Why personhood matters.

AuthorPiety, Tamara R.
PositionSymposium: Money, Politics, Corporations and the Constitution

No aspect of the infamous (1) Citizens United (2) decision has galvanized public opinion as much as the perception that in this case the Supreme Court held that corporations are entitled to the same rights as human beings. (3) If the rallying cry of Citizens United's supporters is "Corporations are people, my friend," (4) that of the opposition is "Free speech is for people." (5) Yet many knowledgeable commenters, including many legal scholars, (6) tell us that this public perception is mistaken. Corporate personhood is not the problem, they say. Nothing turns on the legal fiction of corporate personhood. So efforts to amend the Constitution, or to otherwise "overturn" Citizens United are misguided, even mischievous, because the personhood fiction is a "useful fiction," (7) one necessary to accomplish all sorts of worthy objectives, (8) objectives which would be undermined if we did away with corporate personhood. (9)

In this Essay I want to reject the suggestion that personhood is not important. Although it is true that corporate personhood has been around long before Citizens United, (10) the public's perception that the Court did something important with the concept is correct and we are continuing to see the consequences of that interpretation unfold in cases like Hobby Lobby. What the Court did was to cast the corporation into the role of a "disfavored" speaker. It suggested that the campaign finance limitations were discriminatory because they only applied to corporations and that such "discrimination" was unconstitutional. This rhetorical move has been repeated in subsequent cases substituting "marketing" (11) for "corporation" and "free exercise of religion" (12) for "freedom of expression." (13) This framing exploits our tendency to condemn discrimination between persons in order to make these controversial decisions seem self-evidently correct and neutral. (14) The personhood metaphor distracts from the underlying, theoretical vacuum. The Court has never said that corporations enjoy all of the same rights as persons. (15) But it hasn't offered much explanation for the distinctions. As many scholars have observed the Supreme Court has failed to articulate a theory for corporate rights, relying instead on what could (at best) be described as "case-by-case adjudication" (16) and (at worst) as something less charitable. (17) What we have instead of a rationale is an ipse dixit. "[R]emarkably, the Court has never offered a sustained argument as to why corporations merit constitutional rights.... strictly speaking, the question has never been decided but merely presumed decided." (18) There is a blank spot where a rationale should be.

It is worth contemplating this empty spot. Although we condemn discrimination between persons as invidious, there is a sense that we do so based upon a recognition of our shared humanity and that human beings exist whether the law recognizes them or not, but that for law to have a claim to moral legitimacy it must recognize them. (19) However, there is no such prior existence of corporations. A corporation is a legal fiction. It has the attributes the law gives it, no more, no less. (20) There does not seem to be any good reason that the entity, as such, needs protection for freedom of expression or freedom to exercise a religion. Nor does it seem that there should be any philosophical, moral or political necessity for a commitment to the equal treatment of all fictional entities. Quite the reverse; such a commitment would make it more difficult to tax various entities differently or to regulate some industries more heavily than others. (21) This is the sort of regulation that the end of the Lochner era appeared to settle. (22)

Yet hostility to such distinctions is what Citizens United and its progeny reflect. This hostility seems based on eliding the moral statuses of the juridical versus the human "person" and that elision facilitates a broadly deregulatory agenda, (23) one that lays the foundation for attacking securities laws, labeling and disclosure laws, licensing laws, pharmaceutical marketing regulation, truth-in-lending laws, and countless others. (24)

This effect is reflected in some of the arguments made in the trial courts and the decisions emerging from them. Challenges to all manner of regulations, from a law requiring a license for dealers in precious metals, (25) to the FDA's new graphic warning labels on cigarettes, (26) from whether an employer has to post notices concerning what the law is regarding a union, (27) to whether country-of-origin labeling regulations are constitutional, (28) and from a law setting a minimum wage, (29) to a proposal for a law providing that only "environmentally responsible" companies receive special tax treatment. (30) In short, there is almost no case that can't, with creative lawyering, be turned into a First Amendment case and many of these cases depend upon some version of the equal protection argument. (31) Plaintiffs have won some and lost some, but the Supreme Court's continued adherence to this interpretive strategy suggests that, for the foreseeable future, businesses will win more than they lose because the personhood metaphor seems to compel courts to reject "discrimination" against corporations.

