By ADRIAN JAWORT - For The Outpost
Paul Van Tricht says the 14th Amendment was key to the Supreme Court’s 5-4 decision in the Citizens United vs. Federal Election Commission case, which stated it was unconstitutional for Congress to limit corporate or union expenditures for elections.
Van Tricht, a Billings native, is a retired attorney and constitutional scholar who orally argued the Montana Department of Revenue vs. Kurth Ranch case involving the taxation of marijuana before the U.S. Supreme Court in 1994. He lost the decision 5-4. Van Tricht was the guest speaker at the Politics in the Pub meeting at Bone’s Brewery last week.
The 14th Amendment addresses what makes a citizen of the United States and guarantees equal protection under U.S. laws. Van Tricht said, “There’s nothing in the 14th Amendment or in legislative history or in state consideration in which they ever talk about corporations.”
The Supreme Court’s decision in favor of Citizens United granted corporations the rights of a person, in contrast to the Montana Supreme Court’s decision in the American Tradition Partnership case. The court’s 5-2 decision continued a ban on corporations from spending on political campaigns.
Montana’s Supreme Court decision - which was temporarily suspended by the U.S. Supreme Court in mid-February - stems from a 1912 law that sought to diminish the dominant mining company’s influence on elections at the time. The history of how corporations came to be regarded as people goes back even further than Montana’s century-old law, however.
Corporate monopolies gained considerable influence in the years after the Civil War - in particular the railroads. “For example: if you were shipping grain out of Yellowstone County, you had to use the Northern Pacific. The railroads took advantage of this and charged monopolist’s rates,” Van Tricht said. “The farmers had one recourse, and it was to vote.“
People elected legislators and judges who reined in the corporations, in spite of the corporations’ best efforts to fight back. However, in 1884 the Ninth Circuit court ruled unequivocally that corporations were people.
The California taxation case, Santa Clara County vs. Southern Pacific Railroad, went to the U.S. Supreme Court, which resolved it in favor of Santa Clara County, and the 14th Amendment was not discussed.
However, the head notes of the decision were written by the court reporter and attorney J.C. Bancroft Davis, who had been the former president of a railroad. Davis asked Chief Justice Morrison Waite if he said corporations were people so he could put it down in his notes. Chief Justice Waite said he may have said it, but he explained that the 14th Amendment was not addressed.
“It was a colossal mistake by the court reporter,” Van Tricht said of Davis’ choice to mention in the head notes that corporations were people. Armed with a constitutional prerogative, “When the railroad companies saw the head notes, they took it and ran with it for all it was worth.”
Van Tricht said only three chief justices - William Douglass, Hugo Black and William Rehnquist – have ever looked into the case and mentioned there’s nothing about corporations being a person under the 14th Amendment.
“It’s not necessarily a conservative or liberal idea,“ Van Tricht said, noting the late Chief Justice Rehnquist was a conservative. “He said, ‘Where did we get this idea?’ Because he actually took the time to read the case. It’s the first thing they tell in law school: you can’t rely on the head notes. Head notes are meaningless; you have to read the whole case.”
As a result, corporations have all the constitutional rights American citizens have, Van Tricht said, “except they don’t have the right not to ‘witness against themselves’ as in the Fifth Amendment; they have not yet gotten the rights of the Second Amendment - which is the right to bear arms. But probably one of these days a gun manufacturer is going to claim they’re a person and the state cannot legally restrict their gun manufacturing! They can’t be accountable under the Third Amendment for the quartering of troops, and corporations cannot be held with excessive bail, which is the Eighth Amendment. If you don’t have a body, you can’t be put in jail.”
If the United States wants to overturn the assumption that corporations are a person, they’d have to get an explicit constitutional amendment that says so, like Democratic Congressman Jim McGovern’s amendment called the People’s Rights Amendment.
McGovern said in a news release about his proposed 28th Amendment: “Corporations are not people. They do not breathe. They do not have children. They do not die in war. They are artificial entities which we the people create and, as such, we govern them, not the other way around.”
Another option is to get the Supreme Court itself to reconsider and get a reversal of the case, Van Tricht said. Laws restricting the lack of civil rights of blacks were overturned, after all.
On a local level, Missoula; Boulder, Colo.; and Madison and Dane County, Wis., have passed nonbinding ballot measures with strong support stating essentially that money is not free speech, and corporations are not people. Other large cities – including Los Angeles, Portland, and New York – have passed resolutions in favor of the proposed 28th Amendment.
“Chief justices aren’t weathermen, but they know which way the wind is blowing,” Van Tricht said. “If enough public pressure is presented to them, they can change their minds. There’s a good case to be made about corporate personhood, because they never did a thorough constitutional, legal decision on the issue.”
The case for Citizens United is that it would restrict free speech as protected in the First Amendment, and it was merely assumed that corporations were people. “The First Amendment does not mention persons, and is simply a restriction on Congress’ ability to govern free speech,” Van Tricht said.
The American Civil Liberties Union takes absolute positions on free speech, and as a result supports the Citizens United decision.
But the ACLU had a deep division in regards to the Citizens United decision, as its national support for it was decided in a 36-33 vote. Montana’s ACLU chapter said the issue is “nuanced,” and it supported Montana’s Supreme Court ruling against Western Tradition Partnership.
Defenders of the Citizens United case inevitably claim corporations are a collection of people, and therefore are no different than unions. Federal law restricts the use of union dues to make political contributions against members’ wishes, whereas with a corporation, there is little or no say over what happens with their money.
“Who’s going to direct the spending of money? The management, and they’re going to use whatever criteria they want, because there are no criteria,” Van Tricht said. “They can do it based on personal preferences.”
Van Tricht pointed out the Columbus-based Stillwater Mining Co. was owned by the Russian company Norilsk Nickel just two years ago, and would have been given the right as a person to support candidates.
“When addressing this issue, often times it’s not really a legal issue,” Van Tricht said. “It’s sort of an emotional, religious, philosophical, existential issue about who is a person, a human being, and are human beings somehow more special than corporations?”
To illustrate his point, Van Tricht pointed out Montana’s Justice James Nelson’s written dissent, which reads, “Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people – human beings – to share fundamental, natural rights with soulless creatures of government.”