Friday, November 13, 2009

Colbert on Corporate Personhood

As my final post, I felt I'd like to link to a different type of source than I previously have, as I would prefer this end with some humor.

Stephen Colbert of the Colbert Report nicely summarizes many of the points I have mentioned as part of this blog, including the Citizens United v. F.E.C. case still pending decision from the Supreme Court, as well as the Santa Clara County v. Southern Pacific Railroad case which effectively started this whole Corporates Rights issue.

When I began this blog, I had been hoping/anticipating that there might be some conclusion to the Citizens United case before the end of the quarter, and thus would give me a nice swan song to write about for the future implications of this blog's topic, but alas it was not to be.

The Supreme Court could decide the issue on narrow grounds which do not really change the status quo in any serious measure. Much less likely, considering the current Court's generally pro-Corporate and conservative bent, it could decide to continue to uphold restrictions against corporate influence on elections, but I wouldn't hold my breath. The fear that many have, and to which I share, is that this case may offer them a chance to further erode what restrictions we have against corporate influence in the election process. I'm sure the irony that such a move would be blatant judicial activism from a bloc that criticizes such activity would be lost of them.

Only time will tell, but until then, I thank the readers who've taken the time to read and comment on this project.

Friday, November 6, 2009

Issue of Corporate Taxes

Given that Corporate Personhood entitles Corporations to many (but not all) rights enjoyed by actual living, breathing, human beings, then one can certainly argue "by golly, they should pay like human beings too!" Benjamin Frankly is typically credited with making the statement that the only sure things in life are death and taxes. We already know that corporations more-or-less have defeated the death part by being perpetual entities (provided they are dissolved, nationalized, etc.). But what about taxes?

As entities, Corporations are theoretically taxed on their profits, and then when shareholders receive dividends on the profits, they are taxed on their individual incomes as well, leading to what is called "double taxation." Many people claim such a practice is unfair, and an example of a greedy government stealing away money from good ole everyday Americans. Of course, such a notion ignores the fact that much government spending benefits everyday Americans, whether it be through providing a national defense, emergency relief support, public road systems which facilitate transportation and commerce, support for education so people can earn a better life, and much more. It also ignores that "double taxation" basically occurs regardless of whether it involves a corporation or not. Say you earn a paycheck from work, which is naturally taxed as income. You then spend that already-taxed money buying groceries...well, guess what? You likely just paid a sales tax on the money you had earned, and the grocery store received payment from its sale, which will be taxed as income as well. It happens, it's not a mean anti-corporate conspiracy, deal with it.

This article from August 2008 details a report from the Government Accountability Office which studied corporate taxes in relation to corporate revenue. It determined that over a period from 1993 to 2005, 1.3 million U.S. companies each year paid no federal income tax. Another article, from "real Clear Markets," responded to the implications of the GAO report. It noted that the numbers reported by the GAO are misleading, as they compare corporate revenue to tax payments, not corporate profits. Corporations pay taxes based on their net profits, and if they had more expenses in a year than profits, naturally there would be no tax payment. The second article also contends that most corporations actually have a very narrow profit margin, at least compared to the revenue they may bring in. For example, a hypothetical company may bring in billions of revenue, but "only* rake in tens of millions in profit.

What I have to question is the legitimacy of some expenses. I have to assume that a normal person making $100,000 a year would still pay income tax on that $100,000 even if they had $110,000 in expenses over the year, as opposed to a corporation. U.S. corporate executives have notably higher salaries than executives in other countries such as Japan. The frequent argument made is that such high salaries are "necessary" to ensure that such apparently brilliant executives work for ones corporation instead of another. Given how some corporations continue to lose money even after hiring some of these people, it really calls into question the logic that these people are game-changing prodigies who are such excellent captains of the industry. We also hear about the lavish corporate parties that have been hosted at great expense, and obscene bonuses paid to officers even in times of debt and failing profits. Where is the accountability there? When one high-level executive alone is paid the same amount as hundreds or thousands of workers, I really have to question who is really the more valuable asset and should be the first to be cut in times of economic woe.

Friday, October 30, 2009

1st Amendment Touted as Protection Against Reform

For perhaps the first time during this project, I stumbled across a topic relating to my theme without specifically looking for it.

While reading the Huffington Post one morning, the front page headline was an article detailing the background and situation of credit rating companies defending themselves against lawsuits and reform on the basis that their ratings of bonds are "opinions" and therefore protected by a right to free speech.

Now, it certainly took me a couple of readings through the article to feel like I really generally understood everything, given that I have no background in investments and the like. Per my understanding of the article, companies such as Moody's, Fitch, and Standard & Poor's put out ratings of different bonds, which others then use as a determining factor in whether to invest in the bonds or not. An inherent problem though is that apparently the practice used by these organizations is to charge those who are issuing the bonds, rather than those who are looking to invest. Naturally, these creates a conflict of interest; after-all, you can charge more to give someone a higher rating, regardless of whether it deserves it or not.

