The U.S. Supreme Court decision in Citizens United v. Federal Election Commission was delivered in January 2010. The decision extended First Amendment protections against governmental regulation of speech to corporate expenditures on political campaigns (in America, political donations have long been treated as a form of “protected speech,” just not those by corporations). The decision has changed the way campaign finance is organized in the United States, and has reshaped the legal ground on which corporate prerogatives are defined and enacted. After Citizens United, shell corporations have been used as vehicles for anonymous spending in specific campaigns, concealing candidate dependence on particular, powerful donors (New York Times 2011; Hunt 2011). Meanwhile, national organizations can spend freely in even the most local of races, increasing the cost of political participation at all levels, while locally-powerful business people and political donors have a new tool at their disposal for influencing political issues (Kroll 2011; Mayer 2011). Perhaps most significant, however, of the consequences of Citizens United is its redefinition of personhood and the politics of citizenship in the contemporary United States, through the Court’s decision to pursue deregulation by extending constitutional rights to artificial persons.1
A nationwide campaign to roll back the Citizens United decision was launched in late 2010, under the umbrella of a group called “Move to Amend,” which aims to “Abolish Corporate Personhood and Defend Democracy” through a constitutional amendment (a Supreme Court decision in the United States can only be overturned by such amendment). Move to Amend’s proposal is straightforward: “to firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights” (see www.MoveToAmend.org). A recent e-mail to supporters describes resolutions they have had a role in drafting as “declaring that corporations are not people and money is not speech.”
As a citizen, I share this goal of protecting participatory democracy and limiting the grant of power, and rights, to corporations. However, as an anthropologist I am interested by their attempt to attract support through claims about personhood and its privileges. While they accurately identify the key legal principles against which they are protesting, their slogan of “Corporations are not people” indicates a more radical disagreement with the Court, a more passionate objection, and raises questions of how legal discourses are appropriated, and how cultural notions of personhood, in turn, are formed and reformed through law.
In this paper, I will compare the present social debate over the limits of corporate personhood with a different critical account of both corporate personhood and the kinds of rights relied upon by the court to recognize it. I primarily focus on the judicial dialogue that occurs in the decision and the already-famous dissent by Justice Stevens, and in the concurrences written by Justice Scalia and others. But I am also interested to explore how the decision itself reflects a longer American political history of citizenship and recognition, which is not just a legal matter but also one of cultural understandings of personhood, identity, and its meanings. This, then, is a matter of multiple and overlapping appropriations—Judicial appropriation of critical discourses of identity; cultural appropriation of corporate prerogatives and imaginaries; and popular appropriations of political space.
These are not just abstract moments of theory, however, in which definitional problems take precedence over practical ones. By tracing appropriations, and transformations, as these legal ideas travel between actors and domains, I argue that we can highlight crucial moments where concepts and ideas become substantial, and where formalisms of knowledge take on the content of self-understandings and orientations to action. In a recent paper, Annalise Riles has noted that the corporate form depends on its dual constitution, as both an object of law and a site of real political relations. For her, whether or not we see corporations as “persons” depends on our perspective; they are either “a set of political relations” to be analyzed sociologically or “a trick of doctrinal manipulation” (2011: 43). Here I wish to expand on Riles’ argument in ways (I hope) licensed by her own claim that legal persons are variously recognized and reckoned—opened up to refiguration—within the very legal discourses of the liberal state (41, 46); but I wish to emphasize the political content of the doctrinal form, and trace the ontological consequences in one place of what, for her, given her different purposes, remains the epistemological problem of corporate personhood.
Preliminary: Formalisms of Rights
The standard juridical criticism of Citizens United is based in—and cites—a long legacy of court decisions in which distinctions were made between corporations and individuals as political actors, and it draws together a history of legal barriers that were built to segregate corporate wealth—indeed, any “aggregation” of wealth which cannot be tied to a real individual, such as union funds—from “political speech.” Yet the Court’s decision dismisses these objections out of hand, as the legacy of bad law, wrongly derived from incorrect constitutional principles. Indeed, the majority invoke a long-standing American political discourse, rooted in the Bill of Rights itself, which narrowly formulates such rights as forming a defense against the incursion of state power—as “freedoms.” More importantly, as I explore below, they appropriate a more recent discourse of “identity” which substantializes those rights as specific claims on state power, in the context of the extension of Federal authority.
