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Kreis: Corporate Personhood

01/20/12 7:55AM By Don Kreis
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(Host) Many Vermonters have jumped on board the bandwagon recently for amending the U.S. Constitution to prohibit corporations from being treated as persons under the law. But commentator and Vermont Law School professor Don Kreis thinks the movement might be missing the point.


(Kreis) Count me among those who are puzzled - and a little worried - about the recent furor over so-called "corporate personhood." People are all riled up about this notion of corporations as persons in the wake of the much-reviled Citizens United decision of the U.S. Supreme Court two years ago. It's the case in which the Court decided, by a 5-4 vote, that the First Amendment protects corporate entities as well as individual citizens in the context of restrictions on campaign contributions. The case furthers the regrettable notion that, in the political realm at least, money equals speech - free speech, in particular.

What's odd about the resulting spasm of discontent over corporate personhood is that neither the phrase nor the concept appear anywhere in the Citizens United decision. In fact, I would argue that the actual decision of the Court is pretty unexceptional. If we enjoy free speech rights as individuals, why should we shed them when we exercise them collectively? Whether it's the newsletter of my local Parent-Teacher Organization, the editorials in the New York Times, or a hostile documentary some group called Citizens United made about Hillary Clinton, I'm comfortable with the notion that First Amendment freedoms apply.

I too am disgruntled by the Citizens United decision, because it opens the door wide to dominance of our democracy by the wealthy and powerful. But I would take the national debate over Citizens United in a different direction.

I'd start from the premise that corporations are not inherently evil - they are empty vessels. You can incorporate and become a vast conglomerate and then spill oil in the Gulf of Mexico . You can incorporate as a nonprofit and serve the poor and the dispossessed. Or you can incorporate as a cooperative and harness entrepreneurial energy for the good of the customers or the workers or the farmers who own the co-op.

Then I would consider why we incorporate. A certificate of incorporation, issued by a state, is the gift that keeps on giving. The essence of incorporation is limited liability - the owners of a corporate entity can lose only their investment and nothing more. And corporate entities enjoy perpetual life - they never have to return to the government agency that authorized their incorporation and justify their continued existence.

Maybe it's time to change that. The notion of corporate personhood is really just a metaphor - perhaps we should run with it. How about the death penalty for corporate entities that suck wealth out of their communities and leave nothing but squalor and misery in their wake? How about new laws that facilitate, rather than discourage, individual people investing in locally based corporate entities that truly dedicate themselves to life-affirming and community-affirming purposes?

If we did those things, then maybe wealth-maximizing corporations would become less powerful - and we'd see a new birth of freedom... so that government of the people, by the people, and for the people, shall not perish from the Earth. To coin a phrase.
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