Friday, April 13, 2012

Speechless: Why Citizens United and Its Critics Are Both Wrong

[Author's Note: I wrote this essay a while ago, and I had hoped to actually publish it somewhere so that it could reach a wider audience, because I think this angle on the question of corporate personhood is important. But I now believe I'm unlikely to find a market for it, because it's too lengthy and rigidly philosophical to have a place in any popular magazine, but too brief, playful and topical to have a place in a philosophical journal, which I have no access to anyway. So I'm just putting it out as a blog post, instead, and hoping for the best. Fair warning: at five thousand words, it's longer (and perhaps drier) than blogs are supposed to be.]

Ever since Mitt Romney made the comment “Corporations are people, my friend,” to an irate audience member at the Iowa State Fair, I’ve found that the phrase has become something of a meme, with liberal media personalities and bloggers repeating it ironically as a way of defining the modern zeitgeist with respect to money in politics. That’s perfectly understandable, because the idea of ascribing humanity to corporate entities is intuitively troubling. The problem with the satirical use of the sentiment by some liberals, though, is that they all seem to be relying on their audience’s perception of the statement “corporations are people” as self-evidently absurd. Nobody that I know of has made a serious effort to explain exactly why the statement is false and what definition of “person” proves it.

It has been two years since the ruling in Citizens United vs. the Federal Elections Commission held that corporate funding of political campaigns qualified as protected speech. Since that time, the culture of corporate influence has produced a lot of revulsion and righteous indignation, but not a lot of systematic thought. The arguments against the personhood of corporate entities are usually emotional, knee-jerk reactions that really wouldn’t be effective with people who aren’t already ideologically committed to that same point of view.

Not making a solid argument is understandable if the criticism is framed by satire and one’s goal is to brightly highlight the absurdity of a situation. So I am more forgiving of Stephen Colbert, who had this to say on a broadcast last October when discussing the signs at the Occupy Wall Street protests, which declared that corporations are not people

“I thought we were past the point in this country where some people aren’t people just because they have different color skin, or different religion, or were born in a lawyer’s office, only exist on paper, have no soul, and can never die.”

But I find that after a bit of thought even that commentary appeals to unhelpfully emotional sentiments. The same is true in a more damning way of other attempted refutations of the personhood of corporations, which emphasize all the obvious things that are not shared in common between corporations and people as we intuitively understand them. Corporations, they say, are clearly not people because they don’t need air or water or food, because they don’t experience emotion, and so on.

None of this strikes me as sufficient cause to deny them free speech rights. At base, that is what’s behind the defense of corporate personhood. Someone on that side of the argument would presumably emphasize the idea that by virtue of their recognized legal personhood, corporations deserve all the same rights that people do. And as far as I’m concerned, the above-mentioned features of corporations are not sufficient grounds to refuse any rights to such an entity.

There is a further sentiment implicit in liberal emphasis on the obvious differences between corporations and organic human beings. I expect that a lot of people in my political camp are averse to corporate personhood because they know that corporate interests often don’t align with human interests. By virtue of not needing air, water, or food, they will not be motivated in any direct way toward the preservation of breathable air, clean water, and overall food security. I think that a lot of my fellow liberals feel that it’s right to resist the concept of corporate free speech because non-human entities contributing to the political process would mean powerful voices competing with the interests of persons who are fully-fledged and unmistakably human. Unfortunately, this protectionist thinking can have no place in the law, or even in political ethics. No reasonable liberal would find any semblance of moral justification for restricting the free speech rights of their political opponents, even those who are deeply confused about humanity’s shared self-interest. Why is it more justifiable when we are dealing with corporations, other than because it just feels that way?

Since I’m writing this from the left, but am thus far criticizing the views found on the same side, the natural question at this point is, so why aren’t corporations people, then? Well, the truth is that in my opinion they are. There is no justification for restricting the free speech rights even of persons who are only persons in a legal sense. That said, I vehemently disagree with the Citizens United ruling. I just think that the arguments against it have been misguided and the language used in its favor misleading. Its defenders misunderstand the situation. Its opponents are leveling their criticisms against the wrong elements of the problem, but they have the right idea. Before getting to what the correct attack would be, it’s important to understand just why the aforementioned arguments are so flawed.

So corporations don’t need to breathe the air. Well, so what? Sure, people do need air, but that is not part of what makes them people. Imagine that we found out that mermen exist and that they live in American waters. Assuming that they look and behaving roughly like human beings save for flippers and gills and all the lifestyle differences that come with them, it would be tough to say that they didn’t count as people and didn’t deserve free speech simply because they didn’t require air to breathe.

