Nexus: Chapman's Journal of Law and Public Policy

Back in January of 2010, Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010), effectively decided the issue of whether the framers of the U.S. Constitution intended for corporations to have a role in our electoral process. However, a brief look back at the history that laid the foundation for the highly controversial Supreme Court decision may suggest that allowing for corporations to have a role in our electoral process was not so much the intention of our Constitution’s framers as it was the unintended result of a Chief Justice’s passing remark and the court reporter who took it for gospel.

Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886), was a Supreme Court case involving the taxation of railroad properties. However, the opinion is most historically noted for its obiter dictum statement expressed by then Chief Justice Morrison Waite, which stated: “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does." In other words, this meant that, under the Fourteenth Amendment, corporations shared the same rights as natural persons. Aside from Chief Justice Waite’s seemingly innocuous statement, the Supreme Court never spoke further on this issue. Yet somehow this case is now famously known for this single fleeting utterance, surviving the inevitable fate of its other boring tax case brethren—being lost forever in obscurity within the pages of our nation’s legal history. Is it safe to say then that this immaculate conception of corporations into personhood was an accident? Chief Justice Waite’s now famous dictum, indeed, might not have even necessarily embodied an accurate portrayal of the prevailing legal consensus at the time; however, it is now presumably etched in stone for all of eternity. But the story gets even more interesting than that, believe it or not.

It is important to note that decisions of the Supreme Court are made widely known to the legal community by way of United States Reports. Within these reports, each case entry is preceded by a short summary of the opinion, written by a court reporter. These so-called “headnotes” are made for the convenience of the reader, and, more importantly, they are the sole product of the court reporter, reflecting his or her personal understanding of the decision. The court reporter for the Supreme Court decision in Santa Clara County v. Southern Pacific Railroad was a man by the name of J.C. Bancroft Davis. Interestingly, it was he who took Chief Justice Waite’s initial comments and made it part of the opinion via the headnote. Without him, this bit of dictum would have never even made it into the opinion because the issue was not at all addressed in the Court’s actual opinion! The Court had made it clear that it did not intend to decide the corporate personality issue, yet Davis nevertheless included it at the beginning of the headnote, thus solidifying it as the official opinion of the highest court in the land. Some intimate that the corporate personhood interpretation of the ruling was perhaps dubiously motivated by Davis’s prior position as the president of a railroad company himself, thereby creating a clear conflict of interest. But whatever the reason behind its inclusion in the headnote, there is no avoiding the fact that this is now the law of the land.

It is quite interesting that some of the most controversial legal issues raised today affecting our entire nation in terms of electoral campaign financing were seemingly born out of happenstance in an almost inadvertent manner. Who knew that a court reporter could have so much power in shaping our legal landscape? Also, the funny thing is that the actual decision of Santa Clara County v. Southern Pacific Railroad was not in the slightest bit controversial. In fact, the decision was decided by a unanimous Supreme Court. Nevertheless, we see this 1886 decision’s clearly controversial implications still reverberating today in the form of corporate spending on elections.

One more important Supreme Court decision that ultimately provided for the foundation underlying ‘Citizens United’ was Buckley v. Valeo, 424 U.S. 1 (1976). The Court in this case ruled that spending money to influence elections is a form of constitutionally protected free speech. In other words, “money” equaled “speech” now. So there is a clear logical progression here: Since corporations shared the same rights as natural persons, and since a person’s free speech is protected under the First Amendment and the ability to spend money is a form of free speech, a corporation’s right to spend money on electoral campaigns is protected by the First Amendment, i.e., the holding in ‘Citizens United.’

This chain of inferences, of course, ultimately rests upon the notion that corporations are, in fact, recognized by the Constitution as “people.” However, this notion is based on a decision that did not even address the issue and, furthermore, clearly did not intend to establish a position on the issue. Yet here we are today. I, in no way, am suggesting that there are no valid reasons at all for recognizing corporations as persons in certain contexts, however, to have such a monumental decision involving an all-encompassing constitutional interpretation essentially placed in the hands of a potentially biased court reporter seems a bit absurd to me.

It’s interesting how easy it is to forget how we got somewhere and how a particular norm we take for granted came to be. However, often times, those origins are essential in better understanding the present way of things. A frequent starting point in the debate over ‘Citizens United’ is often: “Well, first off, we all know that corporations are constitutionally recognized as persons. So the real question is whether such recognition should extend to a corporation’s right of free speech under the First Amendment.” Take away that first statement, however, and you’ve got nothing. But regardless of what this trip down Memory Lane actually means in terms of the great debate, at least we can rest assure that one commonly recited norm remains accurate: History is cyclical. Universal recognition of corporations as “persons” under the Constitution began as an assumption and still remains, today, an assumption.

http://www.straightdope.com/columns/read/2469/how-can-a-corporation-be-legally-considered-a-person.