But first, “rights.” The majority decision in Citizens United is marked by a familiar formalism; it asserts the equality of all claims under the First Amendment, and refuses to recognize any substantive differences between claimants. Corporations and natural persons are equally “persons” with “interests” and the capacity to “speak,” under their formalist reading. Yet the very notion of rights, on which liberal democracy rests, depends on such legal formalisms, which extend the protection of the laws without over-specifying the conditions in which they can be accessed. The formalism of rights is both their strength and their weakness, according to the critical theorists Philip Corrigan and Derek Sayer:
Rights are not defined in material or particular terms. This is, in one way, their strength. For the materially subordinated . . . this is also their limitation: not just in the negative sense of their ideality . . .but in the strongly positive sense that constructions of social identity in these terms actively denies the possibility of expressing the real experience of difference, of material subordination, politically, as anything other than ‘personal’ or ‘private’ misfortune (Corrigan and Sayer 1985: 187).
Bringing to light the implicit distinctions and invidious exclusions made under the cover of liberal guarantees of equality, in the name of humanity and its dignity, is one of the oldest weapons in the armamorium of critical political thought. Critical theorists have long insisted on the real differences between people, to explain the failure of regimes of rights—the rich and the poor, Anatole France is supposed to have quipped, are equally free to sleep under bridges. But the point, here, is that rights always construct an abstract or artificial person, and the question is not whether or not it is available in any given case, but what particular substantializations and exclusions does the abstraction itself effect. In the world of national legal systems, which themselves recognize a range of jurisdictional and regulatory domains, it is never enough to claim to be a real person or a human being in order to access positive rights. Citizenship itself constructs an “artificial personality,” a status which real persons can legitimately not have.
Furthermore, the artificial persons thus constituted in law do not remain abstract, but are further materialized in various ways, substantialized in relation to particular claims of agency and authority. Moreover, “material” subordination, in practice, is in part an inability to access the forms of legal recognition and personhood which constitute the symbolic order of the state—so even there, the really subordinated person is only such not because of his or her prior status as a real person, but because of specific relationships to law and the state.
That is, forms of legal recognition and legitimate personhood take on very particular cultural content. Thus, in Iowa very recently the Republican presidential candidate Mitt Romney was heckled about low tax rates for corporations as he talked about attempts to “raise taxes on people” (attempts he disapproves of). “What about raising taxes on corporations?” the heckler yelled. From the (literal) soapbox, Romney turned and responded, “Corporations are people, my friend,” only later clarifying that what he meant was that “Everything corporations earn ultimately goes to people. Where do you think it goes?” (Rucker 2011). Raising taxes on corporations, by this logic, is the same thing as raising taxes on people.
Romney did not misspeak. Much of Republican political discourse is based on a strict atomism, an appeal to individualism—if not a very rugged variety—which imagines total autonomy of the individual person, and indeed credits the achievements of large aggregations of wealth and coordinations of effort to the individuals at the heads of organizations, to the mythical executive directing it all. This very possessive individualism, as has been explored by the anthropologist Karen Ho (2009), is a conception of personhood and rights which is deeply based in the experience of the world of finance (from which Romney comes), with its forms of compensation and incentive, its massive buffers of wealth behind which individuals pride themselves on facing, and weathering, risk. The incumbents of the new financial economy view themselves, as natural persons, as very much like corporations—as actors with divided interests, which are summed up and expressed in disparate moments of risk. To say that corporations are made up of people, thus, is equivalent to saying that corporations and people are both actors in the economic world. They are both aggregates of money and agency. This understanding lies in the background of the Citizens United decision, and is the linchpin of the equivalence it makes between the rights of citizens and the rights of corporations.
Corporation and Freedoms
While forms of incorporation are very ancient, the modern American business corporation rose from among the technical and instrumental capacities of the later nineteenth century, and gained recognition and power across the legal and political struggles of the American century. This novelty was registered in social thought, and it is surprising to realize that for many social theorists the corporation, at least initially, represented a net gain in the freedom and power of individuals, or at least some individuals. Insofar as the reflections on corporate power by A. N. Whitehead address the problems of definition surveyed above, this also helps us identify problems and potentials in the critical response to Citizens United.
