Wednesday, May 30, 2012


Back in 2008, an organization called Citizens United put together a movie which was highly critical of Hillary Clinton. The folks at Citizens United apparently thought that Hillary would win the Democratic nomination for President.

The Citizens United people were a little nervous. There is a thing called the Bipartisan Campaign Financing Reform Act on the books. Better known as McCain-Feinold, the act imposes stiff penalties, even jail time, for doing what it forbids.

And it forbids corporations from spending money to support or defeat a candidate for federal office.

It’s an understatement to say that the regulation of campaign expenditures is a grey area of the law.

Anyway, Citizens United didn’t want any trouble, so they started a lawsuit to determine if it was legal for them to broadcast “Hillary:The Movie” on television.

By the time the case got to the Supreme Court, Hillary Clinton had lost the Democratic nomination to Barack Obama .

Still, it was a juicy legal question.

The Supreme Court decided in favor of Citizens United.

I heard Justice Clarence Thomas talk about the case at Stetson University Law School. He made it sound pretty simple. If one man has a right to spend money for or against a candidate, so can two or three. If people have a constitutional right to assemble peaceably, they have a constitutional right to associate for any lawful purpose.

And spend their money.

A few years ago, Michael Moore made a movie called “Fahrenheit 9-11” which had a lot to say about President George W. Bush. Currently, there’s a number one best seller called “The Amateur, Obama’s Faith” by Edward Klein. It will certainly have an impact on this year’s election.

Still there are thousands of voices being raised around the country, calling for the reversal of the Citizen’s United case. Typically, these protesters insist that corporations are not human beings, and that they do not have the constitutional rights that people do.

You can’t quarrel with that. Corporations are fictional persons, creatures of the government which charters them. They have such powers, and only such powers as the corporation laws give them. If they do things that are not within the scope of their corporate powers, they are said to be acting ultra vires, and the state can forfeit their charters.

But corporation laws typically do not prevent corporations from advertising, or from publishing or broadcasting. Corporations like Citizens United are organized for the very purpose of promoting the political views of the incorporators.

Other corporations, such as labor unions, chambers of commerce, industry associations and the like are organized to promote the economic interests of their members. Very often those interests are affected by the actions taken by public officials.

General business corporations are increasingly affected by legislation.

Environmental laws, tax laws, securities regulations, you name it, what the Congress doesn’t dictate is delegated to a vast bureaucracy empowered to promulgate rules, make findings and issue orders.

All of which fosters the unholy alliances between lobbyists and legislators, politicians and partisans, cash cows and candidates.

I don’t like it any more than you do.

But I can’t bring myself to believe that a simplistic constitutional amendment declaring that corporations have no constitutional rights would solve the problems.

I suspect that many of the brains behind such ideas wring their hands in anticipation of a day when corporate property can be confiscated without offending the Fifth Amendment of the Bill of Rights.


  1. Nobody likes it. To be effective, such an amendment would have to affirmatively re-define the economic and societal functions of incorporated entities by recognizing the sovereignty of The People, not *simply* revoking their personhood.

    Nobody's advocating the “confiscation” of corporate property; it should be returned to the stockholders whenever a charter is revoked. In most cases a revised charter would simply re-enforce what broad-based regulation currently fails to accomplish. (Blanket regulations tend to harm small corporate entities with “unintended consequences”; while large corporations can easily afford “compliance”. ) Regulatory rules need to be applied specifically and customized to the size and nature of the individual corporation being chartered; and they need the flexibility for growth that only a renewable charter could offer. Much of the unfairness inherent in the enforcement of interstate commerce could be avoided in this way also.

    I also notice that you can't bring yourself to draft a complicated Amendment that would be to your liking. Have you given up on the Constitution altogether?

  2. You must rank cooley ahead of harvard! Do it!