Similarly, what if it turned out that ents existed somewhere in the real world, or that some x-men type of human being had evolved to breathe carbon dioxide instead of oxygen? Their environmental interests would be very different from our own, but there would be no moral justification for saying that they should not be allowed to freely assemble, or express their opinions, including by financing ads for political candidates who would not only resist carbon regulations, but make damned sure that vast amounts of the stuff were poured into our atmosphere every year.

On the other hand, suppose that some alien species took up residence in the United States, claimed refugee status, passed the citizenship exams en masse, learned to communicate in fluent English, and became productive members of society. Further suppose that they breathed oxygen like us, but obtained all their physiological needs through air and food, and had no need of water. Would that sole significant difference mean that we ought to revoke their citizenship, deny personhood, and afford them none of the rights of Americans?

Looking at a different science fiction scenario, and one that is probably far more likely to come true someday, imagine that we gave rise to genuine, freely-thinking artificial intelligence. Unless we designed their hardware in an awfully peculiar way, they would presumably need neither air nor water. They would also not eat, and we might be well-served to assume that they would run on fossil fuels, in which case it would be in their interest to support political initiatives that made energy security a top priority, unmitigated by impacts on carbon emissions, risks of water pollution, or encroachments on agriculture. These beings would seem very different from what we traditionally recognize as people, and the given list of attributes begins to align awfully closely with the decidedly non-human traits of corporations. Still, would the fact that robot physiology places such wildly different demands on them disqualify them for personhood, considering that they have intelligence just like that of human beings?

The question of artificial intelligence addresses the weakness of most of the intuitive differences between corporations and people. A synthetic person also might not die in the sense that real human beings do. Something mechanical can usually continue working as long as it enjoys routine maintenance and a constant supply of energy. In the theoretical scenario, this doesn’t even need to refer to human-designed artificial intelligence. What if a person’s actual, organic brain was implanted in a mechanical body and was able to continue functioning for as long as that body remained in working order? If we used this method to systematically alter the physiology and longevity of most of the people in America, would we also have to go about systematically stripping ourselves of first amendment rights?

Death for corporations is much the same as death for hypothetical synthetic people. Contrary to the comments of some liberal critics, corporations can die, after a fashion. They can die in much the same way that an artificial intelligence or synthetic body can die – by running out of their source of energy, which in the case of corporations is money. Naturally, a corporation’s self-interest would consist of maximizing its own profits, just as a robot’s self-interest would consist of maximizing its access to electrical energy. For synthetic persons this might be served by either expansion of fossil fuel production or by upgrades to green technology. For corporate, legal persons their interests might be served by any number of business practices or legislative changes.

Different minorities have different interests, and different interests have different potential means of being either supported or undercut by government and society. Respect for the competition amongst these various points of view is the very essence of democracy. The addition to corporate voices to this contest may add to the clamor, but if having different needs means having different rights, what’s to stop those rights from being kept not just from non-human entities but also from entities that are plainly people and thus ought to possess natural, inalienable rights? If we value our democracy, we should acknowledge that even being non-human would not be a barrier to participation in this competition of interests, so long as you have a way of expressing your desires and political preferences. From a political, legal, and even moral standpoint, personhood should not presuppose being human. So how are corporations different? It’s an important question, because I promise you they are different.

What of being born in a lawyer’s office? That seems to carry more weight than the lack of physical needs and temporal limits. Well, first of all, if that’s taken literally, then any completely human child who happened to be delivered in a lawyer’s office would be born devoid of first amendment rights. But we’ll take it for granted that the objection means actually being brought into existence by legal action.

Again, think about the possible creation of artificial intelligence. Considering the struggles for legal rights that have been faced by women, African Americans, and homosexuals, I have no doubt that there would be a long period of political contention before A.I. gained acceptance as societally recognized persons. But I would hope that the vast majority of liberals would be on the side of inclusion, and that only stilted conservative thinking would lead a person to staunchly resist accepting a new category of person into the fullness of American society. And if what strikes me as the liberal point of view in that scenario gained prominence, the personhood of the first thinking robot would have to be created in a lawyer’s office or on the floor of Congress. Prior to that, it would legally only be a collection of circuits and manufactured materials, not a person. As far as its rights are concerned, the person would be created by legal action.

