Why Do We Think Corportions Are People?

Two sentences have resulted in more damage to American democracy than any other. The sentences are simple, but have had profound effects. Both sentences are false on their face, and yet both have been decreed true by the Supreme Court, and are therefore the law of the land.

One sentence is that a corporation is a person. The other is that money is speech.

The corporation was invented as a legal entity in the 19th century. The original corporations were government-chartered institution meant to effect specific public functions, such as building a bridge. In 1886, Morrison R. Waite, the Chief Justice of the Supreme Court, wrote an opinion that held that under the Fourteenth Amendment, corporations were “persons” having the same rights as human being. We have been living with Waite’s ruling ever since, and even strict constructionists as John Roberts and Antonin Scalia blythly agree without any doubt that this is the case. But it sure seems like a leap to me.

Mitt Romney attracted considerable attention this past week when, while attending the Iowa State Fair, he articulated this fundamental legal building block. Romney explained that one way to fulfill promises on entitlement programs is to “raise taxes on people,” but before he could articulate his position on not raising taxes, a protester in the crowd shouted “Corporations!”, apparently urging Romney to raise taxes on corporations.

“Corporations are people, my friend,” Romney said, provoking some in the crowd to shout “No, they’re not!”

“Of course they are,” Romney said. “Everything corporations earn ultimately goes to people. Where do you think it goes?” Romney seemed shocked that so many people didn’t understand this important legal finding. And it certainly seemed odd to see many pundits believing that this was a kind of gaffe on his part, to repeat this fundamental principle that so fw people understand or acknowledge.

Of course, many corporations are not simple people, in any individual rights, We the People, of the people, by the people, for the people sense. Many corporations are super machines for raising and spending money, with vast powers and privileges that dwarf that of most individuals. And most people understand in an obvious, plain as the nose on your face way, that corporations are not people. Governments are not people. Churches are not people. Why the hell are corporations people?

The bizarreness of our willingness to inhabit this legal fiction was made brilliantly clear a few years ago by The Corporation, a documentary written by Joel Bakan, and directed by Mark Achbar and Jennifer Abbott, and/or the companion book subsequently written by Bakan. The Corporation makes the point that corporations are legally required to always act in ways that maximize profits for shareholders, which means that if a corporation is a person, it is a clinical psychopath or sociopath, characterized by extreme self-interest, antisocial tendencies, a lack of empathy, a refusal to accept responsibility for antisocial actions, and an inability to feel remorse. And this behavior is tolerated to an insane degree; corporations routinely break the law, and suffer only fines for their misbehavior, no criminal sanctions. Moreover, any other kind of behavior is criticized. The great capitalist idealogue Milton Friedman called social responsibility programs “hypocritical window-dressing” in an article he wrote for The New York Times Magazine in 1970 titled “The Social Responsibility of Business Is to Increase Its Profits.” Kind of says it all.

The sharpest blow against corporate power would be a constitutional amendment stating unequivocally that corporations are not people and do not have the right to buy elections. Rep. Donna Edwards of Maryland introduced such an amendment last year. “Justice Brandeis got it right,” she said. ” ‘We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both.’ ”

I would just like to see a simple show of hands. How many people agree with Mitt Romney that corporations are people? All the clever guys, like Romney and Roberts and Scalia and other law schools grads would one answer. The rest of us would get another.

[Cross-posted at JamieMalanowski.com]

Jamie Malanowski

Jamie Malanowski is a writer and editor. He has been an editor at Time, Esquire and most recently Playboy, where he was Managing Editor.