This is an argument between friends - the conservative says "Move to Amend" is a Progressive idea. The Liberal says it is a "Conservative" one. Yours truly is the Liberal and author.
Why would limiting the “rights” of corporations to pour unlimited and unaccountable $$s into political action be “conservative?”
First we have to think about what a corporation is. It is a legal fiction, a construct to allow the human owners of the corporation to limit their liability in regards to the action it takes. This was a sensible idea when corporations were formed and given these protections of limited liability for fixed actions (say, digging a canal) for fixed periods of time (usually 20 years, with charters renewable or revocable by the State of incorporation). At that time, corporations still had to show a net public good to have their charters granted and/or renewed.
But in the wake of Standard Oil of Ohio getting states to bid on its domicile to avoid antitrust issues we lost the protection from corporations because New Jersey outbid everyone else to house Mr Rockefeller’s company (well, almost, but Delaware was late to the game with the better bid).
So what do we have now? A regulatory scheme that no longer wields the threat of disincorporation (or “death” if you want to take the legal fiction of personhood to its logical conclusion). Continued limitation of liability for actions taken not in the public interest. Legal precedence that supports the highest duty of a corporation to make profit for its shareholders. Ever increasing fractionalization (public trading) of the ownership of any corporation which creates greater anonymity for the beneficiaries of corporate actions in pursuit of profits.
To the idea of amending the Constitution to remove the fiction that a corporation is a “person” which includes rights beyond ownership of property; Why would this be a “conservative” view?
Well, to be conservative usually means to hold to forms, practices and patterns that are time-tested, that is to say they’ve been around a while and the conservative would rather not change them (for any number of reasons). But if a corporation is not today what it was yesterday then by definition we have “liberalized” our view of what a corporation is. In this liberalization, we have allowed things that do not have a life span (as a human would), cannot face the same consequences for action that a human person does, and can amass huge amounts of capital (the source of all power in a capitalistic society) which is then used to continue its greatest fiduciary responsibility - that of making even more capital for its owners – to operate in ways that do not benefit the society that allowed its creation in the first place!
I agree with you that the New York Times is a corporation that given the First Amendment has power that Monsanto (for example) does not if the capital of Monsanto in not allowed to be considered “speech.” But 2 things here: 1) As we’ve agreed before, the First Amendment specifically calls out “freedom of the press” and, 2) Due to liberalization of the laws regarding how corporations act within the society that creates and regulates them, we have decoupled corporate entities from any real “human” consequence. Civil penalties may be similar, if you can get a multi-billion dollar corporation to the point where it might actually pay them (see Exxon Valdez for example).
But when you have an unending lifespan and pockets deeper than any one person or government that would take you to task, what is the real penalty? You spend cash defending yourself until all other litigants are dead or the government runs out of money to try you, and then you write off that cash on your taxes as business expense, penalizing the people whose very government allowed you to exist and who will now have to cover that tax loss somewhere! And I don’t think I have to say anything about penalties for criminal actions. For every Bernie Madoff (who is only in prison because he admitted his crimes to protect his family) there are a thousand Tony Haywards walking free.
To circle back to my original point, it seems to me to be a conservative idea to return to the concept that we allow corporations to exist, with all their limitations on liability if and only if they serve the society that authorizes them in the first place. This was the idea of the Founders; as you’ve heard me say elsewhere Jefferson wanted “Freedom from Corporations” to be part of the Bill of Rights! And Bostonians began the Revolution by not a tax protest against higher taxes as the Tea Party claims, but by attacking a Corporation’s property because that corporation was acting in a predatory manner (controlling imports with special tax breaks for itself that harmed local trades).
Therefore, it is the “liberalization” of the legal and regulatory structure that brings us to a point where humans become subservient of their Frankensteinian creations. So to take a “conservative” view, we should amend our laws to make it clear that we will be served by the corporate structure and not the other way around.
Ps – given that the SC never ruled that corporations were entitled to personhood and that only occurs in headnotes to Santa Clara County v Southern Pacific this shouldn’t even be a “liberal vs conservative” argument. It should simply be one of common sense! But that’s a whole ‘nother argument.
Pps – You used progressive and conservative in your email to me. It isn’t really progressive thought that has allowed the change in practice regarding corporations, so I had to use the word liberalization as a close synonym for what I was trying to compare to conservative. To me this whole argument isn’t liberal v conservative, but more like what you say, progressive v conservative. What we have now are conservatives who want to keep the forms of the last 140 years since Santa Clara but ignore the 100 years that preceded that case. This is because the conservative politicians today are more clearly described as corporatist while the progressives are derided as socialist.