We don’t need to remain so hypothetical in order to illustrate the point. The 1857 Dred Scott decision illustrated that it could be decided in a courtroom that a human being was not a citizen, and that he was indeed recognized as property. The emancipation proclamation effectively erased this view in most of the country via executive order. Obviously, no action by government or legal entities is capable of impacting whether or not someone is a person in fact, but what is of issue here is whether one is a person under the law, and therefore protected by first amendment rights. It is very much within the power of lawyers, courts, and politicians to decide this, and there is sufficient precedent for it in American history, with its several instances of minorities being denied some or all of the rights of citizens.

Personhood refers to something much greater than citizenship, but it also means something much different from “intuitively human.” Given the above hypotheticals, I would say that personhood in a legal sense, including in the sense of having first amendment rights, is much closer to citizenship than it is to humanity. While it is not typical for legal documents to declare individuals to be people, that or something close to it is sometimes their effect. In a sense, aren’t American persons regularly born in bureaucrat’s offices, insofar as the acquisition of American citizenship provides a person with new rights and responsibilities and a new treatment under the law?

Intuitively, declaring a non-human entity to be a person seems indisputably different, but there is a great deal of vagueness in the law, and this must be dealt with logically and not via intuition. The rational fact of the matter is that corporations are legal persons. This is very well established. You can object to this aspect of the law and you can insist that it be overturned, but you can’t dispute the fact that it presently exists. It is by virtue of being persons that corporations are able to enter into contracts, to sue and be sued, and as of 2010 to express support for political candidates through unlimited campaign spending.

The last of these may be objectionable to some people, but if their solution to the problem is to strip corporations of legal personhood, we lose the essential basis for binding them to legal agreements and prosecuting them for criminal activity. If that turns out to be similarly objectionable, then what rationale do opponents of corporate personhood have for limiting the rights of corporations but maintaining their responsibilities? It seems that they must be calling for two distinct classes of person: legal and natural persons. But if that came to be considered the new legal standard, I would be genuinely concerned that it could set a dangerous precedent.

Granted, none of my hypotheticals involving mutants, mermen, space aliens, and sentient robots are likely to come before an actual court of law anytime soon, but that does not mean that the questions they raise aren’t legitimate and don’t need to be resolved. The principal question is what criteria must be met for a person to be classed as merely “legal” rather than “natural.” Specifically, of the easily observable differences between human beings and corporations, which and how many of them does it take to justify denying an entity the rights of a natural person? If it doesn’t eat, breathe, or die naturally, is that sufficient cause? If we were to strip a human being of the typical features of humanity one-by-one, and if we were to add those features one-by-one to something inanimate or corporate, would we be able to identify the point at which one became and one ceased to be a natural person?

No doubt some people will remain committed to solving the paradox intuitively. Most of us probably believe quite strongly that we don’t need to outline criteria to determine what a person is. On the face of it, it seems exceptionally easy to tell that a corporation just isn’t that, even if it’s difficult to identify precisely why. So one might be tempted to defer to somewhat esoteric concepts and, returning to Stephen Colbert’s comment, say that corporations cannot be people because they don’t have souls.

Obviously, though, that can’t have any bearing on the law. It may very well be a tremendous difference between corporations and people, but it may also be a fantasy. It’s impossible to say with certainty whether souls exist at all, and the law cannot make its judgments on the basis of anything so speculative. It also leaves us at risk from the same kind of slippery slope that comes of not knowing how many characteristics of corporations it takes to deny personhood to something. If intuition guides the first judgment, what is to prevent someone from arguing from intuition that while people on the whole have souls, certain kinds of human beings do not?

Then again, maybe when someone uses the term “soul” in this context, they mean it in a metaphorical sense. Perhaps it is only a simple way of identifying an entity that is capable of experiencing conscious thought and emotions like love and sadness. That is a rather more concrete concept. The actual notion of a soul remains pretty tough to pin down, but at least some of its attributes can be objectively identified. But all the old problems then remain intact, since it’s quite easy to imagine a human being existing who, whether because of brain abnormalities or some extreme stoicism, does not experience emotion. Also, I know I am not the only one who has wondered whether the brain activity of everyone around me rises to the level of conscious thought. Does missing one capability or the other deprive an individual of a claim to personhood?

Thus, even modestly esoteric concepts don’t lessen the difficulty. I expect that an opponent of corporate personhood would wonder at this point whether there is some obvious, concrete, and objective characteristic of corporations that prevents them from being able to be classed as persons and thus from having first amendment rights. The only such feature that I know has been raised, and that I haven’t yet addressed directly, is corporations’ physical composition, or lack thereof. And again, this returns to satirical rundown of the non-human features of corporations offered by Colbert.

