The Corner

Corporations Can’t Have Consciences, Unless They Oppose Mike Pence

Watching the protests against Indiana’s new religious freedom law this week, I have been struck by something rather interesting: namely, by how abundantly happy people who are usually critical of corporations have been to recruit them to their side in this case. Reporting on the “backlash” on Friday, CNBC recorded that:

Big corporations were among the loudest critics. Columbus, Indiana-based Cummins, the world’s largest diesel engine maker, opposed the new law in strong terms. “Cummins believes it’s bad for business and bad for Indiana and sends the message that the state is unwelcoming,” a Cummins spokesman said. “We are a global company in a competitive environment and it could hinder our ability to attract and retain top talent.”

Elsewhere, the IndyStar confirmed that:

A number of companies, organizations, athletes and other high-profile voices have expressed strong opinions to Indiana Gov. Mike Pence signing the controversial “religious freedom” bill into law last week.

In the Washington Post, meanwhile, Phillip Bump noted that:

since the the bill was signed last week, businesses like the NCAA and Apple have expressed similar concerns.

These corporate protests were noted and praised, on social media and beyond.

But hold one moment! Who exactly “has expressed similar concerns”? Who has been “among the loudest critics”? What has “signaled its intentions to boycott Indiana”? Who has “expressed strong opinions”? Who has “lined up to boycott the state in response”? We were told at the time of Hobby Lobby that companies can’t have consciences. We were told that they can’t have feelings. We were told that they can’t corporately opine on moral or legal questions as might an individual, and in consequence they can’t be worthy of praise or admonition. What, one wonders, has changed? It couldn’t be, could it, that progressives are opposed to the idea that corporations are entities that are capable of holding opinions and taking political stands . . . until they are needed in a fight that they care about?

In political circles, it is common to hear it asserted that in Citizens United (2010) the Supreme Court invented a couple of legal principles from whole cloth, and that these decisions now represent a threat to American democracy. Those are:

  1. that “corporations are people,” and that they are in consequence entitled to the same rights as are living, breathing, human beings.
  2. that corporate speech is protected by the First Amendment.

As it happens, this line of argument is entirely wrong. In fact, American companies have been treated as people under the law for almost two centuries now, while their freedom of expression has been inoculated against government intrusion since the early days of the Second World War. Insofar as Citizens United changed anything dramatically, it was to extend these principles more fully into the realm of political advocacy and to confirm that the federal government was prohibited by law from banning corporations, unions, non-profits, and other associations from engaging in or funding explicitly political speech. It was not to invent the idea that “corporations are people” or to establish the idea that corporate speech is protected by the First Amendment.

But that’s rather besides the point, isn’t it? Why? Well, because regardless of when these ideas actually entered American legal precedent, they remain unpopular on the Left. Back in 2012, Elizabeth Warren caused something of a stir when she slammed Mitt Romney for his (correct) observation  that corporations do not pay taxes, people do:

After all, Mitt Romney’s the guy who said corporations are people. No, Governor Romney, corporations are not people. People have hearts. They have kids. They get jobs. They get sick. They thrive. They dance. They live. They love. And they die. And that matters. That matters. That matters because we don’t run this country for corporations, we run it for people.

This line has since been echoed by Barack Obama.

Indeed, as Adam Liptak observed in the New York Times last week:

Liberals used to love the First Amendment. But that was in an era when courts used it mostly to protect powerless people like civil rights activists and war protesters.

These days, a provocative new study says, there has been a “corporate takeover of the First Amendment.” The assertion is backed by data, and it comes from an unlikely source: John C. Coates IV, who teaches business law at Harvard and used to be a partner at Wachtell, Lipton, Rosen & Katz, the prominent corporate law firm.

“Corporations have begun to displace individuals as the direct beneficiaries of the First Amendment,” Professor Coates wrote. The trend, he added, is “recent but accelerating.”

. . .

Tim Wu, a law professor at Columbia, described the shift in First Amendment doctrine in 2013 in The New Republic.

“Once the patron saint of protesters and the disenfranchised, the First Amendment has become the darling of economic libertarians and corporate lawyers who have recognized its power to immunize private enterprise from legal restraint,” Professor Wu wrote.

Fair enough. In which case, I have a couple of inquiries. The first: why are we being told that “companies” are taking a stand against Governor Pence? If companies do not have hearts or opinions, they cannot take stands. Why the lazy language? Second, I can only presume that all of those who oppose longstanding legal precedent in this area would remain entirely happy if Pence and the Indiana legislature decided to use the power of the government to silence Cummins, Angie’s List, Apple, and any other business that has the temerity to oppose the state’s new law? After all, laws are for people, not for companies, right? As Senator Warren tells us, “we don’t run this country for corporations, we run it for people.” As far as I see it, the people of Indiana voted for a government, and that government passed a law. Are we really going to let big money undermine the process in pursuit of bigger profits?

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