by Matthew Rothschild, Executive Director
July 9, 2018
If you’re concerned about corporate power, if you’re still outraged by the Citizens United decision, if you wonder how we’ve lost our democracy, then read this book: We the Corporations: How American Businesses Won Their Civil Rights.
It’s written breezily by Adam Winkler, a law professor at UCLA, and he shows that the Citizens United decision of 2010 “was, in fact, the culmination of a 200-year struggle for constitutional rights for corporations. . . . While corporate rights reached new heights with Citizens United, the scaffolding had been built up over two centuries of Supreme Court decisions.”
He starts with the Bank of the United States v. Deveaux of 1809 and the Dartmouth College case of 1819. And he gives a fascinating account of Santa Clara County v. Southern Pacific Railroad of 1886, where the Supreme Court’s reporter, not the justices, declared in a headnote to the decision that “corporations are persons within the meaning of the Fourteenth Amendment,” when, in fact, the justices had declared no such thing.
In subsequent cases, justices would cite that declaration as precedent, Winkler explains: “Over the next two decades, Santa Clara would take on sweeping importance as the justices repeatedly cited and relied on that case for authoritatively deciding that corporations were entitled to Fourteenth Amendment’s guarantees of equal protection and deuce process—legal principles never endorsed by the decision itself.”
In many decisions aggrandizing the rights of corporations, however, the Supreme Court relied not on the “corporate personhood” designation, Winkler argues, but on a separate claim: that corporations are merely associations of persons, and since the rights of those persons can’t be curtailed, the rights of corporations can’t be curtailed, either.
Even in the Citizens United case of 2010, which said that corporations, unions, and other groups can spend unlimited amounts of money to advocate for the candidates of their choice, the Supreme Court did not actually lean on the assertion that corporations are persons. “Corporate personhood—the idea that a corporation is an entity with rights and obligations separate and distinct from the rights and obligations of its members—is entirely missing from the court’s opinion,” he writes. Instead, the Court again “obscured the corporate entity” by “treating corporations as associations.”
But whether the Supreme Court has been using the doctrine of corporate personhood or the sleight of hand that corporations are merely associations of persons, the fact is that corporations, which are nowhere mentioned – much less protected—in the actual Constitution of the United States, now have won for themselves extraordinary rights they do not deserve, and they are trampling all over the rights that we, as living, breathing, persons, are supposed to exclusively have.
The vast majority of Americans get this in their gut. That’s why Citizens United was such an unpopular decision, and that’s why, in poll after poll, Americans by overwhelming margins want to limit what corporations can spend on elections.
Though the Citizens United decision did not assert that corporations are persons (Santa Clara County did that in 1886) or that money is speech (Buckley v. Valeo did that in 1976), Citizens United did grant corporations enormous new clout in our political affairs. And justifiably, Citizens United, in common parlance, has become shorthand for “Corporations have way too much power.” It’s shorthand for “Our political system is corrupt.” It’s shorthand for “We don’t have a voice.” It’s shorthand for “We’ve been screwed.”
If you have any interest whatsoever in finding out how this dirty deed has been done, this is the book for you.