The statement that corporations only exist on paper is probably the most compelling statement against their personhood, but it’s not strictly true. Corporations do exist physically, albeit in a diffuse way. They are made up of an array of buildings that are located on and off of American soil, as well as all of the people who work within them. The corporate person is housed within those structures, just as many human beings would claim that their own personhood is housed within but not identical to the structure of their bodies. Our bodies are uniform and anchored within one physical location at any given time, but surely that doesn’t have anything to do with deciding our personhood.

If some mad science allowed a person to be deconstructed, with each limb kept alive and connected to a radio receiver in communication with the brain, a newly diffused physical makeup wouldn’t make the person cease to be a person, so long as all the separate parts were still governed together and functioned towards the same ends. It wouldn’t matter if each arm and each leg were sent off to separate continents; personhood doesn’t really have anything to do with physical construction. A deconstructed person should still expect the full rights of a person, including rights to express political preferences through campaign spending. And such a person would be fully capable of utilizing those rights, even if its oral speech came from a head in Milwaukee while its letters came from an arm in Madrid.

But this analogy fits with the situation of corporate persons in only one respect, and it is with that observation that I finally get to my account of why Citizens United is indeed wrong. Illustrating it will require one final analogy, because corporations are not like deconstructed people. They did not start as a unified whole and split into component parts, but were constructed from initially separate entities. And what’s more, those entities remained significantly separate even after being tied together under a shared name and corporate identity.

The corporation is more like a group of several complete, fully-functioning people who have been tasked with the role of operating a giant mechanical creature. One person inhabits each limb, perhaps one operates a mechanical heart or other synthetic organ, and one person or a committee of individuals resides in the head and directs operations of all of the other components of the robot. Perhaps the robot can sign agreements with other robots and with comparatively tiny people. Perhaps it can be the subject of legal action. But since people must actively control the object in everything it does, what it cannot do is act autonomously. Someone else must direct it to sign documents and to take legal action. And it is well that they do so, because no one else can enter into those agreements on its behalf, and yet all of those who make up the creature absorb some of the consequences of its legal obligations.

The people in the head of the mechanical creature can determine what is in its interest and direct it to act in accordance with those determinations, but they cannot claim to give voice to its opinions, because when everybody steps out of the thing, it’s still an inanimate object and can’t form opinions. Everything that it does is in accordance with the views of the people in its head, and they are perfectly capable of leaving the mechanical creature and expressing their own opinions by whatever means are available to private citizens.

Essentially, what the Citizens United ruling has done is declare that while everyone who operates that creature can continue to vote for and fund whichever political candidates and causes they wish, they can now direct the giant robot to crush any politician who opposes those favored by the people sitting in its head.

I know this will seem like pure rhetoric, but I believe that my particular opposition to the Citizens United ruling constitutes the view that most respects the independent personhood of corporations. I’m not bothered so much by the enormous power that they possess as I am by the fact that something so powerful is being used as a pawn for someone else’s ends. If corporations were capable of thinking independently and expressing their own opinions, then, God help us all, I would accept that they have every right to lift candidates up upon enormous piles of cash and try to carry them to the Congress or the White House. CEOs are free to support campaigns with their own private wealth. The difference between them and the corporations that they run is not that the CEOs are people; it’s that they have voices. Corporations, on the other hand, cannot speak.

The reason that Citizens United is wrong is not that it allows for corporate free speech rights, but that it allows for individual free speech rights to utilize corporate resources. The very word “corporate” means “united into one,” so if taken at face value, that suggests that corporate free speech means that multiple individuals are united into one voice. But we already had such unity before the Citizens United ruling was handed down: it was called “voting in common.”

When separate individuals vote for the same candidate or proposition, they are not really speaking with a single voice. Our political options may be somewhat limited, but everybody has their own unique motivations for voting for, say, Barack Obama, or Mitt Romney, or Ron Paul. It would be erroneous and terribly glib to say that every person who votes for one of these is necessarily of the same opinions on the issues, or that they are in such lock-step that they may as well be speaking with one voice. But if we claim that corporate entities can speak, we are essentially saying just that. To give them not just personhood but a means of expression is to assert either that they are capable of forming thoughts and opinions independent of the people who make them up, which is absurd, or that all of the people who make them up think and believe and speak in the same way, which is defensible but simply cannot be the case.

