Various thoughts on current events with an emphasis on politics, legal issues, sports, and whatever is on my mind. Emails can be sent to email@example.com; please put "blog comments" in the subject line.
Waite knew that treating corporations as persons under the Fourteenth Amendment did not mean that they would be granted dangerous powers. In the eyes of the law, corporations had long been persons for some purposes and not for others. In the words of the philosopher John Dewey, they are “rights-and-duties-bearing agents.” Unlike, say, a dog or a cat, they can contract and they can act and speak through agents. They can hold property, and they can sue. But also unlike the family pet they can be sued and even prosecuted. And they cannot marry, vote, or run for office. In 1886, Chief Justice Waite’s notion that they were persons under the Fourteenth Amendment did not mean that legislatures would be unable to take into account relevant characteristics of the corporate form, such as its capacity to amass capital and promote certain moneyed interests, when designing regulations. That only came later.
For instance, during the so-called Lochner Era, the USSC upheld a law requiring corporations (including education corporations) to segregate. The same would not apply to requiring a private group to segregate, which that would be less open to such regulation as compared to a corporation. Citizens United concerns where to draw a line in respect to the First Amendment, but no justice there thought corporations had no rights in that respect. Similarly, probably no justice thought corporations had a right to be treated just like human persons in all respects.
This sort of thing troubles me since it is important to know the facts to properly respond to deal with the problems of corporate power. In fact, various experts in this area cite history to show that it is traditional to regulate corporations to deal with the specific evils of that business form. Corporations are not things that were invented by evil capitalists in the late 19th Century. It was a useful legal form in place for centuries in some fashion. This provided them with some rights. But, also limits. Citizens United does not change this and putting aside that the law in question only this just so much, the horror stories of how democracy is dead now pursuant to the ruling is woefully overblown.
Up with Chris Hayes [see also, his blog for more material] had some interesting stuff about employers getting their employees involved in political campaigns. The Margaret Cho look like legal expert he had noted that it would be a bad idea to just ban all political speech in the workplace. For instance, though I can see the need for some sort of disclaimer, having the Koch Brothers send employees a letter endorsing a candidate to me is not something to be horrified about. The vote is secret. They won't know who their employees vote for. Merely letting employers express political views, including some that might be liberal leaning, is something that we should allow. After all, the Koch Brothers as individuals can surely do something of this sort.
Required involvement of employees in actual political events is more problematic as is suggestions that their (employees) political activities will get them in trouble. A case where the problem might have been that the business itself was in a picture endorsing a political candidate or cause is something of a borderline case. The expert noted that current laws seem to allow (though perhaps not for every state) you to be fired for supporting certain candidates, putting aside special cases such as the secretary for the local Republican campaign office. That sort of thing is what we should worry about. We need to pick the right battles.
Back to the beginning. The corporate form is an ancient legal invention that is in place to provide certain privileges to artificial persons but not to the level of an actual human person. This allows the state, when incorporating them, to set forth certain limits. This to me would include being non-ideological to the extent that the actual employees are not required to take part in political activities or burdened for doing so. OTOH, corporations merely expressing support of candidates is different. Note that even Chris Hayes realized the complications, even when some of what is allowed had a dark side. But, that is true of many 1A things.
Serious problems here and misguided myth or cant won't stop them. Cleaning up the mess is messy.