On the fifth anniversary of the Supreme Court's decision, with reports of unprecedented "dark money" continuing to flood the political system, Citizens United is as controversial as ever. Brooke speaks with Boston College Law School professor Kent Greenfield, who agrees that unlimited money in politics is a threat to democracy, but disagrees that "Corporations Are Not People."
BROOKE: This week marked the fifth anniversary of every liberal’s least favorite Supreme Court decision, Citizens United--that opened the floodgates of politics to almost unlimited dark money. The ruling notoriously found that corporations are endowed with the same constitutional rights as people. Or as Mitt Romney put it during his presidential run:
Romney Clip: Corporations are people, my friend. Of course they are. Everything corporations earn ultimately goes to people.
BROOKE: Mitt’s remarks seemed gift-wrapped for liberal derision, here expressed by Senator Elizabeth Warren”
Warren Clip: No, Governor Romney, corporations are NOT people. People have hearts, they have kids, they have jobs...
BROOKE: Kent Greenfield is a professor of corporate and constitutional law at Boston College and a critic of Citizens United. But in a recent article for the Washington Monthly, he says our problem is not that we have too much corporate personhood but...what Kent?
GREENFIELD: Too little. My take on this is that corporate personhood is one of the most important legal innovations in the development of our national wealth. And here's why: Corporations are separate in order to facilitate investment. So, when I invest in General Motors, I'm insulated from the liability of that company. So if cars roll over, I'm not liable for that as an investor. The same goes for employees and indeed managers if they're not personally responsible for what happened. So that separateness protects investors. One would never invest in General Motors or Chevron or BP if you thought you might have personal liability for their mistakes.
BROOKE: Yeah, but wouldn't it make those companies more accountable?
GREENFIELD: Sometimes harms that are caused by corporations are so great that they can only be paid out of the corporate pocket. And you know think about the BP oil spill. No individual has enough money to pay for those damages. So it's important for corporations to have separate legal personhood in order to make sure that there's some entity out there who can be held responsible for bad behavior.
BROOKE: So, personhood can also be a mechanism for enforcing accountability.
GREENFIELD: Absolutely. To be a legal person means that not only do you have legal standing to sue, you also have the legal standing to be sued. When it comes to First Amendment free speech matters, I think there are situations in which corporations should be protected in saying things that are germane to their business and are important in the public debate. But I don't think that corporations should have the same free speech rights that you and I do, because once they get far afield from their business, then it becomes much less relevant to the public debate, and it's much more likely to be a matter of self dealing or misappropriation of corporate resources internally.
BROOKE: Let's apply all of this to another notorious recent case. Last summer the Supreme Court ruled that the corporation Hobby Lobby was legally exempt from the mandate to provide contraceptives in its healthcare on religious grounds. This was seen by many as a victory for corporate personhood. But you, along with a group of corporate lawyers, filed a brief against Hobby Lobby arguing on the grounds of corporate personhood. Please, try and comb this out.
GREENFIELD: So the case came about when the family that owns Hobby lobby, this evangelical family, claimed that when the government required Hobby Lobby the company to provide contraceptives to their employees it was a violation of the family's religious rights. What we argued was that corporate personhood should have lead the court to say that the families religious rights were not at issue. Because of that idea of separateness. The family that owns Hobby Lobby incorporated Hobby Lobby in order to protect them from legal liability in order to separate the family from the business of the company. Our argument was that they should not be able to separate themselves from the company for purposes of liability, but say that they're one and the same for purposes of religious rights. So corporate personhood should have led the court to say, "Look, Hobby Lobby is one thing, the shareholders are the other, and the shareholders' religious beliefs don't really affect the company one way or the other."
BROOKE: But if the courts don't apply this concept completely, then it's dangerous to have it at all.
GREENFIELD: Well, the idea of corporate separateness and corporate personality is everywhere in corporate law. And in fact is a basis of corporate law. And I think the fact that the Supreme Court did not get it right in this one case doesn't doom this endeavor forever. I just think they got it wrong.
BROOKE: Let's go back to the case at hand: spending on political campaigns. A recent report from the Brennan Center found that outside political spending more than doubled since the Citizens United ruling in 2010. Now the conventional, liberal wisdom is that this influx of dark money stems from the recognition of corporations of people. You say that's just not true.
GREENFIELD: It's not true in this respect: The largest corporate donor in the 2012 election cycle was Chevron. They gave 2.5 million dollars. But Sheldon Adelson and his wife gave over 90 million dollars; the Koch brothers gave over 400 million dollars. So the problem of money in politics is a serious problem, but it's a problem mostly of rich individuals not corporations. So I don't want to minimize the risk of corporate money in politics. But at the same time I think the focus on corporate personhood leads us to ignore what I think is the larger problem of rich individuals getting involved. And also I think our thinking and our debate about remedies really is affected by where we think the problems. I mean I think the problem is money full stop, not corporate money. So I think the remedies need to be aimed at the regulation of corporate finance in general.
BROOKE: Why do you think people like Senator Elizabeth Warren and President Obama, both of them former law professors, Obama a constitutional law professor--why have they campaigned unabashedly on an anti corporate personhood platform? Do they not get it?
GREENFIELD: I think it's the nature of politics, right? You want to have a slogan that cuts to the heart of the matter, and in some ways they're right that this engages the Democratic base in ways that other slogans have not. Because people fear, and rightly so in my view, the power of corporations not only in politics but in other areas of our lives. My only response is that arguing that corporations are not people is like tearing down a house to get rid of termites. The energy for change is a finite resource, and I think that energy could be much better spent at focusing on limiting corporate power in other ways.
BROOKE: Kent, thank you very much.
GREENFIELD: Thank you, Brooke.
BROOKE: Kent Greenfield is a law professor at Boston College. His article for the Washington Monthly is called "Let Us Now Praise Corporate Persons."