The only way that it would be accurate to say that a corporation can speak is if the thoughts, beliefs, and opinions of every person who comprises some aspect of the structure and wealth of the corporation are in agreement with what its CEO or Board of Directors has to say. The range of human opinion is simply too broad for this to be plausible. I have no doubt that if we were to thoroughly survey any corporations recently enshrined with the power of political speech, we would find someone working within it whose choice of political candidates is at odds with that of his company’s leadership. And even if that proved not to be the case, it seems quite impossible that we would be unable to locate anybody who chooses the same candidates, but based on a different rationale than his colleagues or bosses.

The potential for vast differences of opinion is not limited to personal political attitudes, but includes individual perceptions of what is in the interest of the corporation itself. For instance, a certain proportion of employees and executives of a large-scale manufacturer might consider it to be in the company’s interest to oppose environmental regulations and infrastructural upgrades in order to limit overhead in the short-term, while another group sees greater benefit in investing in cleaner technologies for the sake of long-term cost-reduction.

So long as there is some variation in the opinions of people who comprise a single entity, there is insufficient unity within the entity for us to be able to say that it has its own opinion. Thus, it is incapable of political speech. Even if you give your money freely to a corporate entity for the sake of a political cause, the opinion that is expressed with that money is not your own, so your spending can’t be viewed as personal speech. Democracy may work according to majority consensus, but individual expression does not. Everyone’s voice is his own, and only one’s own voice is capable of expressing what he believes. The problem with Citizens United is not simply that it gives voice to corporations, but that it gives voice to only a particular subset of the opinion within any given corporation.

In that way, the ruling is decidedly anti-Democratic. Liberals may be uncomfortable with the notion of vesting rich entities with excessive powers of political persuasion, but it’s counterproductive to focus their objections on the unfair effects of that power when the real problem is the unfair co-opting of such an entity’s free speech rights for the expression of someone else’s thoughts.

If a corporation is to be said to speak, it must express the attitudes of every component individual in equal measure, or at least in proportion to his value within the organization. If it fails to do that, it is not expressing the thoughts of the corporation, but rather of some cherry-picked community of individuals within the organization. Again, each one of these already has his own voice and his own free speech rights. If a corporation fails to express the sentiments of every component of itself at once because it cannot do so, then a corporation simply cannot speak for itself. Neither can anyone speak for it, but all must defer to the preexisting capacities for individual speech possessed by the persons who make up the organization.

In the case of such deference, no one has to right to utilize corporate resources to express his own opinion. He already possesses his own resources to use toward that end. To utilize anyone else’s resources to express your opinion without the other person’s consent is to unjustly assert that his interests are absolutely identical to your own and that his voice would never differ from your own. Since a corporation cannot speak, it cannot offer its consent. And it cannot speak because its interests are diffuse and changeable depending on the beliefs of every individual who comprises it. So any assertion of identity between an individual’s interests and a corporation’s is false at worst and unknowable at best.

Corporations are people, my friends. Even as a liberal, I’ll agree to that. And as people, corporations are subject to all the same rights as private citizens, including the right to free speech. But defending one’s right to free speech consists not only of assuring him the ability to express his own thoughts and opinions but also of seeing that no one else puts words in his mouth when he chooses to remain silent. Granted, corporations don’t make that choice, but then they don’t make any choices. They are silent by necessity, being unable to speak.

A man with no capacity for self-expression may still have free speech rights, but his interests aren’t served by arbitrarily assigning another individual to speak for him, to write letters to Congress and sign his name, or to donate his money to political causes. Allowing the leaders of corporations to insert those corporations into the political process is little better than that. It permits individuals and small groups to co-opt the mute voices of powerful entities in order to amplify their own opinions.

Certainly, we should be thankful that corporations cannot speak, because the power that they wield is indeed excessive, but it would be an inconsistent application of democratic principles to deny free speech rights to any person that can form an opinion and express it. Since corporations do not fall into that category, the Citizens United ruling pretends at defending free speech rights when in fact it creates a harmful imbalance in the means by which certain citizens can express their views. It allows the individuals with the most powerful resources to copy their private political objectives onto the even more powerful template of a corporation.

Making entire corporations into mouthpieces for their leaders is not a defense of corporate personhood. That, and not opposition to Citizens United, is the real assault on the concept. If the Supreme Court, Congressional candidates, and the nation’s CEOs believe in corporate personhood, let them stand aside and wait for corporations to think and act autonomously. If they are ever able to do so, I will stand aside and let them dominate our political process. But if they remain incapable of speech, their claim to personhood is in no way supported by insistence on speaking for them.

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