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September 02, 2014 3:10 PM What If Corporations Really Were Persons…The View Back from 2021

By Barry Mitnick

Corporations are people.

In Citizens United v. Federal Election Commission (2010), Justice Anthony M. Kennedy wrote, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” Corporations are “associations of citizens;” hence they are “people.” Thus, when contributing to political campaigns, corporations as people are engaging in political speech, and are therefore protected by the First Amendment. Congress cannot fine or jail corporations just for making campaign contributions, because that is protected speech.

But if corporations have the Constitutional right of freedom of speech, then such corporate persons must also have all the other Constitutional rights and protections that human persons enjoy. It’s a simple logic; you can’t be a “person” only some of the time.

Thus, just as the rights and protections of human persons extend far beyond the speech provision of the First Amendment to the U.S. Constitution, so must those of corporate persons — right through the whole document, from the first ten amendments - the Bill of Rights - through every other amendment, and through the Constitution itself.

And, ever since that historic moment in 2010, up to and including today, Inauguration Day, January 20, 2021, we have reveled in how the basic freedoms of such ordinary “people” have expanded!

But achievement of these personal freedoms did not come without cost.

In 2015 the country was thrown into what is now called the Second Great Recession. After Citizens United, all corporate speech - including confidential information that would allow favored investors to anticipate stock price movements, was now protected.

An accidental leak of a broker’s email revealed that private communications regarding true corporate performance were at odds with the public announcements tracked by the Wall Street investment community.

It was fraud, and it was everywhere. The Securities and Exchange Commission (SEC) and the Department of Justice intervened quickly. Although the communications that produced “insider trading” were now legal, other effects of such actions - such as conspiracy to defraud investors — were not. But it was too late. The credit markets froze. How could anyone believe what CEOs claimed publicly about the performance of their companies?

By coincidence, that same week the Food and Drug Administration (FDA) revealed that Merck, Johnson & Johnson, Pfizer, and other large pharmaceuticals had falsified the listing of side effects for some of their best-selling proprietary drugs, omitting some rare but devastating side effects. Product information, too, was corporate speech.

The pharmaceuticals were still required to prove that their drugs were safe and effective under FDA rules, but were no longer required to report the safety characteristics of those drugs completely and accurately to the public. The cost to the firm from the relatively small number of serious adverse incidents was still relatively small compared to sales of the drug.

Drug company shares plummeted. The fall in pharmaceuticals was quickly followed by huge drops in the market caps of all the big processed food manufacturers.

Consumers realized that product ingredient and health labels might be bogus, and investors dumped shares. The rout then spread to all firms whose business depended importantly on disclosures to customers, investors, and other stakeholders — virtually the entire market. The blows were too much for a market system still stressed from the First Great Recession.

But there were also some early beneficiaries of the new freedom of corporate speech. What readers of the 2010 Citizens United decision did not realize at the time is that the First Amendment also protects “the right of the people peaceably to assemble.” And corporations were now “people.” Just as the Court had held, in effect, that money was speech, and speech was constitutionally protected, it now saw the expressive act of assembly as speech.

This completely undercut all antitrust legislation. Companies were free to talk to competitors, i.e., to collude, and to merge their organizations, as much as crowds were free to gather peaceably (or so ruled the Supreme Court).

Within months, Warren Buffett had assembled the four major U.S. railroad systems into the Burlington Northern Trust. Its stock price soared as the huge transportation company set monopoly tariffs.

New light was shed on the Bill of Rights, with new views of the Fourth Amendment — the protection against unreasonable search and seizure; the Fifth Amendment — protection against self-incrimination, i.e., that persons may not be forced to testify against themselves; and the Third Amendment — that requires the “consent of the owner” for the quartering of troops.

The Court used an approach pioneered in its interpretation of the Second Amendment, when it separated that Amendment’s conditional reference to “A well regulated Militia, being necessary to the security of a free State” from the rest of the Amendment — “the right of the people to keep and bear Arms, shall not be infringed.”

The Court did essentially the same with the Third Amendment. The key operative phrase plucked out of the amendment was the requirement of “consent of the owner,” which now included corporate persons. Henceforth, troops of regulators could no longer demand to be quartered among the corporate records without consent.

