The Long March of the Corporate Rights Movement

WHO TOPS YOUR LIST of civil rights leaders? Rosa Parks? Martin Luther King Jr.? Susan B. Anthony?

Adam Winkler’s We the Corporations: How American Businesses Won Their Civil Rights suggests that you may be missing the most powerful leader of them all: corporations. Winkler’s wide-ranging and meticulously researched narrative tells the story of the two-century-long corporate rights movement that has remained largely unnoticed despite winning “the lion’s share of constitutional protections.”

Winkler begins with a startling statistic that reveals just how successful corporations have been in claiming their civil rights. Between 1868 and 1912, the Supreme Court heard 604 14th Amendment cases. Although the Amendment’s purpose was to secure the rights of newly freed slaves, only 28 of those cases involved African Americans — and most lost. The Court largely upheld discriminatory laws, such as the “separate but equal” public facilities at issue in the 1896 case Plessy v. Ferguson.

Corporations brought 312 of the 604 cases — and won most of them. Winkler argues that corporations transformed the 14th Amendment from a law intended to “shield the former slaves from discrimination” into “a sword used […] to strike at unwanted regulation.”

Corporations were strategic in how they earned their rights. Winkler’s history of the corporate rights movement illustrates how “corporations are both adept constitutional leveragers and creative constitutional first movers.”

In some instances, corporations “successfully exploited constitutional reforms originally designed for progressive causes.” Take the 1976 case of Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council. A Virginia ban on advertising drug prices made it difficult for consumers to find the best prices from local pharmacies. In response, a consumer advocacy group challenged the law on behalf of pharmacy customers. The advertising ban, they argued, restricted the right of consumers to hear what a pharmacist had to say and thus violated the consumers’ “right to know” under the First Amendment. The Supreme Court agreed, reasoning that First Amendment protection extends not only to the speaker, but also to the recipient of the speech. As a result, commercial advertising was constitutionally protected by the First Amendment.

In the years following the ruling, Winkler explains, “the doctrine created by Virginia Pharmacy would rarely be used by consumers.” Instead, corporations used Virginia Pharmacy to expand their own rights. The tobacco and liquor industries cited the case to challenge restrictions on tobacco and alcohol advertising. Casinos invoked their commercial speech rights in overturning restrictions on television and radio advertising. Dairy producers invoked their free speech rights to defeat requirements to disclose the use of hormones. The case that had begun as a victory for consumer rights had turned into “a poignant, First Amendment version of buyer’s remorse.”

Other times, however, corporations have been “at the cutting edge of constitutional litigation.” Indeed, Winkler argues that “numerous individual rights Americans hold dear today were first secured in lawsuits involving corporations.”

Corporate newspapers in Louisiana were among the first movers to secure more robust rights to a free press. Frustrated with the media’s lack of support for his policies, Louisiana governor Huey Long set out to silence his critics. In 1934, Long persuaded the state legislature to pass an advertising tax on large-circulation newspapers. “[L]ying newspapers should have to pay for their lying,” Long reasoned.

In spite of precedent suggesting that corporations lacked liberty rights, the newspaper corporations under attack filed suit against the tax. The case reached the Supreme Court, where the newspapers argued that the Founders had intended the First Amendment “to protect against any law that stifled or censored speech because it opposed government orthodoxy.”

The Court declared the tax unconstitutional. As the public’s main source of information, media corporations had to be protected by the First Amendment. Thanks to the newspapers’ litigation, the Court now recognized that the government could not limit the circulation of information.

Other landmark cases Winkler describes in which corporations led the fight under the First Amendment include the 1971 decision by the Supreme Court preventing President Richard Nixon from stopping publication of the classified Pentagon Papers. Here “the constitutional claimant was not leaker of the documents Daniel Ellsberg but the New York Times Company and the Washington Post Company.” The New York Times Company also features in the 1964 Supreme Court ruling establishing the right to criticize public figures without fear of libel.

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So how did corporations come to earn these rights? Neither the Constitution nor the Bill of Rights, after all, mentions corporations. Winkler’s study of the founding era reveals that corporations “were quite rare.”

Winkler attributes much of the corporate rights movement’s success to a “conspiracy” led by one lawyer’s “secret, purposeful effort to mislead the justices.”

That lawyer was Roscoe Conkling. As a member of Congress’s Joint Committee on Reconstruction, Conkling helped draft the 14th Amendment. He was also an incredibly well-respected advocate. One justice referred to Conkling as “the best lawyer who comes into our court”; another admitted that “[n]o man ever came into our court who was listened to with more undivided attention than Roscoe Conkling.”

In 1882, Conkling appeared before the Court to argue San Mateo County v. Southern Pacific Railroad Company. On the surface, the case was nothing more than a simple tax dispute. Southern Pacific was challenging a California law that prohibited railroads, but not individuals, from deducting mortgages when calculating the value of their land for tax purposes.

