You may not have noticed, but Sept. 17 is the 223rd anniversary of the signing of the United States Constitution. As far as I can tell, no celebrations are planned locally.
Even the League of Women Voters, as observant a band of patriots as you’re likely to find, chose to avoid entanglement with the weekend by holding its Constitution Day colloquy prematurely, on Wednesday.
I joined a roomful of good citizens in the County Commission chamber to hear three lawyers and a political scientist wrangle politely over an intriguing and timely question: “If you prick them, do they bleed? Corporations as persons.”
The Constitution itself doesn’t mention corporations, but you don’t have to be a professor of either law or political science to know that they’re real enough and sufficiently important to warrant repeated attention from Congress and the Supreme Court, both of which are in the Constitution.
The most recent attention and the proximate cause of the colloquy was the Court’s 5-4 ruling earlier this year in the case of Citizens United v. Federal Election Commission. In that decision, the majority gutted the Bipartisan Campaign Reform Act of 2002, better known as the McCain-Feingold Act.
McCain-Feingold had prohibited corporations, and unions and non-profits, from sponsoring “electioneering communications” – aka television ads – within 30 days of a primary or 60 days of a general election. The Supreme Court had previously ruled that Congress had the power to impose such regulation.
This time, however, the majority used the narrow issue of funding for a video called “Hillary: the movie” to issue a broad declaration that corporations enjoy the right of unlimited political speech under the First Amendment.
The scholars disagreed Wednesday not only about the correct answer to the “Are corporations persons?” question but about the wisdom, the intellectual quality and the likely effects of the Court’s decision.
Law Prof. Paul Litton took the position that seemed to a non-expert the clearest. “Are corporations persons? No,” he said. Unlike us, corporations are creations of government and subject to all sorts of regulation by it. The Court’s ruling, he said, was wrong in both law and fact and puts at risk the “fair marketplace of ideas” on which free elections depend.
Political science Prof. Marvin Overby disagreed, collegially. Corporations, including universities, have been treated as persons since the 18th century days of the English legal commentator Blackstone, he said. Our first chief justice, John Marshall, treated them as such in an 1819 opinion. He also noted that the Citizens United side of this case was joined by the ACLU and the AFL/CIO.
Harmful effects of the ruling, he argued, are only “assumed.” Corporations haven’t dominated political spending through their PACs, and they may choose not to do so even with their new freedom to spend directly.
Law Prof. Christine Wells agreed that corporations may prefer to continue concealing their political spending behind PACs; but she attacked the Court’s “intellectual dishonesty” and criticized the ruling both for overstating the problems posed by McCain-Feingold and for misstating First Amendment law.
The one point of unanimity came in response to the question of what Congress now has the power to do. Prof. Overby said public financing of campaigns is the obvious solution. He added, “Hell will freeze over” before that happens. There were nods of agreement all around.
Afterward, I thought those “39 brave men who changed the course of history” by signing the document in 1787, as the Constitution Center describes them, would have been pleased – and maybe a bit surprised – to find their creation still alive and still debated in 2010.
I plan to raise a glass to toast their courage and their wisdom.
George Kennedy is a former managing editor at the Missourian and professor emeritus at the Missouri School of Journalism.