A significant problem has been ongoing in the last few years in particular when many people lost their money investing in bonds which had been top-rated. Some have responded by attempting to sue these rating companies, but in response they have claimed, as mentioned above, that their ratings are "opinions" and thus they are not liable.

Now, I would agree that under normal circumstances, someone recommending something which does not turn out well should not lead to them being liable. "Hey, you should buy this beachfront property" followed by "Oh no, a hurricane destroyed everything, I lost money based on your suggestion, I'm suing you." However, the conflict of interest charging practices just make this too fishy. Lawyers cannot just freely give advice and expect to be protected by 1st Amendment Free Speech rights when their advice blows up in the client's face. And as mentioned by a commenter on the article, an appraiser may offer their "opinion" on how much something should be valued, but that does not give them carte blanche to say whatever they feel like saying. I cannot see how these companies should not be held to the same kind of standard.

The article did mention that the claims of freedom of speech do not protect them from fraud or anything of that nature, but specifically proving fraud in these circumstances does not sound like something that the ordinary investor would be capable of doing. These companies have also resisted strong, meaningful changes to their business practices by waving the 1st Amendment in peoples faces, again according to this article.

Even if no real legislation is passed curtailing these companies, as an investor I would have to ask myself "given how these guys operate, why should I trust their word anyways?"

Thursday, October 22, 2009

An Alternative View

In the spirit of providing more than one side of an argument, this week I decided to post a link to an article from Detroit News.com, written by two authors, including Hans Bader, a right-wing market advocate and senior attorney/counsel for "Special Projects" at the Competitive Enterprise Institute.

The aim of the article is to explain the reasoning for why corporations need human rights, despite not being an actual human being. The main gist of their argument is that without human rights, corporations could not realistically function, and without them the modern world economy would collapse as well.

As examples, they point out that if a a person/company wanted to buy a product from a corporation, without corporate personhood it would be necessary for all of the shareholders of that corporation to agree to sell, whereas corporate personhood allows the corporation itself to decide to do so. Their next example was that if someone wanted to sue the corporation, without corporate personhood it would be necessary to sue all of the shareholders instead, because the corporation otherwise would have no legal standing as an entity. And finally, they referenced the inherent inefficiency and cumbersome problem of having to pay all of the corporation's employees if the corporation itself was not allowed to issue the pay checks.

And in typical slippery-slope fashion, their argument becomes that by curtailing some human rights enjoyed by corporations weakens the rest of them, until they could all be taken away.

The context of their article arose in light of an antitrust lawsuit by the European Commission against Intel, where Intel objected to fines of $1.45 billion on the grounds that such a large penalty could only be imposed by a criminal court, not a an administrative civil matter as had occurred, and thus its human rights were violated due to a violation of due process.

Now, the problem I have with the arguments presented by the two authors of the article is that they are essentially just examples of procedural realities. It goes without saving that it is impractical and outright stupid to require all shareholders of a corporation to agree to all decision matters and the like; corporations run through a board of directors and managers for this very reason. However, I don't see how one can make the logical jump that affording corporations the practical considerations enumerated by the authors equates with corporations enjoying the same rights as human beings. They are not living, human beings, and should not be treated as such, plain and simple. They should be afforded the essential rights needed for practical operation of business, but anything beyond that should be a matter of legislation, not constitutional protection, as they are artificial entities.

Friday, October 16, 2009

New Supreme Court Justice Expressed Views On Corporate Personhood

This interesting article from the Wall Street Journal from last month describes comments made by the newest Supreme Court Justice, Sonia Sotomayor, during recent arguments made before the court on a "campaign finance case", which although not mentioned in the article is most likely that of Citizens United v. F.E.C., the case I spoke about several weeks ago.

The article states that Justice Sotomayor said this about the legal foundation of corporate personhood:

"[Judges] created corporations as persons, gave birth to corporations as persons....There could be an argument made that that was the court's error to start with...[imbuing] a creature of state law with human characteristics."

In effect, Justice Sotomayor appears to support the idea of curtailing certain corporate rights, which, as has been mentioned before, arose from a case over a century old which did not even speak about corporate rights in the court opinion but rather were stated as a comment by the then-Chief Justice and scribed by the court reporter.

Unfortunately, at least in my opinion, our current Supreme Court leans far too heavily in supporting corporate values at the expense of state and individual rights, and the conservative majority is likely to rule in favor of Citizens United, though the extent of their ruling is yet to be seen. However, there is optimism in seeing a sitting Supreme Court Justice mention the very artificial and dubious basis of the extension of corporate rights, and depending on how and when vacancies in the Supreme Court occur, significant changes may result in the not-too-distant future.

