(Host) Many Vermonters have jumped on board the bandwagon recently for
amending the U.S. Constitution to prohibit corporations from being
treated as persons under the law. But commentator and Vermont Law School
professor Don Kreis thinks the movement might be missing the point.
(Kreis)
Count me among those who are puzzled – and a little worried – about the
recent furor over so-called "corporate personhood." People are all
riled up about this notion of corporations as persons in the wake of the
much-reviled Citizens United decision of the U.S. Supreme Court two
years ago. It’s the case in which the Court decided, by a 5-4 vote, that
the First Amendment protects corporate entities as well as individual
citizens in the context of restrictions on campaign contributions. The
case furthers the regrettable notion that, in the political realm at
least, money equals speech – free speech, in particular.
What’s
odd about the resulting spasm of discontent over corporate personhood is
that neither the phrase nor the concept appear anywhere in the Citizens
United decision. In fact, I would argue that the actual decision of the
Court is pretty unexceptional. If we enjoy free speech rights as
individuals, why should we shed them when we exercise them collectively?
Whether it’s the newsletter of my local Parent-Teacher Organization,
the editorials in the New York Times, or a hostile documentary some
group called Citizens United made about Hillary Clinton, I’m comfortable
with the notion that First Amendment freedoms apply.
I too am
disgruntled by the Citizens United decision, because it opens the door
wide to dominance of our democracy by the wealthy and powerful. But I
would take the national debate over Citizens United in a different
direction.
I’d start from the premise that corporations are not
inherently evil – they are empty vessels. You can incorporate and become
a vast conglomerate and then spill oil in the Gulf of Mexico . You can
incorporate as a nonprofit and serve the poor and the dispossessed. Or
you can incorporate as a cooperative and harness entrepreneurial energy
for the good of the customers or the workers or the farmers who own the
co-op.
Then I would consider why we incorporate. A certificate
of incorporation, issued by a state, is the gift that keeps on giving.
The essence of incorporation is limited liability – the owners of a
corporate entity can lose only their investment and nothing more. And
corporate entities enjoy perpetual life – they never have to return to
the government agency that authorized their incorporation and justify
their continued existence.
Maybe it’s time to change that. The
notion of corporate personhood is really just a metaphor – perhaps we
should run with it. How about the death penalty for corporate entities
that suck wealth out of their communities and leave nothing but squalor
and misery in their wake? How about new laws that facilitate, rather
than discourage, individual people investing in locally based corporate
entities that truly dedicate themselves to life-affirming and
community-affirming purposes?
If we did those things, then maybe
wealth-maximizing corporations would become less powerful – and we’d
see a new birth of freedom… so that government of the people, by the
people, and for the people, shall not perish from the Earth. To coin a
phrase.