The novelty and importance of the new privileges of corporations in the legal and political culture of twentieth-century America early impressed itself upon the philosopher Alfred North Whitehead. Whitehead wrote, in the early 1930s, that “new knowledge, and new technologies, have altered the proportions of things” (1967: 273), and more precisely, he noticed that the power of the corporate form was expanding to alter the very terms of political and social theory. “These fictitious persons are exempt from physiological death and can only disappear by a voluntary dissolution or by bankruptcy. The introduction into the arena of this new type of ‘person’ has considerably modified the effective meaning of the characteristic liberal doctrine of contractual freedom. It is one thing to claim such freedom as a natural right for human persons, and quite another to claim it for corporate persons” (Whitehead 1967: 62). At the time, corporations operated with a great deal of freedom from governmental regulation, and were granted, under the Supreme Court’s decision in Lochner v. New York (198 U.S. 45 ), a nearly absolute power to set the terms of contracts. This formal status of corporations as “equal” in contractual relations meant that “The whole concept of absolute individuals with absolute rights, and with a contractual power of forming fully defined external relations, has broken down.” The freedom to contract, of course, redounded much more massively to the benefit of corporations—as artificial persons unaffected by considerations of creaturely necessity—than to individual men and women who may need to accept invidious terms in order to access the minimal benefits that a contract, such as a wage-contract, offered.
Whitehead was surely aware of this legal context and the political problems and criticisms it spurred. But for him, such a legal formalism about “freedom of contract,” in practice, revealed the actual multiplicity of social actors and their differential powers, and on that basis one could move forward to identify new possibilities of action which would reshape the corporate forms necessary for any realization of personhood, while also making impossible the kind of abusive legal fictions relied upon in Lochner (and in Citizens United). “Only recently,” Whitehead concludes, with the modern business corporation “has the influence of ideas produced its full economic effect. But wherever ideas are effective, there is freedom” (65).
Whitehead attempts to reconstruct the notion of the person in accordance with historical and political conditions which entail a tremendous amount of coordination. He recognizes the creaturely, or anthropological, existence of individual men and women, but recognizes the enormous power—potential—of “coordinated inheritance” to make, and remake, the conditions for that former existence. His philosophy, here, represents a signal attempt to transform the objective subordination of the individual person to external conditions of existence, into the source of the power for remaking that existence. The corporate form is one vehicle for such a realization of individual freedom.
In modern states there is a complex problem. There are many types of character. Freedom means that within each type the requisite coordination should be possible without the destruction of the general ends of the whole community. Indeed, one general end is that these variously coordinated groups should contribute to the complex pattern of community life, each in virtue of its own peculiarity. In this way, individuality gains the effectiveness which issues from coordination, and freedom obtains power necessary for its perfection (1967: 67, emphasis added).
Whitehead is not a propagandist for corporate power; he is struggling to reconcile the conflicting realities of the political and social currents of his day, and he arrives at a conception of the person as enmeshed in institutional relationships and subject to distant sources of power. For Whitehead, participation in such collective projects could be essentially liberational. His writings offer the possibility of reconciling the demands of technical and social coordination—which involves constraint and subordination—with those of a political community founded on the desired liberty of the individual.
Constructions of Citizenship
This may seem naïve. We certainly do live in an era of immense corporate power. But Whitehead’s point is that this power is not necessarily confined to the formal or technical devices in which it has first accumulated. However, the devices—of rights, of recognition, and of corporate concentrations—are here tied up with, and durably so, a particular history of Federal state-formation. The rights and actors at issue in Citizens United are directly involved in a set of extensions and restrictions of federal power, its reach across the continental commercial enterprise of the country, and thus across multiple local jurisdictions. Some further background on the constructions of citizenship inherent in these relations to Federal rights is necessary, in order to arrive at a reading of Citizens United.
