Tester listens

U.S. Sen. Jon Tester questions Forest Service Region 1 Forester Leanne Martens in August 2015 during a meeting in Missoula about funding to pay for work on forest fires in the West this season. “That’s the biggest issue facing the Forest Service right now,” Martens told him.

The year is 2019. The government sends in a SWAT team to seize any corporate property it wants without the due process or just compensation required by the Fifth Amendment to the Constitution. The government also has the power to swipe bank assets, raid newspaper offices without warrants or just cause, and even censor any news published by a media corporation. No, it’s not the plot of a newly unearthed Orwell novel. These tactics, and more, would be legal under an amendment to the U.S. Constitution just introduced by Montana Sen. Jon Tester.

Tester’s amendment aims to strip rights from corporate entities. His amendment would provide that “(1) The rights enumerated in this Constitution and other rights retained by the people shall be the rights of natural persons; (2) As used in this Constitution, the terms ‘people’, ‘person’, and ‘citizen’ shall not include a corporation, a limited liability company, or any other corporate entity established by the laws of any state, the United States, or any foreign state.”

Senator Tester justifies his proposal by arguing that “a corporation doesn’t hop on the combine to try and get harvest done.” Well.

Seven years after Citizens United, the whole “corporations aren’t people” and therefore shouldn’t have rights bit is getting pretty tiresome. Certainly, our elected officials should be held to a higher standard of debate.

Yes, it’s true that if you’ve never thought about it, the idea that “corporations are people” seems absurd on its face. Corporations are not people, of course. But, for many purposes, it makes perfect sense that the law treats them as such. For example, if the law did not treat corporations as people, they couldn’t be sued.

The bigger point, though, is that corporations have rights because people have rights, and people form and own corporations. This is a principle as old as the American Republic, re-emphasized by the Supreme Court as early as 1819 in Trustees of Dartmouth College v. Woodward. A corporation, the Court noted, “is an artificial being, invisible, intangible, and existing only in contemplation of law.” But that didn’t mean that people gave up their rights when they formed a corporation. Rather, the decision emphasized that when people join together to accomplish things, they usually need some form of organization, and shouldn’t have to sacrifice their rights just because they organize. “Individuals…,” wrote the Court, “find it impossible to effect their design securely and certainly without an incorporating act.” Corporate rights are the rights people have when they act together.

Oddly enough, in the momentous Citizens United decision that prompts Tester’s proposal, not even the Court’s dissenters ever mentioned the issue of “corporate personhood.” Why? Because they all understood that corporate personhood is a longstanding doctrine that is not controversial in law, and was not what the case was about.

So let’s think about Tester’s reasoning. There are over 29,000 farms and ranches in Montana. Many of these are incorporated. And indeed, around the country a great many, perhaps most, “family farms” are incorporated. So in a sense, when your local family farmer gets to work, it is indeed a “corporation” who hops on that combine. In fact, Tester’s family farm is incorporated – it is T-Bone Farms, Inc. Does Tester think it should be illegal for him to post a political sign on his farm’s property?

Under Tester’s proposed constitutional amendment, the government could deprive him of a right to a jury trial any time a lawsuit involved his farm. The government could simply take his land, without due process, for any reason, and without compensation, all in violation of the takings clause. All this because, by incorporating his farm, he would give up his constitutional rights.

Constitutional amendments, such as that offered by Tester, will not pass in the next few years – but they indicate the general hostility to free speech that many senators have, and their willingness to silence speakers they don’t like. They also show the willingness to advocate rash and dangerous proposals to accomplish that end. In the long term, that should concern us all. 

Brad Smith is the chairman of the Center for Competitive Politics and the former chairman of the Federal Election Commission.

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