Clippings: Me, you and Berkshire Hathaway
It really bothered me a few years ago when the Supreme Court declared that corporations are people. It just seemed like Chief Justice John Roberts and the Republican majority on the court (and make no mistake, these five men carry the water for the GOP that put them in power) simply were twisting the rules again to favor their team. How did I know that corporate personhood would favor the Republicans? Because the Republican majority on the Supreme Court backed it, therefore it must be pro-GOP. How’s that for circular liberal logic?
Also, it just didn’t seem right to equate a corporation — a creation of the human mind that exists only on paper and in the bureaucratic imagination — with a human being. We humans live and breathe, we think and argue, we feel pain and love and anger and compassion. We embody illogical contradictions in such beautifully idiosyncratic ways that we can evoke ardent passion among our fellow human beings.
Corporations? Pretty dry, really. I’ve never met a boring old fart as boring as the most dynamic corporation. Here’s a test: Which words raise a stronger reaction when you read them — Taylor Swift or Berkshire Hathaway? Barack Obama or Express Scripts Holdings? Your mother or AmerisourceBergen? I’m quite certain that in each case the real human being elicited a stronger reaction than the Fortune 50 corporation (at least for 95 percent of you — but that’s what makes people so great, there are 5 percent of us who are so different that we actually think a diversified holding company is more exciting than the hottest pop star of the day; I love people!).
Now imagine my surprise when I heard this dyed-in-the-wool progressive, son of a miner, financial supporter of Sen. Elizabeth Warren, college professor! making an argument for MORE corporate personhood, not less. His name is Kent Greenfield, he’s a professor of constitutional law at Boston College, and he wrote a piece in Washington Monthly magazine that is unabashedly in favor of making corporations more like people in a legal sense.
Here’s a very brief synopsis of his argument. First, the concept of corporate personhood is just the idea that a corporation has a legal identity separate from the human beings who are its shareholders. Among other things, this allows individuals to invest their capital in a corporation without being personally liable for the debts of the corporation; without this separateness fewer people would invest in corporations, there would be fewer jobs, fewer innovations and the wealth of the nation would be diminished.
Personhood gives corporations Constitutional rights that sometimes are claimed for the good of society. In 1971, for example, the Supreme Court recognized that The New York Times corporation had the Constitutional First Amendment right to free speech and allowed it to publish the Pentagon Papers, which the Nixon administration didn’t want them to. Corporate personhood gave Planned Parenthood standing in the Supreme Court to argue a case that affirmed the Roe v. Wade decision. Corporate personhood allows Google and other media companies to assert their Fourth Amendment right to be free of unreasonable search and seizure when the federal spooks demand access to the terabytes of user data on their servers.
In a more subtle argument I don’t have space to go into here, Greenfield argues that making corporations more separate from their shareholders by reinforcing their personhood would free corporate managers from the legal obligation to focus all their energies on maximizing shareholder value (the vast majority of shareholders are the wealthiest echelons of American society) and enable them to take some steps that would provide more benefit to employees (the rest of us), customers and society in general.
Greenfield last year was part of a group of law professors who argued that the Supreme Court needed to give the Hobby Lobby corporation more standing as a person separate from its shareholders, not less. In the celebrated case, the shareholders of the privately held corporation argued that they should not be forced to comply with the Affordable Care Act because some of the provisions regarding reproductive health offended their religious sensibilities. Greenfield et al. argued that since the shareholders sought the legal protections afforded by setting up the corporation as an entity separate from themselves, they must also separate their personal religious convictions from the distinct corporation of which they were shareholders.
So what did the five bought men on the Supreme Court do? This time they rejected the argument of corporate personhood and instead sided with the shareholders of Hobby Lobby and ruled that their corporation, no matter how distinct in other ways, could reflect their religious beliefs in this instance. Good grief. Makes me think that maybe corporate personhood is not the problem, perhaps it is simply the honesty of the Supreme Court justices that is the real problem.
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