Torres-Spelliscy’s Corporate Citizen? An Argument for the Separation of Corporation and State, analyzes the trail of legal cases that led to the 2010 Supreme Court decision in Citizens United, as corporations won rights originally reserved for citizens. Not only are they winning the rights of real persons, but they are avoiding the responsibilities of citizenship… like paying taxes.
Before reading the book, I vaguely knew one of the first key decisions stemmed from the Fourteenth Amendment to the U.S. Constitution, which says,
[n]o state shall… deprive any person of life, liberty or property without due process of law, not deny to any person… the equal protection of the laws.
Known as the Equal Protection Clause, the amendment was meant to secure the rights emancipated slaves. However, Roscoe Conkling argued, based on his role as a congressman in framing the Fourteenth Amendment, that Congress had vacillated between the words “citizen” and “person,” choosing person specifically to include corporations.
This important distinction didn’t appear in the actual opinion rendered in Santa Clara County v. Southern Pacific Rail Road, as I had always assumed, but instead in a head-note about an argument the Court did not wish to hear.
Conkling’s legal practice went so well he turned down two offers of a seat on the Supreme Court. Santa Clara begat Bellotti in 1978, allowing corporations to spend unlimited corporate funds on ballot initiatives, which begat Citizens United in 2010 granting even more expansive rights to corporations.
On the flip-side, Torres-Spelliscy traces how the Comity Clause has evolved to affirm that corporations are not citizens. That distinction may be the lever for a future Court revisiting and overturning Citizens United and Bellotti.
Torres-Spelliscy does an excellent job of tracing the impact of money on politics. Following huge political scandals there is often a push to drive money out through legal statutes, but between those events is a steady drip of corporate challenges through case law winning more and more rights for corporations until we now face a situation where the political has, for all practical purposes, become subordinate to the economic.
We have now reached the point where 158 families, along with the corporations they own or control, contributed $176 million to the first phase of the 2016 Campaign. Yes, reading the book will help you realize it is worse than you thought. [I got my own deep appreciation of corporate power when I found myself writing hundreds of environmental laws in California with the able assistance of corporate lobbyists. That’s when I started this blog.]
Hobby Lobby turned religious rights on it head and appears as the current pinnacle of placing corporate rights above those of people but Torres-Spelliscy also delves into the evolution of reduced responsibilities, such as paying taxes.
“Taxes are what we pay for a civilized society,” as Justice Holmes wrote. Its no wonder some of us feel our country is slipping into barbarism. The book goes on to discuss how up to $240 billion a year is lost to tax coffers, as money is moved internationally.
Thankfully, Torres-Spelliscy not only takes us down the path of incremental legal interpretations that have led to our current nightmare, she also discusses new forms of resistance. Boycotts, phone applications, consumer groups, benefit corporations, and more – all offer some promise.
Torres-Spelliscy makes a large number of recommendations. Here are just a few:
- Regulations: The IRS, the Federal Elections Commission, the Federal Communications Commission the SEC and others could address aspects of dark-money problem, including barring foreign corporations (which needs defined) from spending in U.S. elections.
- Shareholders: Demand corporate transparency about political spending.
- Consumers: Use phone apps to check on their political activities before patronizing corporations.
- Action by voters: Publicly funded election laws and/or severe restrictions on contributions could broaden who officials are accountable to.
What I found most helpful from Torres-Spelliscy was her insight concerning the need for the Supreme Court to look again the its own jurisprudence on the Comity Clause to “bring back a sense of proportion to corporate rights.” After reading the book, I’m convinced one liberal appointment to the Supreme Court could make all the difference with respect to Citizens United and Hobby Lobby. That won’t make real citizens the center American democracy but it would certainly be a start.
My Extra Two Cents
As far as I’m concerned, Torres-Spelliscy is spot on with the following sentence:
A key aspect of why empowering corporations in politics is so problematic is that corporations are not as internally democratic as the democratic political systems they inhabit.
Yes, changes in laws are necessary to incentivize corporations to create less severe negative externalities. However, I would argue internal corporate governance should not be a democratic-free zone.
If there is one weakness in the book, and no book can cover everything, it is too little emphasis on building more democratic governance from the inside of corporations with their own bylaws that cover issues such as majority vote requirements, annual elections for all directors, genuine proxy access, etc.
Democracy shouldn’t just be for government. Other institutions form and shape our citizens. Business has become by far the most powerful institution but the family, church, school, neighborhood, environmental groups and even bowling leagues offer mediating structures between the individual and society. The more we make such structures democratic, the more we empower rule by actual common people.
Ciara Torres-Spelliscy is a Brennan Center Fellow and an Associate Professor of Law at Stetson University College of Law. She is the author of the book, Corporate Citizen? An Argument for the Separation of Corporation and State (Carolina Academic Press 2016) and of Safeguarding Markets from Pernicious Pay to Play: A Model Explaining Why the SEC Regulates Money in Politics. Prior to joining Stetson’s faculty, she was Counsel in the Democracy Program of the Brennan Center for Justice at NYU School of Law. She was an associate at Arnold & Porter LLP and a staffer for Senator Richard Durbin. Professor Torres-Spelliscy has testified before Congress, and has helped draft legislation and Supreme Court briefs. As well as publishing in the Montana Law Review, University of San Francisco Law Review and the NYU Journal of Legislation and Public Policy, and chapters in books, she has been published in the New York Times, New York Law Journal, Boston Review, Business Week, Forbes, The Atlantic, USA Today, The Hill, Huffington Post, Judicature, Salon, and CNN.com. More.
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