The effects of the new interpretations were that corporations as persons clearly could not be forced to testify against themselves - i.e., respond to regulators, at least where there might be a criminal case; the information sought by regulators could not searched for and seized; and access could only be by consent. Federal regulation of corporations, so dependent on reporting and inspection, was sharply curtailed.

Perhaps the biggest change of all, of course, was the extension of the vote to corporate persons as citizens under the Fourteenth Amendment. The Fourteenth Amendment guarantees that all citizens, corporate and human alike, enjoy equal protections under the law. And those protections include the right to vote.

Corporations realized that it was far cheaper to realize their rights as citizens and exercise the vote directly, than to continually make contributions that buy access to legislators and influence the election of favored candidates.

Unfortunately, the Twenty-Sixth Amendment (1971) had extended the voting age to 18. Such a voter qualification sharply reduced the number of eligible corporate voters; newly-chartered corporations would be ineligible to vote for 18 years.

The Twenty-Eighth Amendment to the Constitution, approved in 2015 by 40 state legislatures influenced by corporate contributions, removed the 18-year-old age limitation for corporate persons.

Corporations rushed to file incorporation papers for wholly owned entities, creating new voters. So many were filed in Delaware (a favorite for corporate chartering because its laws are protective of management) that a serious proposal was made to move the U.S. Government to Dover.

Legislators elected by corporate voters made huge changes in public programs. Economic regulation that protected industries against new competition and subsidized their production expanded.

The recognition of corporate personhood also affected state government regulations. We are still working out the complexities introduced by legal interpretations that redefined marriage as among a man, a woman, and/or a corporation. Indeed, it gave a new meaning to the phrase, “married to one’s job.”

Corporate boards began to expect a true marriage between the CEO and the corporation. The unfortunate result was that some state attorneys general brought bigamy charges against prominent CEOs. The advent of corporate marriage led directly to challenges in court to tax rates that were typically much higher for corporate persons than for human persons. The US Supreme Court held, unanimously, that the equal protections guaranteed by the Fourteenth Amendment made differential tax rates unconstitutional. Corporations saw their marginal rates fall sharply as the personal tax schedules were applied to them.

As individuals with Constitutional protections, corporations saw the opportunity to take a moral stand on many issues. Among the first to act were firms in the securities industry. The First Amendment mandates that “Congress shall make no law respecting an establishment of religion.” Several Wall Street firms sent top managers to a theological seminary in the Midwest interested in a brand new field, “corporate evangelism.” Through their agents, the firms earned doctorates in divinity. Several changed their names to the familiar ones we now recognize, e.g., Rev. Morgan Stanley, Rev. J.P. Morgan Chase. The firms then convened an ecclesiastical conference and established the famous Church of the Trust, now known commonly as “The Trust.” The firms then declared themselves ministers of The Trust.

On April 15, 2017, Tax Day, the Church of the Trust declared that it and its various locations were henceforth free of taxation and of many other areas of regulation, under their First Amendment rights. Although challenged immediately by taxation and regulatory authorities, the action was later upheld by the Supreme Court. Just last Sunday, Rev. Goldman Sachs gave the sermon, on “The Gospel of Greed,” at Trinity Church in lower Manhattan.

With clerics in such abundance, it became an easy matter to arrange the marriages of CEOs and corporations, not to speak of reserving the chapel and hall. Marital harmony reigned in the firm. CEOs routinely took their spouses with them on business trips, vacations, and to testify before Congress.

The benefits of corporate personhood were especially visible in national defense. Just last year, armies led by General Electric, General Motors, and General Mills, with Special Ops troops from Academi (formerly Xe Services/Blackwater), logistics handled by KBR, and transport managed by Boeing and Lockheed Martin, defeated insurgents who had attacked US corporate interests around the globe. This victory would never have been possible had the Second Amendment right to bear arms not been upheld for all U.S. citizens, including corporate ones.

As everyone knows, the changes that began in 2010 culminated this past year, 2020, with the election of Fortune’s Most Admired Corporation of 2009, 2010, 2011, 2012, 2013, and 2014, Apple Inc., as President of the United States. Its first official act was an initial public offering of the United States, with shares available on iTunes.….

Barry Mitnick is a Professor of Business Administration and of Public and International Affairs at the Katz Graduate School of Business, University of Pittsburgh.

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