This entry was originally posted at Demos’ Policy Shop.
Jeffery Clements was at Demos this morning for an event marking the New York launch of his new book, Corporations Are Not People. As a lawyer and cofounder of Free Speech for People, Clements has been one of the leading voices in the campaign for a constitutional amendment to overturn Citizens United. This book, rather than simply providing a limited guide on the harms of corporate political spending in elections, offers a much more profound reexamination of the role corporations play in American public life.
While Citizens United might look like an outlier in the Supreme Court’s First Amendment jurisprudence, Clements makes a very compelling case that the decision can be better understood as the culmination of a decades-long campaign to insulate corporate activity from democratic regulation and control.
This corporate rights agenda was first outlined in the 1971 Powell memo, a confidential memo written by former-tobacco industry lawyer and later Supreme Court Justice Lewis Powell to the Chamber of Commerce. Powell’s memo complained that corporations were under public attack by all kinds of public health and safety regulations, and he provided a decades-long strategy to construct an area of corporate rights that would no longer be subject to public laws that cut into their potential bottom lines. Powell was eventually appointed by President Nixon to the Supreme Court, where he began transforming the First Amendment into what Jedediah Purdy recently called an “anti-regulatory hammer.”
Clements also draws attention to an interesting wrinkle in the right-wing deregulatory project that often goes unrecognized: conservatives have long been conflicted about providing corporations with constitutionally recognized rights. Chief Justice William Rehnquist, another Republican Nixon appointee, was extremely influential in standing up to the invention of new corporate constitutional rights. Rehnquist has a number of eloquent dissents that reiterate the idea that corporations are a legal fiction — a creation of state law that provides a useful instrument for economic growth — and he repeatedly stood up for the position that the states are permitted to define the privileges and burdens created by the corporate form.
Justice Rehnquist dissented to Powell’s activist vision of the First Amendment as early as 1978 inFirst National Bank of Boston v. Bellotti, which recognized corporate speech rights to contribute to political campaigns, and in the 1980 case Central Hudson Gas & Electric Corp. v. Public Service Commission, which struck down a restriction on commercial advertising as a violation of the First Amendment. As recently as McConnell v. Federal Election Commission, which upheld the same campaign finance law that Citizens United eviscerated, Chief Justice Rehnquist was able to maintain a majority of the Court for the position that a democratic majority may legally limit the role of corporate money in elections. As Clements noted, it was not until Justices Alito and Roberts joined the Court that the corporate rights project of removing democratic control over corporate behavior attained its current high-water mark.
Clements was a persuasive speaker, and beyond looking forward to this book, I’m excited to see the impact he will have on the way Americans understand their relationship to corporate power. More than a call to undo Citizens United, this book makes a wide-ranging rallying cry to restore the rule of public law over those forms of concentrated wealth that are manipulating and dismantling the democratic institutions the United States was founded on.