Conkling was determined to make the case far more consequential. “I come now to say,” Conkling began his argument, “that the Southern Pacific Railroad Company and its creditors and stockholders are among the ‘persons’ protected by the Fourteenth Amendment of the Constitution of the United States.” Conkling argued that the drafters of the 14th Amendment had intended for the law to protect corporations. As proof, Conkling claimed the drafting committee changed the language of the Amendment so that it protected “persons” rather than “citizens.” The reason for this change, Conkling argued, was to extend the Constitution’s protections to artificial persons such as corporations.

The justices were skeptical of Conkling’s argument, and for good reason. Howard Jay Graham, a leading expert on the 14th Amendment, later studied Conkling’s claims and found them to be all but fraudulent. Contrary to Conkling’s argument, the language of the 14th Amendment was never revised to cover corporations — the drafting committee had consistently used the word “person.” Conkling’s argument, Graham concluded, was “a deliberate, brazen forgery.”

Although the parties in San Mateo settled before the Court issued an opinion, the railroad would soon appear again before the Court. In 1886, the justices heard oral argument in Santa Clara County v. Southern Pacific Railroad Company — a case challenging the same California railroad tax rules as in San Mateo. This time, the Court ruled in favor of the railroad, but on narrow grounds. The opinion made no mention of corporate constitutional rights under the 14th Amendment. The Court simply ruled that the tax assessments were improperly calculated.

Santa Clara, however, has a different legacy thanks largely to one of Conkling’s co-conspirators: J. C. Bancroft Davis. Davis wasn’t a lawyer or judge, but a court reporter. It was Davis’s job to write brief summaries to the Court’s opinions that would precede the published decisions. As the former president of a railroad corporation, Davis apparently couldn’t pass up the opportunity to make a lasting mark on the corporate rights movement.

Davis’s headnote quoted the Chief Justice as having said that, “The Court does not wish to hear argument on the question whether […] the Fourteenth Amendment […] applies to these corporations. We are all of the opinion that it does.”

The Santa Clara opinion, of course, made no mention of whether corporations were protected by the 14th Amendment. Indeed, Davis had been told by the Chief Justice that the Court had “avoided the constitutional question in the decision.” Yet according Winkler, Davis’s headnote effectively stated that “the Supreme Court had ruled that corporations were entitled to the protections of the Fourteenth Amendment.”

There was no turning back after Santa Clara. In several subsequent cases, the Court cited Santa Clara as holding that the 14th Amendment protected corporations. The misleading headnote gave corporations “new constitutional tools to use in their fight against unwanted regulation.”

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Winkler devotes the final chapter to Citizens United v. Federal Election Commission, one of the most recent and hotly contested corporate rights cases. By this point, Winkler has already proven his point. Citizens United is not, as many characterize it, a radical corporate rights decision. Rather, it was “the most recent manifestation of a long, and long overlooked, corporate rights movement.”

The case begins when Citizens United, a nonprofit advocacy corporation, sought to challenge a federal law that prohibited corporations from using general treasury funds to advocate the election or defeat of a candidate, a position that “no one thought could be won.” Washington, DC’s top lawyers turned down the case. Winkler explains that Supreme Court precedent — which the Citizens United Court would overturn — prohibited corporations from using general treasury funds to influence candidate elections.

Citizens United eventually found its lawyer — Ted Olson, one of the lead attorneys in the challenge to California’s Proposition 8 — and the case made its way to the Supreme Court. Winkler writes that Justice Samuel Alito was “most responsible for transforming Citizens United from a relatively minor case chipping away at the Bipartisan Campaign Reform Act to a landmark ruling on the free speech rights of corporations.”

He did so with one question during oral argument. If Congress could prohibit an ad mentioning the name of a candidate because it was financed with corporate money, Alito asked, could Congress also prohibit the publication of a book mentioning a candidate if it were financed with corporate money? That question, Winkler argues, transformed the case from one “about the applicability of the Bipartisan Campaign Reform Act” to Citizen United’s documentary to one about “whether the government could ban books” and “about broad, foundational questions of free speech and censorship.”

The rest is history. Because the Court had not asked the parties to address the question of whether the Bipartisan Campaign Reform Act provisions were unconstitutional in their entirety, a second hearing was scheduled for Citizens United. But Winkler argues that the second round was simply a formality: “the outcome was a foregone conclusion. The justices had already decided the government was going to lose — and corporations were going to win.”

Citizens United did indeed expand corporate rights. The Court overruled Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission, “the two most important precedents for restricting political speech by corporations.” Yet Winkler contends that “it would be a mistake to view Citizens United as a novelty, as an ungrounded invention of the Roberts court with little basis in law or history.” The corporate victory was simply the latest in the two-century-long corporate rights movement.

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We the Corporations is a must-read for anyone interested in the corporate rights debate. As Winkler notes, Citizens United is one of the Supreme Court’s most controversial decisions. Yet most people who criticize (or praise) the Court’s decision don’t understand the backdrop on which it was based. Winkler advances an important and powerful point: corporations held most of the same rights as natural persons long before Citizens United.