Recent legal scholarship, in the aftermath of Citizens United, has illuminated the dense interconnections between corporate personhood, the grant of rights and immunities to corporations in the context of constitutional law, and constructions of citizenship within American legal culture. More specifically, john a. powell and Caitlin Watt (powell does not use initial capitals in his name) have explored the connection and disconnection between corporate prerogative and racial inequality in the domain of citizenship and the equal protection guarantees of the Fourteenth Amendment.Indeed, they stress that while technically speaking the legal ground of corporate personhood in the United States rests on a single decision from 1886—known as Santa Clara—and while corporate personhood as such is not much addressed in Supreme Court jurisprudence, when seen through the lens of equal protection guarantees corporate personhood fills the subtext of multiple decisions on citizenship and rights.
“[T]he Court has [historically] shown some ambivalence and hesitation about relying on the Santa Clara doctrine of corporate personhood” powell and Watt write, and yet despite this silence they find ample grounds for identifying the racial construction of a form of federal citizenship for corporations, and substantive denial of that citizenship to blacks and other minorities (2011: 902). The Fourteenth Amendment to the US Constitution was passed after the Civil War to extend citizenship and the “equal protection of the laws” to formerly enslaved black Americans. Yet for most of the nineteenth and twentieth centuries, the guarantees of that Amendment have been used to recognize corporate rights to Federal legal protection, while other constitutional provisions have been used to deny black citizens such federal legal recourse. What the key post-Civil War cases about corporations, on the one hand, and the limited scope of equal protection for black citizens, on the other, “gave us was states’ rights as applied to blacks and other non-whites, and judicial federal protection against states’ rights and Congress as applied to businesses and corporations” (2011: 889). These trends in jurisprudence underwrote a double process of Northern corporate dominance over the defeated South (corporate rights) and White (not exclusively Southern) dominance over racial minorities—constituting both the majority and the minority as such in the process—and can be traced in the Court’s jurisprudence up to the Civil Rights era.
There is almost no discussion in the majority decision in Citizens United of what real, as opposed to formal and constitutional, differences may pertain to persons and corporations as political speakers. It never asks whether or how corporations can be said to speak; it never addresses how differently-positioned individuals might interact with, or live within, the corporate form. This silence has been the basis for much of the animus generated against the decision, and the wide-spread use of the slogan “Corporations are not people!” to summarize and oppose its conclusions. The legal scholarship on the matter, however, indicates a different slippage—not between people and corporations, but between different domains of constitutional jurisprudence and, the anthropological point, between collective and individual forms of personhood.
If Equal Protection jurisprudence, as powell and Watt argue, consistently extended Federal protection under the Civil Rights acts—thus a form of citizenship—to corporations as a bulwark against state law, while withholding that protection from racial minorities, the tendency of more recent rights jurisprudence moves from the Civil War amendments and their guarantee of citizenship to the substantial rights enumerated in the Bill of Rights. The First Amendment protections of free speech that are at issue in Citizens United are only one example, but a significant one. As with the Equal Protection guarantees, First Amendment guarantees are not, in practice, universal, but are unequally applied across a variegated legal fabric. But the distinction of importance here is not between jurisdictions—state versus federal—but is rather one of identities, as a guarantee of access to the law. This has the effect of legally substantializing what had remained a virtual, or purely jural, claim of personhood. And here the problem does become one of people versus corporations, since they are equally substantialized as agents (speakers) but unequally efficacious in their claim on agency.
The majority affirm, in the course of their argument, the settled principle that First Amendment rights extend to corporations (slip op., p. 25-26), but do not explicitly address the consequences of their decision to remove all the qualifications and conditions which had been attached to that right in previous jurisprudence.2 The rhetoric of the majority’s decision is replete with references to the “identity” of corporations, the “class of speakers” constituted by corporations, and they stress that this identity is no basis for making regulatory distinctions.
This aspect of the majority’s reasoning has been much noted. Stevens, in his dissent, writes that “the Court’s denunciation of identity-based distinctions may have rhetorical appeal but it obscures reality” (Citizens United, opinion of Stevens, slip op., p. 28), and he further notes that the majority “overlooks the distinctive considerations raised by the regulation of corporate expenditures” (p. 74). He expands from this specific criticism to offer some general conclusions about the corporate form itself:
[C]orporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established (p. 76).
