Corporations Are People, Too

It's impossible to engage in political debate without encountering someone who feels that corporations are uniquely malevolent or dangerous.

I’d like to note a small irony in last week’s opinion upholding Congress’s decision last year to cut off funding for ACORN, the sprawling, state-funded “social justice” organization that, according to its own internal reports, needs to do a better job stopping its people from embezzling, committing voter registration fraud and violating tax and other federal laws. Representing ACORN in the case were the usual suspects: a left-wing non-profit law firm, several high-powered lawyers appearing pro bono, and, as “friends of the court” (non-litigants), some famous left-liberal law professors.  Among the latter is one Erwin Chemerinsky, a celebrity constitutional law professor at UC Irvine School of Law.

Not too long ago, Chemerinsky was egging on activists incensed that the Supreme Court, in the Citizens United case, thought corporations had free speech rights too.  Here, for example, Chemerinsky was asked:

Doesn’t giving corporations the same Constitutional protections as humans mean we are creating a society which will look more like a corporate utopia since they can outspend individuals in Washington?

And:

I don’t understand why corporations need Free Speech rights in elections if all the human beings which comprise what we call a “corporation” already have full Free Speech protections under the First Amendment.

In response, Chemerinsky questioned whether corporations should have any constitutional rights at all:

Certainly, from the Originalist perspective, corporations would not be protected by the First Amendment or any of the other rights in the Constitution. Yet, a long time ago the Supreme Court went down the path of giving corporations some, although not all, Constitutional rights.

In a later op-ed, Chemerinsky left no doubt where he stood.  The Supreme Court’s holding that corporations have the same rights to spend money on political speech as individuals, he wrote, is right-wing “judicial activism.”

At the same time as Chemerinsky has been inveighing against constitutional rights for corporations, however, he has been assisting ACORN to vindicate its constitutional rights. And who are the plaintiffs in ACORN?  You guess it: three ACORN-affiliated corporations. These three corporations have been arguing in court that by cutting off their funding, Congress passed an unconstitutional “Bill of Attainder,” or punishment of particular individuals by a legislature.  Did Chemerinsky and his allied lawyers in the case dismiss ACORN’s claims as preposterous because, after all, the three corporations are just legal fictions and not real people?  Of course not.  On the contrary, they were all too happy to rely on a Second Circuit precedent holding that the Bill of Attainder Clause protects corporations too. Indeed, as it happens, the Second Circuit Court of Appeals is the only one of thirteen federal appellate courts to have reached this holding.  It is almost certain that, as a matter of litigation strategy, ACORN chose to bring its suit in the Second Circuit for that very reason.

In short, everyone believes in constitutional rights for corporations, at least when it suits his purposes. Even when it doesn’t, everyone should believe in constitutional rights for corporations. It is impossible to be engaged in political debate in the United States without encountering someone who feels strongly that corporations are uniquely malevolent or dangerous.  To be frank (and without denigrating those who have thought about the nature of the corporation with more care), such people seldom have any rational reason to loathe corporations. In the movie Team America, Matt Stone and Trey Parker wonderfully pilloried anti-corporation hostility when they have actor Tim Robbins denounce corporations for sitting “in their corporation buildings” and being “all corporationy.”  An actual reason to hate corporations turns out to be elusive.

After all, a corporation is nothing but a convenient way for individuals to coordinate their activities and achieve some common goals.  Some people, to be sure, can abuse the arrangement, but that’s true of any organization.  And, of course, some people get together to achieve ends that are immoral, but that’s always going to be true.  That they can organize as a corporation (or as a partnership, or limited liability company, or an unincorporated association, or any other kind of entity) does not magically introduce some additional, unique element of evil.

Just ask ACORN.  They organize as a network of corporations because they have found that that’s the best way to achieve their goals of seeking justice for the poor. If Congress singles ACORN out for punishment, they’re not just punishing some fictitious entity with (as Justice Stevens wrote) “no consciences, no beliefs, no feelings, no thoughts, no desires.” They’re punishing real people, just organized in a particular way.

Corporations are people too. Even Erwin Chemerinsky knows that.