Winkler’s account also leaves us with some important issues that warrant further consideration. One example is the role of wealth in our justice system. Winkler attributes corporations’ astounding success to their having “the brightest, most able lawyers of the day.” Because corporations “have the financial means to hire the best lawyers,” Winkler contends that they have been able to pursue “cutting-edge, push-the-boundaries lawsuits” that others cannot afford.

Winkler’s point is especially well taken given the nature of Supreme Court litigation. Unlike other federal courts, the Supreme Court has nearly boundless power in deciding which cases to hear. Parties wishing to appeal their cases to the Supreme Court must file certiorari petitions — legal briefs that argue why the Court should agree to hear their case. The number of petitions accepted by the Court has varied throughout its history, but in recent decades has been extremely small. During the 2016–’17 term, for example, the Supreme Court heard only 76 of the 6,305 appeals it received.

Alongside this reduction in the number of cases heard by the Court has been the rise of what is known as the Supreme Court bar. As Winkler explains, starting in the 1980s, several major law firms created specialized Supreme Court practice groups. Accumulated experience provides these attorneys with specialized knowledge as to what the justices consider when deciding whether to accept a certiorari petition. In recent years, an increasing number of cases accepted by the Court have been argued by these attorneys. In fact, scholars studying the certiorari process have concluded that the “justices and clerks on the Supreme Court can make quick assessments of the likely merits of a certiorari petition based on the attorney on the petition.”

Affording a lawyer with such expertise in Supreme Court litigation isn’t cheap, and corporations are some of the only clients that can afford their services. One study found that between 2004 and 2012, members of the Supreme Court bar filed over half of their appeals on behalf of for-profit, business corporations.

Winkler does not offer a position on this phenomenon, but it warrants consideration. The rise of the Supreme Court bar has been controversial. Some say it is a positive development because these seasoned advocates know how to stress the kinds of arguments that make a case seem most attractive for review to the justices. Others argue that the Supreme Court’s docket should not be so dependent on the cases that this small group of repeat players — most of whom are white men who represent business interests — bring before the Court each year.

There is also the question of whether the justices ought not to give such great weight to cases brought by the Supreme Court bar. Federal judges must swear or affirm that they will “do equal right to the poor and to the rich.” When asked about her interpretation of this oath, Justice Sonia Sotomayor recently commented, “I don’t look at the names of the lawyers who are arguing the cases before me […] that’s always been my way of controlling the influence of money and the quality of lawyering that it could buy.”

But Justice Sotomayor’s interpretation of the oath may be unique. Most justices have embraced the rise of the Supreme Court bar. Justice Anthony Kennedy has said that members of the Supreme Court bar are “basically […] just a step ahead of us in identifying the cases that we’ll take a look at.” Justice Clarence Thomas says that, “[a]ny number of people will vote against a cert petition if they think the lawyering is bad.” Justice Ruth Bader Ginsburg agrees that the justices prefer “two people making the best argument on both sides.” It is “just a reality” that “[b]usiness can pay for the best counsel money can buy.”

We the Corporations ends with an anecdote that illustrates the importance of this issue. Winkler writes that residents of Mora County, New Mexico, recently sought to enact a countywide ban on fracking. John Olivas, the leader of the effort, drafted the Mora County Community Water Rights and Local Self-Governance Ordinance, which “declared that the oil and gas companies who wanted to frack in the county had no constitutional rights.”

Oil and gas corporations, of course, swiftly challenged the ban in federal court. And they won. The court presiding over the case ruled in the corporations’ favor, explaining that “[i]t is well established […] that corporations have constitutional rights.” Winkler attributes the New Mexicans’ loss not only to precedent but also to the fact that they “lacked the resources to be able to compete with the oil and gas giants.”

The effort to turn back the remarkably successful corporate rights movement would have to wait for another day — and another, more deep-pocketed challenger who, like the wealthy and powerful corporations that fought to gain constitutional rights over the course of American history, could afford the costs of litigation.

Winkler’s thought-provoking tale leaves readers to reflect on what, if anything, should be done about the corporate rights movement. Should corporations have “a considerable share of the Constitution’s most fundamental protections” — protections that women and racial minorities earned only after overcoming “historic struggles”? And if the rights of corporations should be pared back, how should that be done?

These questions are as important as they are timely. In the wake of Citizens United, corporations have rushed to the courts to claim an ever-broadening range of liberties. In 2014, corporations won again when the Supreme Court ruled that corporations have religious freedom rights under a federal statute that protects the rights of “persons.” This term, the Court will decide whether corporations can be sued in US courts for human rights abuses and terrorism committed abroad.

We the Corporations may not leave you with suspense as to the result of such cases — the corporations will likely win — but it will make you think critically about one of the most consequential yet understudied civil rights movements.

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Ryan Azad is admitted to practice law in California after receiving his JD from the UCLA School of Law. He currently serves as a judicial law clerk. He was a law student in Adam Winkler’s corporate rights seminar and is thanked by Winkler in the book’s acknowledgments.

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