Justice Sotomayor: End Corporate Personhood... maybe

Last week, Justice Sonia Sotomayor made a “provocative comment” that probed the foundations of corporate law. The case, Citizens United v. Federal Election Commission, involves whether federal campaign finance laws apply to a critical film about Hillary Clinton intended to be shown in theaters and on-demand to cable subscribers.

The court’s majority conservatives agreed that corporations have broad First Amendment rights and that “recent precedents upholding limits on corporate political spending should be overruled.” However, Sotomayor disagreed, and said the court should reconsider the 19th century rulings that first afforded corporations the same rights as real, live people.

Judges “created corporations as persons, gave birth to corporations as persons,” she said. “There could be an argument made that that was the court’s error to start with…[imbuing] a creature of state law with human characteristics.”

Corporations have been claiming personhood in order to protect their profits from undue strain under regulations or fair taxation ever since Santa Clara County v. Southern Pacific Railroad Company in 1886, a United States Supreme Court case dealing with taxation of railroad properties.

At the California Constitutional Convention of 1878, the state legislature drew up a new constitution that denied railroads the right to deduct the amount of their debts (mortgages) from the taxable value of their property, a right which was given to individuals. Southern Pacific Railroad Company refused to pay taxes under these new changes. The taxpaying railroads challenged this law, based on a conflicting federal statute of 1866 which gave them privileges inconsistent with state taxation. Basically, Big Railroad, one of the largest corporations in the United States at the time, didn’t want to pay their fair share of taxes, so the corporation claimed personhood.

The case is most notable for the statement that corporations are entitled to protection under the Fourteenth Amendment. As Justice William O. Douglas wrote in 1949, “the Santa Clara case becomes one of the most momentous of all our decisions…Corporations were now armed with constitutional prerogatives.”

Of course, corporations are not people. They don’t vote. They don’t breathe the polluted air some of their industries help to create. They have no children to drink the poisoned water they pump from their factories. Now that citizens see the toll deregulation has taken (tainted environment, outsourced jobs, and widening class divide, including a desperate underclass ruled by a tiny coterie of fat cat CEOs and bailed out financial institutions,) Sotomayor’s statement doesn’t seem as controversial as it may have a decade ago.

As tame as her remarks may have been, she still managed to scare the crap out of Todd Gaziano, director of the Center for Legal and Judicial Studies at the (surprise) conservative Heritage Foundation. ”[I]t “doesn’t give me a lot of confidence that she respects the corporate form and the type of rights that it should be afforded.”

Corporate form, in this case, means corporate personhood. It means protecting corporations from accountability and fair taxation. Corporate form, in Gaziano’s world, means “business as usual.”

One can’t predict the remainder of Sotomayor’s judgments from this one statement, but if this is the beginning of a trend, Justice Sotomayor should be applauded for her bold, fresh thinking. Now, more than ever, the United States needs a Justice who understand that corporations have been getting a free ride, and it’s time they pay their fair share.