Tuesday, November 6th was the first major election cycle since the Supreme Court decided on Citizens United in 2010. In the decision, the majority ensured first amendment rights for corporations and unions when it said that the government could not restrict independent political expenditures. Moreover, under the court’s ruling, the amounts of money which corporations and unions contribute does not have to be disclosed. In June, the Supreme Court upheld their decision when it overturned a century old Montana law that limited corporate campaign spending. The case American Tradition Partnership Inc. v. Steve Bullock, attorney general of Montana, No. 11-1179 is particularly ironic given that the population in Montana overwhelmingly (as in 3 to 1) used their votes last Tuesday to call for an amendment to overturn the ruling. Montana, along with Colorado, became the first states to do so by voters, but they joined a list of nine other states calling for an amendment of this sort. These voters seem to represent the voice of most Americans as a whole. A September AP pollshowed that 82% of Americans are in favor of capping corporate spending on elections.
With the most expensive election in history just behind us, it seems that the American people are noticing a disparity in fairness in terms of corporate voice. When corporations are able to spend unlimited amounts of money to persuade voters, they are able to buy unprecedented commercial time, airwaves, billboards, and influential literature without disclosing the true financiers of the influential endeavors. Corporations have been recognized as “people” for nearly 200 years, but they are not afforded every single right of humans. For example, corporations have the capability to enforce contracts as people do, but they do not have the right to vote. Perhaps the American people are showing that they would like to take back the right of corporations to use their finances as unfettered speech. While Americans may understand that some things just aren’t fair, they are unwilling to accept this unregulated corporate financing of elections as one of those inherent injustices. This seems to be something that we, the people, might want to change with our own political action, well-funded or not. On the other hand, should we continue down this path and uphold the idea that corporations have the same rights as other persons then corporations may have to accept that they will have additional duties and responsibilities, similar to those of human beings. For instance, the Supreme Court last month also heard a case regarding whether the Alien Torts Statute (ATS) applies to corporations Kiobel v. Royal Dutch Petroleum. ATS is a centuries old statute that, after a seminal case in 1980 Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980) became a strategy of choice for human rights advocates to hold individuals liable for their role in torture and other extreme human rights abuses.
Although no one during oral arguments discussed the issue of corporations as being persons, the questions presented highlighted the issues succinctly:
“1. Whether the issue of corporate civil tort liability under the Alien Tort
Statute (“ATS”), 28 U.S.C. § 1350, is a merits question, as it has been treated by all
courts prior to the decision below, or an issue of subject matter jurisdiction, as the
court of appeals held for the first time.
2. Whether corporations are immune from tort liability for violations of the
law of nations such as torture, extrajudicial executions or genocide, as the court of
appeals decisions provides, or if corporations may be sued in the same manner as
any other private party defendant under the ATS for such egregious violations, as
the Eleventh Circuit has explicitly held.”
While the justices Ginsburg, Kennedy and Sotomayor, alluded to the idea of a distinction between individuals and corporations, it seemed almost exclusively within the context of establishing jurisdiction. Nonetheless, it seems hard not to imagine that this idea – how we, as a society, treat corporations versus how we treat individuals – was the elephant in the room that day. Right now, it seems clear that if it were individuals who had committed the types of atrocities for which the corporation is accused, there would be no question as to the appropriateness of bringing charges under ATCA. The fact that the perpetrator is instead a corporation raises a whole host of jurisdictional issues that makes it much more difficult to construe any accountability framework.
A ruling in favor of the Royal Dutch Petroleum Company would highlight what many of us seem to know and accept intrinsically – that despite their legal status as persons, there is something inherently different about corporations as compared to human beings. However the way in which the Supreme Court seems ready to highlight this distinction is directly at odds with how many Americans would choose to highlight that difference. Most individuals can’t spend money the way that corporations can and, those that can must disclose how much they’ve spent. Corporations need not. According to the AP poll mentioned earlier many Americans believe that corporations should be treated differently because of this. Unfortunately, the way that the U.S. Supreme Court seems prepared to illuminate that difference is by holding that individuals can be held liable under ATCAwhile corporations cannot. As one commentator has stated – “a more startling paradox is difficult to imagine.”
