The Corporate Person and Democratic Politics

Date01 December 2005
AuthorSteven Gerencser
DOI10.1177/106591290505800410
Published date01 December 2005
Subject MatterArticles
PRQ_Dec05_I
SYMPOSIUM ESSAY
The Corporate Person and Democratic Politics
STEVEN GERENCSER, INDIANA UNIVERSITY SOUTH BEND
This essay considers the political rights of corporations, as vested in their claim to legal personhood, and the
complications such rights present to theories of democracy. While corporate personhood has generated signif-
icant debate in the field of jurisprudence, it has gone largely unnoticed in democratic theory. This article first
highlights significant features in the legal theory and standing of corporate personhood. It then critically con-
siders how well one significant current approach to democratic theory, deliberative democracy, is situated to
handle corporations as entities with political rights. The essay closes by arguing that the collision between legal
practices that recognize political rights of persons that may not be human individuals and political theories
that presume individual human beings as the primary political subjects reveals the need for a broader con-
ception of agency in democratic theory. Such a conception of agency would, by freeing itself of simple assump-
tions of human subjectivity, be more attuned to various types of inequality of power that frustrate democratic
decisionmaking.
The New York Times“OpEd” page on March 13, 2003, This type of paid opinion piece raises a number of interest-
had a familiar look to it, the sort of page layout you
ing topics for the ethics of journalism regarding, for
could encounter on almost any day in the Times.
instance, the appropriateness of placing advocacy advertis-
That day had a column by William Safire complaining about
ing next to editorial content. I pose related but different
the French and one by Bob Herbert bemoaning the plight of
questions. Put bluntly, what is this and by whom? It is not a
the Iraqi children if a war were to come; there was also a
traditional product advertisement: Microsoft is not here
guest commentary by Jim Gogek titled “Taxing the Binge”
telling readers to adopt its new MSN 8. Advertising the
on alcohol consumption taxes and one by Reuel Marc
advantages of its product is what Pacific Life did on the
Gerecht titled “Iran Plays the Waiting Game.” Taking up the
same day on bottom left of the editorial page in the Wall
lower left quarter of the page was one more opinion piece
Street Journal, touting its “commitment to your privacy,”
titled, “Teaming up for Digital Rights,” arguing against the
noting how “we don’t sell information about our clients to
need for the government to take up legislation mandating
anyone,” and so forth.2 Microsoft may be hoping to develop
copy protection hardware and software in DVD players,
its corporate image, but it is not doing it with scenes of hip
recorders, and the like. The author argues that such a “man-
and happy computer users who have switched from Apple
date would be costly and ineffective” and further it “would
or avoided Linux. Rather, if Microsoft is trying to develop
hobble consumers’ lawful use of technology and stifle inno-
and maintain an image, it attempts to do so by taking part
vations.” Citing the progress that various industry groups
in a public discussion about “how best to respond to diffi-
have already achieved, the author praises how “they agreed
cult policy challenges posed by digital piracy,” and offering
that government mandates on how technology must work
its ideas for how “the digital economy can flourish.”3 It is
are not practical and not in the best interests of the con-
attempting to affect policy by providing public reasons for
sumers or businesses.”1 Yet, while this piece looks pretty
its positions to a public whose opinions it cares about;
much like the commentaries around it, this bit of opinion
Microsoft, in the words of Joshua Cohen, “aim[s] to defend
was a paid advertisement containing a commentary whose
and criticize institutions and programs in terms of consid-
author was that great political thinker, Microsoft. This is not
erations others have reason to accept, given the fact of rea-
an unfamiliar feature for the Times OpEd page; some days in
sonable pluralism and the assumption that those others are
that spot there are paid-for commentaries by ExxonMobil,
reasonable” (Cohen 1996: 100). That is, on Cohen’s terms,
other days by TomPaine.Com, the Anti-Defamation League,
Microsoft is deliberating. This essay begins to pursue what
and the Washington Legal Foundation among many others.
it means to say that Microsoft (or ExxonMobil or the Anti-
Defamation League or the Chamber of Commerce or the
NAACP or the NCAA, et al.) is deliberating. Or more gen-
1
erally, it asks what do political theorists or citizens make of
“Teaming Up for Digital Rights,” an advertisement by Microsoft. New
York Times
, 13 March, 2003, section A.
the fact that corporations and associations partake in public
deliberation? And further, how well do contemporary theories
NOTE: I thank Elizabeth Wingrove for her careful reading of this essay
and for her thoughtful guidance of the Symposium. I also thank
Indiana University South Bend for its support of my research
2
through a Summer Faculty Fellowship.
“Our Commitment to Privacy,” an advertisement by Pacific Life. Wall
Street Journal
, 13 March, 2003, Section A.
Political Research Quarterly, Vol. 58, No. 4 (December 2005): pp. 625-635
3 “Teaming up for Digital Rights.”
625

