MARK MARTINEZ: Corporate personhood: A flawed construct that undermines democracy
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"If you can't vote, you can't contribute." This was part of a conversation I had about political campaigns awhile back. And it stopped me in my tracks. With this simple comment, my friend Larry Moxley summarized how to deal with the influence money has on our political system. And I agreed.
So you know -- and I want to be clear on this -- Larry Moxley and I are on opposite sides of the political spectrum. There's very little we agree on. We've had strong debates that literally have turned heads in restaurants over the years. But we're friends who can agree on the things that undermine our national priorities.
When it comes to the influence of money in our political system, Mr. Moxley and I agree on this: It's undermining our political system.
Most of us understand the influence money has on our politics. Simply put, to become legitimate candidates, office seekers spend so much time chasing large donations and corporate money that they lose sight of what's good for our communities and our nation.
This shouldn't be a surprise. When asked why he did what he did, famed bank robber Willie Sutton replied, "That's where the money is." Candidates go where the money is too. This means going to large corporations and groups with deep pockets. More on this later. But first, some background.
Candidates for office are forced to pursue money in part because of two legal developments. The most recent allows corporations to give almost unlimited amounts to political campaigns. The earlier, and most important, development granted corporations personhood status. GOP presidential candidate Mitt Romney acknowledged this when he shot back at a heckler: "Corporations are people, my friend."
What Romney didn't discuss was how corporations became people. If he had, he would've had to explain how corporate personhood came about.
The key here is an 1886 U.S. Supreme Court decision on taxes, Santa Clara County v. Southern Pacific Railroad Co. While the Supreme Court ruled in the railroad's favor -- arguing corporations are entitled to 14th Amendment protections -- it said nothing about corporate "personhood." A court reporter did.
Specifically, a court reporter -- not a Supreme Court justice -- wrote in the Santa Clara summary head notes that corporations enjoy the same rights as a U.S. citizen. Corporate America has been running with this ruling ever since (yes, I've deliberately oversimplified the primary issues here). And just like that -- and with no birth certificate -- corporations now have the same rights and protections as any U.S. citizen.
Later, the Supreme Court ruled in Buckley v. Valeo (1976) that spending money on elections is a form of constitutionally protected free speech.
This was followed with a 5-4 decision in Citizens United v. Federal Elections Commission (2010), which effectively allows corporations to spend what they want on political campaigns.
The result? Because of the functional equivalent of a typo (1886), corporations are considered people who can speak (1976) as loudly and brashly as they want (2010).
Conversely, citizens in the streets of America are given strict limits (time, place, voice) as to how they can exercise their constitutional rights. And it's distorting our political picture.
If you don't see the picture, here's what's wrong:
Corporations are legal abstracts, created by the state. Per the Enlightenment, constitutional protections were designed for citizens whose rights were historically abused by large corporate entities and the state.
Corporate "personhood" status was a legal accident. No claim to citizen rights should rest on the functional equivalent of a typo.
If we can't yell "fire" in a crowded theater, corporations shouldn't be able to set fire to political campaigns. The Citizens United ruling went too far.
Unlike most citizens, corporations can directly lobby and get favorable legislation, regular bailouts, subsidies, generous tax write-offs, legal exemptions, limited liability, and can live on indefinitely.
Foreign subsidiaries can access Madison Avenue, which can distort and elevate their foreign "voice" above most U.S. citizens.
Corporations find legal cover under proprietary rights (trade secrets) and legal settlements (or fines). This allows corporations to distort and hide their voice.
Our Constitution was created to protect citizens from corporate and state abuses. One way to address the trend of corporate money swamping broader national priorities is to consider what Mr. Moxley has suggested for some time now: "If you can't vote, you can't contribute."
It won't solve all our problems, but it's a start.
Mark A. Martinez, Ph.D., author of "The Myth of the Free Market," is a professor of political science at Cal State Bakersfield.
