In oral argument on the Citizens United case, Justice Sotormayor said this:
[O]nce we say [State and Federal legislatures can't balance electoral process needs and First Amendment rights], except on the basis of a compelling government interest narrowly tailored, are we cutting off or would we be cutting off that future democratic process? Because what you are suggesting is that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court’s error to start with, not Austin or McConnell, but the fact that the Court imbued a creature of State law with human characteristics.
The ramifications of treating corporations as people are clarified in the case the SEC filed against Bank of America arising from the failure to disclose the billions in bonuses Merrill planned to pay its employees just before the merger late last year. Bank of America’s explanation is just barely more preposterous than the incomprehensible claims of the SEC. Here’s how the NYT explains the SEC’s case:
In seeking approval to buy Merrill Lynch last year, Bank of America told investors that Merrill would not pay year-end bonuses without the bank’s consent. But in its complaint filed Aug. 3 in federal court in Manhattan, the S.E.C. said Bank of America had already authorized Merrill to pay bonuses and had not shared that information with shareholders.
It’s a simple case: SEC says the proxy statement prepared by BAC contains a lie. The allegation is either true or false. BAC claims that none of its people are “culpable”, which probably means criminally liable, denies all wrong-doing, and says it only settled to avoid the risk of injury to its reputation.
The SEC explains that it settled that simple case without naming the responsible persons because it cannot figure out who did it either. Apparently the subpoena power Congress gave this once proud agency has withered to nothing, or their feeble lawyers are just not up to the task of rooting out the truth.
Earlier the SEC and BAC blamed the lawyers, and despite the insistence of Judge Rakoff, refused to name any bank executives responsible for the decision.
This is what comes of treating corporations like people. The corporate shield hides the guilt of their officers, directors and employees. No one is responsible for anything. If anyone gets close, the money grubbers explain that they relied on the lawyers. No one can be held to account. No one actually did anything. Certainly the SEC can’t figure out who it was that didn’t do anything.
It looks like five members of the Supreme Court want to let these amoral and irresponsible stewards of the rich dump shareholder money into the electoral process. Like the good little Chicago School true believers they are, the ideologues recognize that lobbying is expensive and uncertain; direct ownership is so much more economically efficient. After all, if corporations are persons, symmetry demands that they be able to own people, just like people own corporations.