The article itself is a good, quick read, offering further insight into the history of corporate rights, and some cases on which the U.S. Supreme Court ruled. One worth mentioning was a case from the late 1920s wherein the Supreme Court struck down a state tax on transportation companies on the grounds that it did not tax taxi drivers as well, and thus it was struck down because it did not afford the corporations the same rights as the taxi drivers. Rationally it makes very little sense to me. Corporations are creatures of statute, and must abide by special provisions and regulations but also already receive special exemptions and protections...as such, how can it be defended that an entity that exists under such different rules automatically receives the same privileges of citizens who exist and abide under different rules?

Friday, October 9, 2009

Corporate Freedom of Speech or Commercial Speech?

I remembered having read about the case of Nike v. Kasky back in my Civil Liberties class at Wright State, but had largely forgotten it beyond the fact that I remembered it dealt with commercial speech issues. I subsequently reviewed the information surrounding the case and re-realized why it was important.

We all know at least the very basic idea of the 1st Amendment protection of certain rights, including freedom of speech. We generally accept such an idea as meaning we have the right to express our opinion on different subjects and that the government cannot prevent us from, say, disagreeing with a government policy, or not being allowed to criticize a Cincinnati-based national sports team (oh what kind of world would we live in in such a situation?). But most people are also aware that such rights are not without restrictions, such as the often referenced "you can't shout fire in a crowded theater."

As has been mentioned in previous posts, corporations are treated as entities, they are "persons" in many respects, and thus are accepted as possessing certain fundamental rights. So what about advertisements? Can a company sell snake oil and proclaim that it will cure cancer and give you thick, luscious hair? The short answer is "no" they cannot, under a concept called commercial speech (well, assuming the snake oil didn't somehow actually accomplish its claims). Essentially, if the speech acts as an enticement to do business with someone, then the government does have a right to restrict that speech (such as requiring that the advertisement be truthful and not a bald-faced lie).

Back to Kasky: in the 1990s and early 2000s, the corporation Nike came under fire for allegations of unethical labor practices (such as sweat shop labor). Nike responded to its critics with claims to the contrary. Nike was sued in California on grounds that its claims were commercial speech (after all, they were trying to keep people interested in buying their products) and as commercial speech they could be liable for false adverting. Nike countered that it was participating in public speech by speaking out on a public issue, i.e. labor practices. The Californian trial and appellate courts ruled in Nike's favor, but the California Supreme Court narrowly decided for Kasky, and ruled that Nike had participated in commercial speech, thus paving the way for another trial court case to determine whether the claims had been false or not.

Nike appealed the decision to the U.S. Supreme Court which subsequently decided to hear the case. Now the country would have a definitive decision on whether such a practice was an exercise of public speech or commercial speech.

Or not.

After agreeing to hear the case, the U.S. Supreme Court then later decided to not hear it.

Before the new trial case was decided in California, the parties settled. In effect, we were denied a definitive ruling on whether it was free speech or not, nor did we receive a formal ruling on whether Nike had indeed been misleading in its self-defense claims.

Some might consider this a check on corporation's unfettered ability to say what they want, whereas others may see the issue as an unfair restriction on corporations if ordinary citizens may criticize the company and make allegations against it but the company is handicapped in its capacity to refute such claims. For those interested, check out a Wall Street Journal editorial from 2003 after the Supreme Court had reconsidered its decision to hear the case.

Saturday, October 3, 2009

A Very Recent Corporate Personhood Topic

Courtesy of a New York Times article, viewable here.

During the primary season of the 2008 elections, an conservative organization known as Citizens United wanted to release a documentary about Hillary Clinton, which essentially sought to paint her in an extremely negative light. They group wanted to release it through video-on-demand, as opposed to directly on TV, but they were prevented from doing so due to campaign finance laws against corporations being so involved in the election process.

The group sought to fight the restriction, but was defeated at both the trial and appellate level, and the case was accepted by the Supreme Court. The Court heard arguments back in March, 2009, but decided to rehear arguments in September, and thus Citizens United v. Federal Election Commission was born.

Interestingly, liberal groups are divided on the issue, according to the article, with many against the perceived excessive corporate influence on the political process, and others, namely the American Civil Liberties Union, arguing against the government restriction of this kind of speech.

The original arguments before the court were initially fairly narrow in scope, but the decision to rehear the case likely belies the Court's intention to further consider potential ramifications of the larger issues at stake. Some fear that the Supreme Court's decision to rehear arguments, and in light of the fact of its conservative bloc majority's support of corporate positions, may overturn court precedent and eliminate federal restrictions against direct corporate influence on campaigning.

Given that the Supreme Court was set to rehear the arguments last month, it is likely that the formal opinion will be released in the not-to-distant future; until then, we will have to wait and see.

In essence, the question being asked is whether a corporation enjoys the same rights that a real living, breathing human-being does in terms of political advocacy. Should a corporation be allowed to say what it wishes about candidates or other issues, or does the inherent nature of a corporation make such allowances dangerous and toxic to a fair political process?