Personhood matters. (32) It "tilts" the outcomes. (33) Part I of this Essay reviews the arguments offered for why we shouldn't care about corporate personhood and finds them unconvincing. Part II then focuses on why the personhood metaphor does matter. The chorus of voices insisting that personhood doesn't matter is bit like the Wizard of Oz: "Pay no attention to the man behind the curtain!" Dorothy is told. But it is only by looking behind the curtain that we can see the levers in action.

  1. PAY NO ATTENTION TO CORPORATE PERSONHOOD

    1. "Everybody Knows Corporations Aren't People!"

      The first line of attack on the significance of corporate personhood is a dismissive reassurance that the public is wrong in thinking that in Citizens United the Supreme Court granted corporations the same First Amendment rights as human beings. I encountered this reaction first hand.

      In 2014, at the University of Tulsa, I had the pleasure of participating in a Federalist Society debate about corporate personhood. There, Ilya Shapiro of the Cato Institute told the assembled students that "of course" everyone knows that corporations are "not real people!" His tone implied that all of this uproar about corporate personhood is a tempest in a teapot. This talk echoed the same point he had made in an earlier article: "It is a misconception that the concept of 'corporate personhood' has played a central role in shaping corporate speech rights in American jurisprudence. No court has ever said that corporations are 'real' (34) people." (35)

      Many legal academics identified as conservatives (36) have similarly weighed in to assure us that the corporate personhood issue is simply no problem at all. Eric Posner tell us to "stop fussing over personhood" (37) and Steven Bainbridge describes the campaign against corporate personhood as "moronic." (38) They suggest that the public's impression that personhood was an important feature of Citizens United simply reflects a lack of legal sophistication. (39)

      But this attitude is not confined to conservatives. Many identified with the left also take (or have taken) (40) this position. Thus, Garrett Epps tells us not to "blame" corporate personhood for the outcome in Citizens United (41) and Kent Greenfield, a participant in this symposium, argues that corporate personhood is a "red herring" which obscures more important issues. (42) Indeed, Greenfield believes progressives (43) should embrace corporate personhood as a path toward corporate social responsibility. (44) The overall message is that those who think corporate personhood is a significant issue either lack legal training or are unsophisticated, "naive metaphysicians." (45)

      If, as Shapiro argues, "everyone" knows that corporations should not have the same rights as natural persons, it is not clear who he means by that "everyone." Many legal academics do seem to believe that in Citizens United the Court did something very like treating corporations as if they were entitled to all the rights of natural persons. (46)

      Certainly, many corporate litigants have enthusiastically pressed the claim that corporations ought to have the same rights as human beings. (47) They have not always been successful, but the arguments have been made. Some legal academics have likewise argued that corporations should receive the same First Amendment protection as natural persons. (48) Professor Michael Kagan has argued that Citizens United and its progeny opened up a new "speaker discrimination" jurisprudence. (49) And obviously the general public is clearly not a part of this "everyone" who knows that legal personhood does not mean equal treatment with human beings. Rather, as discussed above, personhood seems to be precisely what has galvanized public opposition to the case.

      It is true, however, that the Supreme Court continues to adhere to the proposition that corporations do not have the full panoply of rights that natural persons do; (50) but, as will be discussed further below, the case law does not inspire confidence about how the Court will rule on any particular question in the future.

    2. "... A USEFUL FICTION ..."

      Somewhat paradoxically, many of those who argue that corporate personhood is "just" a fiction and therefore we shouldn't get too worked up about it, nevertheless also argue that corporate personhood is critical to the proper functioning of the legal system and to the economy. Doing away with this fiction through a constitutional amendment, such as that proposed by Free Speech for People (51) or Move to Amend, (52) would, they warn darkly, wreak havoc with corporate law and on civil society.

      For example, Professor Bainbridge notes that "[although the...

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