Kennedy’s majority opinion makes some gestures to acknowledge the problems that might be posed by “massive accumulations of wealth,” their “distorting influence” in the political process. He disagrees, however, that the corporate form particularly represents such massive accumulations. As a class of speakers, corporations are not distinguished by their wealth, he argues (there are 5.8 million corporations in the United States, he notes, and most of them are very small). Why are we making distinctions, he asks, between rich individuals and rich corporations, when there really is no basis for making such a distinction. Corporations, then are distinguished, in law, only by their “corporate identity,” and the identity of the speaker is no basis for restraining it. This line of thought is based on the prior conclusion that there is no principled distinction, at least for constitutional purposes, to be made between corporate economic entities (corporations) and formally individuated (one person, one vote) political entities (citizens, united or otherwise) (Citizens United, slip op., p. 38).
When members of the majority do address the corporate form directly, it is to praise its particular economic power and efficacy, and to emphasize the legitimacy of this power as part of the function of representation and agency—the distinctive identity—that corporate speech can perform in the political sphere. As Justice Scalia argued in an earlier dissenting opinion, and reaffirmed in his concurrence to Citizens United, corporations have “the voices that best represent the most significant segments of the economy” (McConnell v. FEC 551 US at 257-258 , opinion of Scalia, quoted in Citizens United, slip op., p. 38). “To exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate” (Citizens United, opinion of Scalia, slip op., p. 9).
It is important to note the connection between agency—effective action—and corporate identity which is made here, for it goes beyond the formalism of “corporate personhood.” Carol Greenhouse notes, in the course of a discussion of the thematics of identity in Americanist urban ethnography of the 1990s, that “as a term in usage in the United States, identity is specific to an era when rights discourse came under attack and scholars sought to broaden the discourse of liberal pluralism past singular minority experience, and past the nation-state, toward critical exposure of contradictions in the sphere of recognition. . . . Identity, in other words, is a form of agency” (C. Greenhouse 2011: 256). In short, as rights-based claims became less available because of their particularistic association with policies of racial justice and the progressive delegitimation of such claims by rising neo-liberalism, identity emerged as a way to express a personal relation to a history, and as a present claim on, or struggle for, inclusion. From the formalisms of rights, illegitimately fixed to particularistic racial claims by opponents of those claims, American political discourse moved to the material claims of identity as a new basis for inclusion and recognition. Identity came to be the term that referred at once to race, ethnicity, sexuality, gender, class, and culture as critical potentials for expanding citizenship.
I not claiming that Justice Kennedy or the other authors of concurrences are consciously drawing on this history of the term when they use it, over and over, to refer to the “corporate identity” of speakers in the political sphere, to their agency and interests, and the unconstitutionality of any state or federal restriction of their speech. However, the logic of the decision certainly represents an appropriation of longer-standing discourses of identity and rights in American life.
Appropriation is the mot juste here, insofar as what was defended in identity politics—individuality, personal freedoms—is illegitimately recast as a prerogative of corporations. What was pursued as a desired freedom for people—their free flourishing of selfhood—is now taken as a right of jural persons. Money and agency are collocated, here, as the markers of a uniquely corporate identity. When identity represented a substantial claim, as against the formalisms of rights, for inclusion in, and thereby differentiation of, the political sphere, it became an expression of agency, a claim on power. Kennedy, however, reformulates identity as a negative, as a principle of illegitimate exclusion from the public sphere: “The First Amendment does not allow speech restrictions based on a speaker’s corporate identity” (slip op., p. 31); “The worth of speech ‘does not depend on the identity of its source, whether corporation, association, union, or individual’” (p. 33, quoting First Nat. Bank of Boston v. Bellotti 435 US 777).
