankind," corporations did not have any right to exist, let alone the same fundamental rights as "We the People." From the founding on, as Chief Justice Marshall explained, corporations were "artificial being[s], invisible, intangible, and existing only in the contemplation of law" and "possess[ing] only those properties which the charter of creation confer . . . . " To be sure, corporations received a host of special privileges that enabled them to succeed in business and some limited constitutional protection for their property rights, but these corporate attributes subjected them to greater government regulation, not less.

The distinctions between citizens and corporations are most pronounced when it comes to elections. The Constitution protects the rights of citizens to vote through constitutional amendments that no one could reasonably read to protect corporations, and prevention of improper corporate influence over the electoral process has been a pillar of our democracy as far back as 1833, when President Andrew Jackson castigated the Bank of the United States for its political spending on elections. In 1907, Congress enacted the Tillman Act and wrote into federal law a sharp distinction between the campaign finance laws applicable to living persons and those applicable to corporations, with the latter strictly regulated to prevent corruption of the electoral process. That sharp distinction has been there ever since, repeatedly reaffirmed by Congress and upheld by the courts.