626
POLITICAL RESEARCH QUARTERLY
of deliberative democracy account for corporations and
viduals, but in others it may refer to nations, provinces, busi-
associations as participants in deliberation?
ness firms, churches, teams, and so on” (Rawls 1971b: 244).
Theorists of deliberative democracy have often proposed
Yet while he announces how he will construe the term, he
that their theories are more satisfactory than other theories
pays scant attention to the complications it might cause. A
of democracy that prize participation because they are more
little later in the same work, he argues, “Finally assume these
attentive to the complexity of contemporary society.4 Yet sig-
persons have roughly similar needs, interests, and capacities
nificant practical problems remain that are not mere hurdles
. . . . And suppose they are sufficiently equal in power and
to the ideals of deliberative democracy, but may be seen as
the instruments thereof to guarantee that in normal circum-
fundamental challenges to it. The status of corporations as
stances none is able to dominate” (Rawls, 1971b: 249).
persons with rights of public deliberation is an example of
Though some might object, it is perhaps a reasonable posi-
such a challenge. Does it occur to such theories to imagine
tion, at least hypothetically as for Hobbes, to assume such
corporations as persons? Do such theories simply reject cor-
rough equality among human individuals. However, while
porations and associations as deliberative partners? Can
that might appear to be a reasonable statement, which would
they account for and reckon with them? These are difficult
still generate controversy, I argue that it strains reasonable-
and complex questions and this essay will only introduce
ness to assume that persons as “nations” or “business firms”
some features of them. I intend at least to show significance
have “roughly similar needs, interests, and capacities” or are
of these complexities of the status of the corporation or
“equal in power,” either within that motley collection or
association as a partner in public deliberation and indicate
between any of them and individual humans. Rawls then
why they ought not to be neglected by theories of delibera-
brings up the issue of corporate or collective persons, but
tive democracy.
what are the implications for his theory for either liberty or
This is not to say that the corporate person has been com-
equality when they are included? This theme remains unde-
pletely ignored by democratic theorists. However, the com-
veloped and under-theorized. I suggest that this type of neg-
plexities and confusions surrounding this feature can be seen
lect of corporate persons may reveal a significant limitation
displayed in the work of as important a theorist as John
that democratic and deliberative theories must consider and
Rawls, in the very way in which he uses the word person. In
move beyond with care.6
most cases he uses it in exchange for, or as a synonym with,
Perhaps the easiest thing for the theorist of democracy to
an individual human being. In a typical passage from A
do is simply to write off the corporate person as a potential
Theory of Justice Rawls maintains: “Obviously the purpose of
partner in public deliberation, to say that only embodied,
these conditions is to represent equality between human
individual humans are the persons or citizens who can be
beings as moral persons, as creatures having a conception of
deliberative partners, that when we write and speak of per-
their good and capable of a sense of justice” (1971a: 19).
sons, it is those individual humans we mean. This approach
Here, then, Rawls offers the idea of person as natural, indi-
is tempting, but to follow it runs several risks. First, it
vidual human being. Yet he complicates this later in the same
rejects the practical fact that currently corporations do have
work, suggesting that persons in the original position repre-
legal, constitutional rights of public deliberation (at least, in
sent collectivities, “The parties [in the original position] are
the USA). While it is always possible to wish away features
thought of as...

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