by Joe Shea
February 11, 2011
ISRAEL SWIMS AGAINST THE CURRENT
DUMMERSTON, Vt. -- "The business corporation is an artificial state-created entity with unlimited life; highly favorable techniques for acquiring, accumulating, and retaining vast wealth through economic transactions having nothing to do with politics; and only one purpose - making money. Human beings, on the other hand, die, do not enjoy economic advantages like limited liability and, most important, have a conscience that sometimes transcends crude economic self-interest."
These are the words of Burt Neuborn, a professor at New York University Law School who also founded the Brennan Center for Justice at NYU, served as national legal director of American Civil Liberties Union and represented Sens. John McCain and Russ Feingold in litigation of campaign finance reform.
An expert on the subject of corporate personhood, he recently debated noted First Amendment attorney Floyd Abrams on corporations, free speech and the U.S. Supreme Court's 2010 Citizens United v. Federal Election Commission decision on the pages of The Nation in its Jan. 31, 2011, issue, taking the side of opposition to what is arguably the worst Supreme Court decision since the Dred Scott case in 1857.
With the recent first anniversary of Citizens United that opened the floodgates to limitless spending by corporate interests in our elections just past, we now know the damage that was done, As Neuborn pointed out, more than $4 billion was spent by both Democratic and Republican candidates in the 2010 midterm elections. At least $300 billion - probably more, the exact amount isn't known because there were no disclosure rules - was spent by corporations. And in 53 of the 72 contested Congressional races and at least three Senate races, Republican candidates that received the most corporate money won the election.
The 2012 elections will see even more money, nearly all of going toward conservative, pro-business Republican candidates. Our elections are now being sold off to the highest bidder. As long as the Supreme Court equates campaign spending with free speech, and as long as it believes that corporations are subject to the same constitutional protections as humans, there is absolutely no chance that campaign finance laws will change.
But Vermont is doing something about it. On Jan. 21, state Sen. Virginia Lyons introduced a resolution - co-sponsored by 10 other members of the 30-member Vermont Senate - that seeks to revoke the granting of personhood rights to U.S. corporations. The bill calls for a constitutional amendment that declares that "corporations are not persons under the laws of the United States."
Lyon's resolution does not mince words. "The profits and institutional survival of large corporations are often in direct conflict with the essential needs and rights of human beings," it states, adding that corporations "have used their so-called rights to successfully seek the judicial reversal of democratically enacted laws."
As a result, "democratically elected governments" are rendered "ineffective in protecting their citizens against corporate harm to the environment, health, workers, independent business, and local and regional economies."
I've been writing the words "Vermont" and "first in the nation" a lot over the years. To the long list of firsts from same-sex marriage to health care, this can be added - Vermont is now the first state to introduce at the legislative level a resolution calling for a constitutional amendment to limit constitutional rights to human beings only, and not arbitrary entities called corporations.
A constitutional amendment is the only way we can overturn 125 years of faulty jurisprudence. It was in 1886, in Santa Clara County v. Southern Pacific Railroad, that the U.S. Supreme Court ruled that corporations are persons and entitled the same constitutional protections as flesh-and-blood entities.
You won't find the word "corporation" in the U.S. Constitution. Remember, the American Revolution was fought, in part, as a revolt against corporate power.
The Boston Tea Party, when colonists destroyed tons of tea in 1773, was a protest that stemmed from a massive tax break that the East India Company - arguably the world's first transnational corporation - received from the British Parliament on thousands of tons of tea it had stockpiled. Smaller competitors feared this would undercut their prices and put them out of business.
Britain responded to the vandalism by closing the port of Boston to commerce until the city repaid the East India Company for damages. This was the spark that led to the Revolutionary War and the end of British colonial rule in America. And that's why the framers of the Constitution were wary of giving any rights to corporations, and left it to state governments to regulate them.
Until the Santa Clara case, it was illegal for corporations to buy or own stock in another corporation. It was illegal to engage in more than one business. It was illegal to participate in politics. It was illegal to even exist after 40 years, a rule in place to prevent the wealthy and power from amassing and sheltering their money for future generations.
But after the Santa Clara case, the restrictions that state governments placed on corporations slowly disappeared. Instead, states competed to see which states could be the most corporate-friendly.
The Citizens United case, even though it dealt with free speech as it applied to political campaigns, can be seen as the culmination of more than a century of enabling lawless behavior by corporations.
A corporation can inflict bodily harm, but never get imprisoned. A corporation can destroy a town's economy, but never face sanctions for doing so. Even though it does not possess a body or soul, it has the right to speak and influence public opinion. It is immortal, and can change its shape (through spin-offs and mergers), its name and its identity at will. Yet, despite not having a human form, a corporation enjoys the same legal protections as you and I.
There is a lot of talk lately about the "original intent" of the Constitution, but you'll rarely, if ever, hear the defenders of the Founding Fathers' work object to the concept of corporate personhood. Again, there is nothing in the Constitution that grants these rights. But that very lack of a stated protected status for non-human business entities has allowed corporations to run rough-shod over our democracy.
It's time to put an end to this legal fiction, and amend the Constitution to protect Americans from out-of-control corporate power.
Chief of AR Correspondents Randolph T. Holhut has been a journalist in New England for more than 30 years. He edited "The George Seldes Reader" (Barricade Books). He can be reached at firstname.lastname@example.org.