RALEIGH – Cattle, sheep, and other herd animals lack the ability to chew, swallow, and digest their food the way we do. They regurgitate solids from their stomach in the form of a cud, to be further chewed and broken down before digestion.
Similarly, left-wing politicians, activists, and other herd animals seem to lack the ability to swallow and digest the idea that human beings don’t lose their free-speech rights when they form corporate businesses. Rather than accepting this basic principle of equal rights under the law and moving on with their political lives, these ruminants keep regurgitating their anti-business talking points and mouthing them endlessly.
It’s a phenomenon I’ll call CUDS – for Citizens United Derangement Syndrome.
While the U.S. Supreme Court’s 2010 decision in favor of protecting the political speech of corporate leaders and shareholders was a momentous one, it did not represent some major break with past precedent regarding the legal status of corporations. For decades, courts have properly viewed corporations as fictitious persons for the purpose of describing collective actions and adjudicating disputes.
What would truly be weird is if courts didn’t do this, because the underlying concept is familiar and undeniable. When talking about organized groups or social institutions, we all use verbal shorthands such as General Electric, the National Football League, the Catholic Church, or the White House. When you hear these terms, your mind doesn’t conjure up images of talking light bulbs, self-propelled footballs, dancing rosary beads, or a giant White House striding down Pennsylvania Avenue on columned legs.
What is obviously meant, and what the audience hears, is the “corporate executives at GE,” the “commissioner of the NFL,” the “Pope and other church leaders,” or “the president and his aides.” Human beings have used such names to refer to institutional leaders and collective action since at least the early days of ancient Egypt, when people referred to their kings as “the Big House,” or Pharaoh.
To say that “the New York Times” asserts its freedom of the press, or that “the Sierra Club” has concerns about fracking, or that “the General Assembly” will return to Raleigh in early January to vote on Gov. Perdue’s veto of the Racial Justice Act is never to say that a building, a printing press, a stack of paper, or a section of the state constitution can do anything of these things. They are inanimate objects or abstractions. They cannot take actions. In every case, the clear meaning of the terms is that some person or group of persons is speaking or acting.
Critics of Citizens United, and more generally of the idea that the First Amendment is at odds with limits on political expression, have gotten so fixated on the term “fictitious” that they miss the term “person.” Of course there is no person named General Electric. But the actual human beings to whom we refer when we say “General Electric” have just as much right to lead and speak on behalf of their organizations as do those who lead or speak on behalf of the New York Times, the Sierra Club, or any other institution that derives its resources from voluntary exchange.
But don’t expect the liberal herd to stop chewing their CUDS anytime soon. Sen. Bernie Sanders of Vermont and nearly two dozens Democrats in the U.S. House have proposed a constitutional amendment to reverse Citizens United and strip the leaders of business corporations of their rights.
Naturally, the amendment’s authors attempt to protect non-business corporations and media companies from the new restrictions – since what they really dislike are messages delivered by conservatives, not messages delivered by corporations – but as several lawyers have already explained at some length, their attempts would fail. Of course this fascist amendment would never become law, but if it did it would imperil many of the constitutional protections of liberty that Americans take for granted.
As the CUDS case demonstrates, we should never take liberty for granted. It has enemies. They may be dimwitted or daffy, but they can still be dangerous.
Hood is president of the John Locke Foundation.