Corpus Ex Machina Diary of a Mad Law Professor by PATRICIA J. WILLIAMS This article appeared in the February 15, 2010 edition of The Nation. January 28, 2010
In 1976 the Supreme Court held in Buckley v. Valeo that the expenditure of money is a form of speech protected by the First Amendment. The implications of that case came to an absurd and unfortunate head with the January 21, 2010, decision in Citizens United v. Federal Election Commission. While the Buckley case allowed individuals unlimited spending in pursuit of political ends, Citizens United allows corporations that very same grace, and then some. It is a strange moment in jurisprudence. On the one hand, corporations frequently restrict the expressions of employees or others within their purview: what they may wear, what their T-shirts may say, what political messages they may post on the walls of their cubicles. On the other, the inanimate entity of the corporation itself will now enjoy a range of First Amendment benefits not limited by principles of debate or substance, and it will be constrained only by the size of its treasury in deploying whatever technological bullhorn has the greatest chance of drowning out everyone else. Hence, the questions on many minds are why “freedom” (as in speech) has become the functional equivalent of “expenditure” (as in money) and why on earth corporations are considered “persons” to begin with. First, the Buckley decision has always been controversial, though until now it has been interpreted as allowing expenditures as a subcategory of the expressive power of living individuals only. A corporation, by contrast, is not only not human, it is property. A corporation has no natural life span, it does not vote and many are multinational. Corporations, even nonprofits, are necessarily exclusionary–their very existence premised on bottom-line calculations, competitive power grabs, branding and prospecting for self-promotion. A corporation is obliged by its bylaws to pursue its stated purpose and no other. It doesn’t change its nonexistent mind or respond with compassion or feel empathy. Thus, the “corporate citizenship” that the majority in Citizens United touts so blithely is a very different beast from citizenship founded on a constitution of enfranchised individuals and premised on a constituency of souls united in allegiance to an ideal of community, an egalitarianism of society, the mutual shelter of a nation. Second, a word about the history of legal “persons”: for more than a hundred years, certain inanimate entities have been granted the status of fictive personhood for limited purposes. The concept grew out of the necessity for businesses to negotiate as well as to be accountable in the marketplace. When, for example, a company manufactures a defective product and sells it to you, you sue the company–not the individual executives or employees (unless there has been some act of extreme wrongdoing on their part). In other words, the company is a kind of juridical stand-in for a person, with that status rooted in the efficiency interests of contract and property law. It takes either the most simple-minded or the most cynical state of mind to conclude from this basis that corporations are entitled to the same panoply of civil and dignitary rights as actual, fully endowed people (as in, “We, the…”). The Citizens United opinion begs the question: for whom is our Bill of Rights? Is a corporation really a “who” or a “whom”? If a public “person” is capacious enough to encompass a privatized “corporate” plurality, then are “We, the people” not thereby reduced by propertied fiefdoms huddled behind a facade of “free” republicanism? If, once upon a time, enfranchisement was calculated according to such diminishing metrics as “three-fifths of a person,” does not this ruling confer a similar, if magnifying, mathematical disproportion upon the organizational prostheses we know as corporations? In 1935 the great legal realist philosopher Felix S. Cohen wrote a wonderfully illuminating article called “Transcendental Nonsense,” in which he debunked (at least for that generation) the notion of corporations as persons. Cohen challenged the reasoning of the Court of Appeals of New York when it asked “Where is the corporation?” in a decision about the proper venue for a suit lodged in the State of New York against the Susquehanna Coal Company, a Pennsylvania corporation. “Nobody has ever seen a corporation,” Cohen pointed out. “What right have we to believe in corporations if we don’t believe in angels? To be sure, some of us have seen corporate funds, corporate transactions, etc. (just as some of us have seen angelic deeds, angelic countenances, etc.). But this does not give us the right…to assume that it travels about from State to State as mortal men travel.” Cohen denounced such thinking as essentially “supernatural.” He reminded jurists that a corporation does not really have a body with only one fixed head–that it may have a corps of employees in multiple states simultaneously. “When the vivid fictions and metaphors of traditional jurisprudence are thought of as reasons for decisions, rather than poetical or mnemonic devices for formulating decisions reached on other grounds, then the author, as well as the reader, of the opinion or argument, is apt to forget the social forces which mold the law and the social ideals by which the law is to be judged,” he wrote. In Citizens United, the Roberts Court has deployed just such a delusionary poetic device: “prosopopoeia,” or a figure of speech that bestows upon an abstract entity the power of speech. Mssrs. Snap, Crackle and Pop, for example. The Geico gecko. The constructive endowment of speech unto such unendowed figurations is a common imaginative enterprise of the human mind. But the transference of such expressive power is always driven by, and must always be recognized as, a fiction in service to some very specific nonimaginary end. If there is no such grounding in practical purpose, we humanize a golem. We think Mr. Clean is addressing us in real time. We hallucinate.