Prague -- A corporation speaks by clear-cutting old-growth forests, by dumping pollutants in our communities and denying care for our elders, by off-shoring to avoid paying taxes, and by outsourcing and eliminating jobs. This inanimate Frankenstein constructed by law now enjoys vast legal and constitutional rights which it wields against humans, animals and nature.

The Supreme Court’s 5 to 4 ruling in Citizens United v. FEC giving corporations greater rights to use shareholder money to influence elections is radical, already impacting the November U.S. midterm elections and politics in general. Yet it is only the latest of many expansions of corporate rights over the past 150 years. Let’s step back to consider the most recent fallacy made by the high court in equating corporations with natural persons and citizens.

A widely held criticism of law is that it is a tool used by those with power to serve their ends. Rather than upholding principle, law thus distorts our shared values and common sense by its application of rarified opaque terminology and legalistic logic, rooted in arcane precedent and procedure, which drives outcomes which often defy what makes good sense. That is an easy attack to make in this case.

The five natural persons who made this ruling, and in so doing exposed their judicial and doctrinal hypocrisy, profess to be concerned with protecting political speech and thus serving the values embodied in the First Amendment by promoting free speech. But it is evident that a corporation cannot think; and so it cannot speak.

Speech requires thought. Even when a baby gurgles and coos its speech emanates from its senses (hungry, excited, colicky). Speech then evolves into expression reflecting cognition. We think and reflect before speaking when we care what we say. Political speech demands thought and reflection. Again, a Corporation cannot think; and so cannot speak. It can, however, use money to drown out voices which stand in the way of its profits. It can make a democracy a plutocracy.

A corporation is an empty shell. It is nothing more than papers filed with the state for the purpose of letting entrepreneurs conduct business with limited liability, and the prospect of unlimited profit. A corporation has perpetual existence. Natural people die. A corporation is a legal fiction, which if hypothesized as a real person would be diagnosed as psychopathic. The English jurist and statesman Lord Edward Thurlow asked, “Did you ever expect a Corporation to have a conscience, when it has no soul to be damned, and no body to be kicked?”

Will this twisted ruling further transform American society from the ideal of one person one vote toward the practice of one dollar one vote? An outrage of this magnitude must not be met with meekness. Corporations exist to enable real people to evade responsibility for their actions. Accountability and citizenship are irreconcilable with today’s corporation. Our Frankenstein can only be stopped on its destructive path by taking away its privileged status.

William A. Cohn, a constitutional law scholar, is lecturer at the University of New York in Prague (www.unyp.cz) where he teaches courses on law, ethics and logic

 

Feb. 18, 2010

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