This particular use of identity to name an illegitimate basis for making distinctions, moreover, depends on the special efficacy of the speaker—because some special function of representation is performed by this speech, the government is particularly barred from suppressing it. By applying such a criterion, the majority achieves a kind of backwards swing against the substantive uses made of rights in post-Civil Rights politics, and also against the material claims made under the banner of identity. Just as we saw in the genealogy described by powell and Watt, the formal expansion of freedoms in one domain is jurisdictionally limited in order to achieve an exclusion in another. Likewise, Corrigan and Sayer, as we saw above, argue that rights-discourses bar any political or public articulation of different experiences, any way of linking citizenship with material subordination or disfavored location in economic or jural relationships. But in practice, rights do take on material form, as they are exercised and made the subject of very specific claims on the state—for recognition, for material assistance, for the ability to perform specific acts. It is a much-remarked attribute of rights, as such, that making them effective is an entirely different matter from decreeing them.
Justice Scalia, with his characteristic exuberance, arrives at his justification of the decision in Citizens United precisely through the collocation of identity-based claims and their material efficacy, when he claims that we should “celebrate” the inclusion of corporate speakers in the public sphere. The majority, as a whole, thus is doing something more than extending rights through a blind formalism; their decision effects specific substantializations within the political field. That is, a very particular logic of identity appears to be at stake here, where its material realization as corporate power matters—as an empirical instantiation of its efficacy—to the elaboration of it as a negative basis for constitutional review. Corporate personhood is actively substantialized by the majority decision in Citizens United; no longer a legal fiction, it is the very principle of identity and agency.
What for Whitehead was a dialectic by which developing energies and powers mobilized in corporations could be coupled with the “formulated aspirations” of a political community—the working out in new potentials for personhood of tensions inherent in the modern form of political and economic life—is a blank contradiction in the formula arrived at by the majority in Citizens United. To speak of the identity of corporations at the moment of barring any distinctions between speakers in the political realm makes it impossible to make a claim based on any other identity, and thus forestalls any substantive justice. Identity no longer activates potentials hidden in the formalisms of rights, but rather is barred from being a principle by which people might differentiate their claims upon the state, precisely because it is a domain where some actors—corporations—are so very efficacious.
As an argument against Citizens United, then, I fear that “corporations are not people” is anticipated, neutralized, and appropriated by the terms of the decision itself. Indeed, corporations are not people, but they are, in this logic, the representatives and bearers of a kind of freedom and agency that must be protected, and which finds its proper home in the public sphere. Insofar as they bear identity, they are the models for an effective citizenship. To really challenge this distribution of agency to corporations, which is not just a matter of new privileges or deregulatory programs, but is crucially also a matter definitions of legitimate personhood, we need to re-equip ourselves with a notion of rights as not merely formal protections against incursions, nor conversely as inhering only in the boundaries of an identity and as rooted in particular identity-based claims, but as quite deeply and seriously woven into the very substance of the self and as the basis for a claim of solidarity with others, who bear other identities. If rights are rethought not as protections against state power, but as a positive warrant for selfhood and for a project of collective governance of the self and others, then they become a site of political agency which can be more specifically reserved to human actors.
In his dissent, Justice Stevens calls the majority’s grant of identity and thus constitutional protection to corporations “a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government [by excluding them from electioneering] since the founding.” Likewise, for Whitehead, the economic forces and technological apparatuses of his day—the “senseless” side of history—did not have the final say as potentials for effective action. It was not what it could do that made corporate or technological power so effective, in his thought, it was what it might serve or make possible for real men and women, in a context where individual power was not enough. The action of artificial or “senseless” elements in driving large-scale changes, for Whitehead is or ought to be conditioned by "formulated aspirations" which incessantly appear in the occasions of human becoming. “The great Harmony is the harmony of enduring individualities, connected in the unity of a background. It is for this reason that the notion of freedom haunts the higher civilizations. For freedom, in any one of its many senses, is the claim for vigorous self-assertion" (Whitehead 1967: 281).
The key insight that both of these thoughts share is embedded in their mutual turn to a collective notion of the “self”—or, perhaps better, the notion of the self as a collective—as the constituent unit of government. Speech, here, may be private and unheard, but it is nonetheless still speech, emanating from a (substantial) point of human agency. Whatever else corporations may be said to be—including, perhaps, “enduring individualities”—as corporate entities they certainly are not selves, constructed or otherwise. Thus, when it comes to vigorous self assertion and the potential for human flourishing in even the most constrained of conditions, there finally corporations are not, or ought not be allowed to be, people.